The passage of the Clean Air Act Amendments of 1990 represented the most significant recent development in environmental legislation. Only two prior clean air legislative efforts were comparable in magnitude to these sweeping changes the Clean Air Act of 1970 and the 1977 Amendments. Recognizing in 1977 that further changes were still needed, Congress established the National Commission on Air Quality to evaluate and recommend changes to the statute. Led by ML&B partner Bill Lewis, the Commission proposed major changes to a number of provisions to streamline the complex law. After an intense and often acrimonious debate in the early 1980s, Congress focused its attention exclusively on amendments that would accelerate the targeting of high priority areas for further pollution control.
The 1990 amendments contain a seemingly unending list of features; indeed, seven separate titles cover different regulatory programs. The amendments create a new galaxy of regulatory requirements that will have the effect of reducing air pollution emissions by requiring the installation of more advanced pollution control equipment as well as mandating changes in industrial operations and community lifestyles. In reviewing the amended Clean Air Act, we will briefly discuss the historical framework of the Act and four of its major programs nonattainment, air toxics, permits, and enforcement. We will also summarize the current status of EPA's efforts to implement those programs. Finally, because the states play a crucial role in implementing the Act's requirements, we will highlight, in operating permits addenda to this article, important features of state programs in California, Florida, New Jersey, New York, and Pennsylvania.
Until 1990, the entire national strategy to improve air quality was centered around the National Ambient Air Quality Standards (NAAQS) established under section 109. These standards were to be based on scientific determinations of the threshold levels of air pollution below which neither humans nor the environment would experience any adverse effects. EPA has established air quality standards for only a small number of the most common pollutants ozone, carbon monoxide, sulfur dioxide, nitrogen dioxide, particulates, and lead. See 40 C.F.R. Part 50.
The Clean Air Act places most of the responsibility on the states to achieve compliance with the air quality standards. The primary vehicle for implementation is known as the State Implementation Plan or SIP. In developing a SIP, each state is first divided into air quality control regions typically consisting of several counties or a metro area and surrounding counties. Then the state determines through statistical data whether and how much air pollution in each region exceeds the limits for each air quality standard. Control requirements are imposed to reduce emissions from the various sources in each area to achieve compliance. Under the 1977 Amendments, states were required to develop SIPs that would achieve attainment by 1982; however, the deadline for ozone was 1987. See 107, 110.
To supplement the basic system of air quality standards and controls imposed (primarily on industrial facilities) through the SIPs, the Clean Air Act also includes a number of other important control efforts. The most significant of these are as follows:
To achieve the ozone and carbon monoxide air quality standards, Congress placed a heavy emphasis on reducing emissions from cars and other vehicles. For hydrocarbons (a precursor to ozone) and carbon monoxide, Congress imposed tailpipe standards requiring emissions reductions of roughly 96%-98%. Slightly less control was required for emissions of nitrogen oxides. See 202-250.
Although much of the control effort was directed at existing facilities, Congress required that EPA establish new source performance standards for new and modified facilities which reflect the best demonstrated technology for a given source category. More than 60 categories of sources are now subject to these special standards. See 111; 40 C.F.R. Part 60.
The 1970 Act authorized EPA to set National Emission Standards for Hazardous Air Pollutants (NESHAPs). The statute required that these standards protect public health with an ample margin of safety, and the scientific understanding of cancer suggests that there is no threshold below which exposure is safe. As a result, EPA found the statutory directive largely unworkable. NESHAPs were promulgated for only seven substances under old section 112. See 40 C.F.R. Part 61.
A special feature of the clean air program, added primarily by the 1977 Amendments, applies to the construction of new plants or projects that increase emissions through the expansion of existing plants. The statute establishes two kinds of pre-construction review depending on the attainment status for the plant location.
In areas that already satisfy air quality standards, special rules have been implemented to prevent a significant deterioration in air quality. The PSD requirements require review of new major sources and of major modifications to such sources, installation of best available control technology, careful monitoring of air quality conditions, and a limiting of the increment of clean air that may be polluted by industrial projects. See 163, 165.
In areas that have not achieved attainment of the NAAQS, the restrictions are more severe. Major new projects must install the lowest achievable emission rate technology (the most stringent in use anywhere) and must also offset emissions increases from the project. See 173.
Because most major urban areas still exceed one or more of the NAAQS, Congress substantially amended the Clean Air Act requirements for nonattainment areas. The amendments establish the most comprehensive scheme for areas not attaining the ozone standard and also contain new provisions directed at meeting other air quality standards as well.
The amendments attack nonattainment problems with a broad array of new requirements. These include tighter standards for emissions from motor vehicles, the use of alternative clean fuels, additional controls on industrial facilities, and a variety of other control measures. Some of these requirements will be added through revised State Implementation Plans, while others will result directly from the statute and federal regulation.
Pursuant to section 109, EPA is obligated to review the NAAQS periodically and to promulgate such new standards as may be appropriate. If a standard is made more stringent, additional areas will presumably become nonattainment areas, and current nonattainment areas will be required to take additional steps to achieve attainment. Citizen suits have been brought to compel EPA to determine whether the ozone standard and the particulate matter standard should be revised. In addition, EPA's previous decision not to revise the ozone standard has been judicially challenged, and that challenge is still pending in the D.C. Circuit.
Requirements that existing major sources install reasonably available control technology continue to have very direct consequences for industry. To achieve the ozone standard, EPA must issue a new wave of control technique guidelines and other control guidance defining technological controls for all sources of volatile organic compounds and nitrogen oxides emitting more than 25 tons per year. See 172, 182, 183.
Revised State Implementation Plans are required for all nonattainment areas. Deadlines for achieving the standards are based on the severity of an area's pollution. For ozone, nonattainment areas are broken down into five categories marginal, moderate, serious, severe, and extreme. For marginal areas, attainment must be achieved within three years (by November 15, 1993), but areas with higher ozone levels have longer periods. The ultimate date for attainment is 2010 for Los Angeles, the only extreme ozone area.
The revised ozone SIPs (for all but marginal areas) must achieve attainment by the final deadline and must demonstrate a total net reduction in emissions below the base year inventory. These percentage reductions are: 15% during the first six years (through November 15, 1996) and 3% per year thereafter. These progress requirements will impose additional specific controls on individual industrial facilities.
Revised SIPs for serious, severe, and extreme ozone nonattainment areas were due in November 1994. Because of the complexity and difficulty of the task, many states have been unable to meet the statutory deadlines for submitting complete, revised SIPs for nonattainment areas. EPA has determined, however, that states will not be subject to sanctions until 18 months later (May 1995). In addition, EPA has announced that it will allow states to submit plans achieving only 80 percent of the required reductions if accompanied by a commitment to achieve the remaining 20 percent by a specific date.
The amendments also toughen the requirements applicable to construction of new major plants and major modifications to existing plants. Until now, only sources with the potential to emit 100 tons per year of a regulated pollutant were subject to new source review in nonattainment areas. Under the amendments, however, new source review applies to smaller sources in more seriously polluted ozone nonattainment areas. The new size cut-offs in serious, severe, and extreme areas are 50, 25, and 10 tons per year, respectively. Also, depending on the severity of pollution, the required level of offsets has been increased in ozone nonattainment areas. Finally, the amendments significantly increase the numbers of modifications to major sources subject to new source review. See 182(c), (d), (e).
EPA recently announced that it will consider reforming the existing new source review process. EPA plans to propose regulatory changes by January 1995 and to promulgate a final rule one year later. Preliminary indications suggest that the proposed rule may contain additional exceptions from new source review and may attempt to inject greater flexibility into the process.
Congress created a totally new scheme for regulating air toxics because of the difficulties EPA faced under the statutory criterion that hazardous air pollutant standards protect public health with an ample margin of safety. The amendments establish a list of 189 toxic pollutants to be regulated and command EPA to impose tight controls according to a new two-phase strategy. The first phase will be based on technology standards and will require sources to install the Maximum Achievable Control Technology (MACT). If EPA thereafter determines that the MACT standards do not adequately protect public health, it is then required to set a second round of residual risk standards.
Under the amendments, EPA must establish MACT standards that require the maximum degree of emissions reduction achievable, taking into account costs and other non-health related factors. The standards are to be established on a source category basis rather than on a pollutant-by-pollutant basis as provided for under old section 112. See 112(c), (d).
EPA promulgated a list of 174 source categories in December 1993. The statute requires that EPA promulgate MACT standards for the listed categories according to a schedule extending from November 1992 to November 2000. EPA has already promulgated several MACT standards but has obtained judicial extensions for the promulgation of other MACT standards. Sources must achieve compliance with standards within three years of promulgation, but a one-year extension is authorized. See 112(d), (e), (i).
Under the amendments, both major stationary sources and area sources are to be controlled. The new statute defines a major source as any industrial facility that emits 10 tons per year of any single air toxic or 25 tons per year of any combination of air toxics. Smaller sources are defined as area sources. See 112(a), (c)(3), (d).
In addition, upon EPA's approval of a state's Title V permit program, the requirements of section 112(g) automatically apply in that state. Pursuant to that section, the modification or reconstruction of an existing major source or the construction of a new source is subject to MACT requirements regardless of whether a MACT standard has been promulgated under section 112(d). If a MACT standard has not been promulgated, the state must make a case-by-case MACT determination for the source involved.
Although EPA is presently approving many state Title V permit programs, thereby triggering section 112(g) requirements, a final rule implementing section 112(g) is not expected until May 1995. Thus, sources undertaking actions which could be subject to section 112(g) face uncertainty until EPA's final rule is promulgated.
Although the emphasis of the air toxics program will shift from risk elimination to achievement of maximum improvement through the use of available technology, the concept of risk-based controls has not been abandoned. Indeed, the amendments require that after the MACT standards are promulgated for each category, EPA must determine whether more stringent standards are required to protect public health with an ample margin of safety, the criterion established under the 1970 Act. The amendments also require a study of that criterion and of EPA's risk assessment methodology. Residual risk standards are to be set, if required, within eight or nine years after MACT standards for a source category, i.e., as early as 2001.
The amendments create a totally new regulatory program to address the prevention of, and response to, accidental or catastrophic releases. As required under statute, EPA promulgated a list of extremely hazardous air pollutants. Plant owners must identify possible hazards and develop risk management plans pursuant to regulations that EPA plans to promulgate in 1995. Section 112(r) also establishes a Chemical Safety and Hazard Identification Board to investigate accidents and make recommendations regarding accident prevention.
Title V of the amendments establishes a new Clean Air Act permit program that will require almost all sources of significant air emissions to apply for and obtain permits. The permit program will likely have a major impact on how stationary sources plan their activities and has the potential to constrict substantially the operating flexibility of large existing facilities.
Under the current system, the SIPs have been the primary mechanism for controlling air pollution. Each source is obligated to know about and comply with requirements in the SIP. Thus, the regulatory provisions of the SIP have generic application and are legally binding.
The new permitting requirements provide that sources must obtain permits that include all applicable requirements, thereby partially eclipsing the importance of the SIPs. Permits will be required for any facility defined as a major source under any of the Clean Air Act's provisions, for all sources subject to new source performance standards, and for others specified by regulation. See 501-503.
EPA promulgated regulations establishing the minimum requirements for state permit programs in July 1992. Each state was required to develop an operating permit program and submit it to EPA within three years of the amendments' enactment (by November 15, 1993). EPA must approve or disapprove the state's program within one year of submission. The program is effective upon approval. Although many states already have permit programs, they generally will not meet the new federal requirements due, in part, to the imposition of a $25 per ton permit fee on covered sources. See 502.
Permit applications must be submitted within 12 months after state permit programs take effect (approximately the end of 1995). If a source submits a timely and complete application, it may continue to operate until the permit is issued, which may be a period of many years. Thus, the filing of any required applications is essential. The permit requirements establish a maximum term of five years, grant EPA veto power over the proposed permit terms, and authorize judicial review for private citizens. Compliance with the new permits will generally shield industrial facilities from enforcement actions involving Clean Air Act requirements expressly addressed in the terms and conditions of a permit.
EPA's permit program regulations have been challenged in the U.S. Court of Appeals for the District of Columbia Circuit. The lead petitioner in that litigation is the Clean Air Implementation Project, represented by ML&B partner Bill Lewis. Industry parties have contended that the permit program as currently written is far too complex and burdensome to be workable for states and permit applicants and that American industry's ability to compete in domestic and foreign markets may be adversely affected because of restrictions on operational flexibility. The parties in that litigation industry, states, environmental groups, and EPA are attempting to achieve consensus on modified provisions to ensure that the permit program fulfills its goals. EPA will likely issue amended permit regulations in early 1995.
Since the Clean Air Act had not been amended since 1977, its enforcement provisions did not compare to those in other major statutes. Under the 1990 Amendments, however, Congress eliminated that disparity by greatly expanding and strengthening EPA's enforcement authority.
The EPA Administrator can now impose administrative penalties of up to $25,000 per day for any violation. The maximum penalty is $200,000 in most such instances. The amendments also authorize EPA to establish a field citation program for minor violations; government inspectors may write tickets imposing penalties of up to $5,000 per day for each violation. Finally, the amendments clarify and expand EPA authority to issue administrative orders, and the maximum period the Agency may allow for compliance is one year. See 113(a), (d).
The amendments also convert the knowing violation of virtually every requirement into a felony crime. Sanctions to enforce violations include, for individuals, fines of up to $250,000 and imprisonment up to five years. Fines for corporations may be up to $500,000 for each violation. For both individuals and corporations, each day counts as a separate violation. Penalties for knowingly releasing air toxics which put another in imminent danger of serious bodily injury are even greater. In addition, the negligent release of air toxics is now subject to criminal penalty. See 113(c).
Because the amendments require expanded monitoring, self-reporting, and annual certifications of compliance, criminal actions may be brought for failure to give proper attention to burdensome procedural requirements. Knowing failure to maintain required documents or to file required notifications or reports is expressly made subject to these sanctions. See 113(c)(2).
The amendments include a number of other significant enforcement-related provisions. EPA's burden of proving continuous violations has been significantly eased under a provision presuming that violations, once proved, continue until full compliance is achieved. A defendant bears the burden of proving that the violation has ceased. EPA has also proposed extensive regulations implementing the requirement in section 114(a)(3) that it provide enhanced monitoring for major sources. Industry representatives have maintained that the proposed regulations would impose unduly burdensome requirements on sources and would, in many instances, redefine compliance with existing standards in a manner that improperly imposes more stringent requirements. EPA is expected to promulgate the final enhanced monitoring regulations in early 1995.
In addition, the Agency is given the authority to pay a bounty of up to $10,000 to anyone who provides information that leads to a civil penalty or criminal conviction. By authorizing private citizens to seek civil penalties in citizen suits, the amendments will likely lead to a vast increase in such actions as happened under the Clean Water Act during the 1980s. See 113(e), (f), 304(a).
Under the amended Clean Air Act, projects for plant modernization or growth and defense of enforcement actions will continue to require legal assistance. In addition, three specific areas under the amended Act the new permitting requirements, the MACT rulemakings under section 112, and acid rain restrictions require substantial strategic legal assistance to ensure that clients' interests are effectively represented.
Several ML&B attorneys have extensive Clean Air Act experience, including Bill Lewis, who served as Executive Officer of the California Air Resources Board from 1975 through 1978 and then as Director of the National Commission on Air Quality from 1978 to 1981. Since 1981, he has had extensive experience representing industrial clients on matters such as those listed above. John Quarles' experience on matters involving the Clean Air Act goes back to 1969 when he served on a White House Task Force that developed proposals leading to enactment of the 1970 Act. As the first EPA General Counsel and Assistant Administrator for Enforcement and then as the Agency's Deputy Administrator, he participated in many of the major decisions on implementation of the Clean Air Act program. For over a decade, he was the Chairman of the National Environmental Development Association's Clean Air Act Project, a leading participant in the 12-year national debate over proposed amendments to the statute. Michael McCord supervised or personally handled most of the significant Clean Air Act litigation over the past decade while at the Justice Department. Arline Seeger has substantial experience in providing client counseling in Clean Air Act matters. Kenneth Myers has also handled a variety of Clean Air Act matters, including the defense of a number of enforcement actions under sections 113 and 120. In the Los Angeles office, Randy Visser and Gordon Martin have had significant experience in resolving air quality issues with the South Coast Air Quality Management District.
One of the most significant changes made by the Clean Air Act Amendments of 1990 was the creation of the new Title V operating permits program. As explained in the main article on the Clean Air Act, Title V will likely have a great impact on the manner in which stationary sources comply with various emissions requirements. Title V requires states or local air pollution control districts to develop and submit Title V operating permits programs to EPA for approval. Because of the important role which state operating permits programs will play in implementing the Act, we now briefly discuss the status and key features of certain state programs.
California air pollution control districts (either individual county districts or regional management districts) have primary authority for controlling air pollution from all sources except motor vehicles. To comply with both the federal Title V program and state law, the individual districts have developed Title V permit programs which have been submitted to EPA for approval. Although each of these permit programs must comply with the same general federal mandate, differences in individual programs may exist. For companies with facilities in more than one air pollution control district, inconsistencies could be an implementation burden. In addition, compliance dates for submission of permit applications are based on the date that EPA approves the operating permit program. Because the approval dates will vary from district to district, companies with facilities in multiple districts will be subject to differing schedules for permit submission a potential source of confusion.
Among the facilities required to obtain a Title V permit are those with the potential to emit specified amounts of either hazardous air pollutants or criteria pollutants, i.e., pollutants that are governed by NAAQS. Because EPA has strictly interpreted the term potential to emit, California air districts estimate that there are up to 30,000 facilities with low actual emissions that have potentials to emit that would subject them to the Title V requirements. Subjecting these facilities to the Title V program would prove extremely burdensome to the facilities and to the permitting agencies. California recently negotiated a compromise with the EPA that will allow greater flexibility in dealing with these facilities. In many situations, the determination of which facilities must obtain operating permits will be based on actual emissions. Although details of this compromise are still being negotiated, it now appears that the number of these types of facilities that will require operating permits has been reduced to between 2,000 and 3,000.
Another area in which the operating permit program may cause confusion is in the South Coast Air Quality Management District ( SCAQMD ), which encompasses Los Angeles and Orange Counties, as well as the non-desert portions of Riverside and San Bernardino Counties. In 1993, the SCAQMD adopted a market-based economic incentives permitting program for most facilities emitting four or more tons of NOx or SOx per year. Facilities subject to the Regional Clean Air Incentives Market, or RECLAIM, have been issued facility permits with annual declining facility-wide emission caps for NOx and SOx. With some limitations, RECLAIM facilities may meet or expand their annual emission caps by purchasing emissions credits. Unlike other facilities, RECLAIM facilities already have been issued integrated facility-wide permits.
For RECLAIM facilities subject to Title V, the Title V requirements will be integrated into the RECLAIM facility permit. Because of the differences between RECLAIM and the non-RECLAIM programs, the SCAQMD Title V permit program proposes different potential to emit criteria for RECLAIM and non-RECLAIM facilities. Assuming EPA accepts the different criteria, RECLAIM and non-RECLAIM facilities may have to use different analyses and approaches to determine if they are subject to Title V and, if they are, to prepare their permit applications.
Florida's Division of Air Resources Management ( DARM ) adopted regulations establishing a state operating permits program for Title V sources in September 1993 and submitted them to EPA for approval in November 1993. DARM hopes to receive interim approval of its program from EPA before the end of 1994.
Under proposed amendments to Florida's program, certain sources will be allowed to use the Title V permit application to apply for an air construction permit that requests the imposition of specific conditions of operation to reduce the source's potential emissions below the Title V applicability threshold. The amendments are intended to clarify the circumstances in which permit limitations and conditions are considered federally enforceable and thus can reduce a source's potential to emit pollutants.
To allow for the delay in permitting decisions which will likely occur, Florida's rules provide that, so long as an application is timely and complete (or deemed complete by DARM's inaction for 60 days), the Title V source may continue to operate under the terms of any existing valid permit. Once application processing begins, DARM may request corrected or supplementary information, and the applicant has up to 90 days to respond before an application is deemed incomplete.
Florida's program generally tracks the evolving federal program on matters of operational flexibility. DARM has been working with particular industries to create checklists of insignificant activities or applicable requirements tailored to the types of facilities operated.
Finally, Florida's program contains a broad permit shield under which compliance with the permit would be deemed to be compliance with applicable requirements. The shield is effective if the applicable requirement was included in the permit application.
The New Jersey Department of Environmental Protection ( DEP or the Department ) proposed comprehensive operating permit rules for major stationary sources in September 1993. While portions of the proposed rules were adopted and became effective in October 1994, issues raised during the comment period led the Department to forego adoption of several significant provisions. DEP will revise and republish regulations for additional comment in early 1995. The upcoming proposal will include provisions addressing air quality simulation modeling and risk assessment, operating permit modifications and operational flexibility, standards for hazardous air pollutants, operating permit renewals, and fees.
The recently adopted operating permit provisions generally require owners and operators of major sources to obtain operating permits. Major sources are defined consistently with federal requirements. The adopted rules also establish various application deadlines from August 15, 1995 through May 15, 1998 for initial operating permits based on a facility's primary standard industrial classification (SIC) code. New or altered facilities that begin operation after an applicable deadline has passed must submit initial operating permit applications within one year after commencing operation.
The adopted regulations also establish requirements regarding permit applications, comments by affected states and the public, review by EPA, facility compliance plans, permit conditions, emissions testing and monitoring, and extensive recordkeeping and reporting obligations. The rules provide for a permit shield and intra-facility emissions trading. DEP intends to expand the emissions trading provisions in its upcoming proposed rule to include trading between facilities. While the Department will address several operating flexibility provisions in its upcoming proposal, the adopted rules allow permits to incorporate alternative operating scenarios.
The New York State Department of Environmental Conservation ( NYSDEC ) released a working draft of regulations to implement the Title V program in October 1994. The draft revises an earlier proposal that was submitted to EPA in October 1993 and was deemed incomplete. After public hearings scheduled for January 1995, NYSDEC plans to finalize the proposal and resubmit its program to EPA for approval in May 1995. Notice of EPA approval or disapproval is expected in November 1995.
The regulations would replace New York's current dual permitting system, which requires a permit to construct followed by a certificate to operate. A new type of permit called a facility permit would be required for all major sources. Major sources are defined according to emissions thresholds consistent with those in federal regulations. Facility permits could be issued for a defined area source or group or category of emission points at a facility. To avoid triggering Title V permit requirements, facilities could agree to federally enforceable emission caps restricting their emissions to less than threshold levels.
For sources that do not meet the Title V applicability thresholds, a single emission point permit would be issued, replacing both the permit to construct and the certificate to operate. No construction, modification, or operation would be allowed without an emission point permit, except in cases in which the emission point is being operated under an administrative order, judicial order, or decree. Emissions caps for non-Title V sources would be incorporated into emission point permits as permit conditions.
Subject to certain conditions, NYSDEC would also issue general permits to multiple, similar existing facilities in specified source categories. In addition, the rules would establish a registration system under which facilities subject to certain category-specific regulations could operate under a registration certificate without the need to obtain an emission point permit or a facility permit.
To allow for operating flexibility, the rule would provide for permits to include provisions for alternative operating scenarios and emissions trading within the facility to be approved by NYSDEC upon issuance of the permit. As in the federal guidelines, permit modification procedures of graduating severity would be established for administrative changes, minor facility changes, and significant facility changes. The draft rules provide specific examples of insignificant changes that qualify for minor permit modifications. Permits would include a permit shield provision under which compliance with the permit would be deemed to be compliance with all applicable requirements identified in the permit.
Pennsylvania's Title V program and related state permitting revisions were adopted by the Commonwealth on November 26, 1994. EPA will now either approve or disapprove the Title V program. Facilities subject to the Title V program must file permit applications within one year of final rulemaking (anticipated to be November 1995) or within 120 days of notice by the Pennsylvania Department of Environmental Resources ( DER ), whichever occurs earlier. In general, Pennsylvania's program tracks developing federal guidance, including EPA's definition of a Title V facility.
Unless determined to be a source of minor significance, all air contamination sources must have permits. Sources at non-Title V facilities must obtain state operating permits, and the rules effectively eliminate the grandfathering of sources constructed or modified prior to July 1972. Previously grandfathered sources (at least at non-Title V facilities) must be permitted by November 1, 1996.
Unlike earlier drafts of DER's program, the final rule provides that owners/operators of Title V facilities who file timely permit applications will be eligible for an application shield contingent upon payment of annual emission fees. A permit shield will apply to requirements specifically identified in the permit, provided the facility complies with permit conditions. Non-Title V facilities are not eligible for either the application shield or permit shield under their source-specific state operating permits.
Although Pennsylvania's permitting program contains the same categories of operational flexibility found under federal provisions, DER's rules appear to be somewhat more restrictive. In general, unless otherwise provided by permit (such as prescribed alternate operating scenarios), changes at a permitted Title V facility will require pre-approval by DER. By contrast, EPA's August 1994 proposed Title V revisions would allow a state to review certain administrative permit amendments after the associated changes had already been implemented. Also, DER has adopted the most conservative of EPA's options regarding threshold cutoffs for de minimis emission increases not requiring full permit review.
In addition to the Title V operating permit program, DER intends to submit its entire plan approval and state operating permit program to EPA for approval as part of the State Implementation Plan (SIP). Thus, all DER-issued air construction and operating permits (whether at Title V facilities or not) will be enforceable by EPA. This carries with it a greater likelihood of direct federal enforcement and EPA involvement in permitting matters previously within the sole jurisdiction of DER.
Copyright 1995 Morgan, Lewis & Bockius. All rights reserved.