Rule2026-19671
Clarifying the Scope of “Applicable Requirements” Under State Operating Permit Programs and the Federal Operating Permit Program
Primary source
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Published
September 25, 2026
Effective
October 26, 2026
Issuing agencies
Environmental Protection Agency
Abstract
The U.S. Environmental Protection Agency (EPA) is updating the title V operating permit program regulations to codify the Agency's existing interpretations and policies concerning when and whether "applicable requirements" established in other Clean Air Act (CAA) programs may be reviewed, modified, and/or implemented through the title V operating permit program. Specifically, this final rule clarifies the limited situations in which requirements under the New Source Review (NSR) preconstruction permitting program would be reviewed using the EPA's title V oversight authorities. Additionally, this final rule clarifies that requirements related to an owner or operator's general duty to prevent accidental releases of hazardous substances are not "applicable requirements" for title V purposes and are, therefore, not implemented through title V.
Full Text
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<title>Federal Register, Volume 91 Issue 185 (Friday, September 25, 2026)</title>
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[Federal Register Volume 91, Number 185 (Friday, September 25, 2026)]
[Rules and Regulations]
[Pages 61026-61072]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-19671]
[[Page 61025]]
Vol. 91
Friday,
No. 185
September 25, 2026
Part II
Environmental Protection Agency
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40 CFR Parts 70 and 71
Clarifying the Scope of ``Applicable Requirements'' Under State
Operating Permit Programs and the Federal Operating Permit Program;
Final Rule
Federal Register / Vol. 91, No. 185 / Friday, September 25, 2026 /
Rules and Regulations
[[Page 61026]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 70 and 71
[EPA-HQ-OAR-2023-0401; FRL-9118.1-02-OAR]
RIN 2060-AW77
Clarifying the Scope of ``Applicable Requirements'' Under State
Operating Permit Programs and the Federal Operating Permit Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The U.S. Environmental Protection Agency (EPA) is updating the
title V operating permit program regulations to codify the Agency's
existing interpretations and policies concerning when and whether
``applicable requirements'' established in other Clean Air Act (CAA)
programs may be reviewed, modified, and/or implemented through the
title V operating permit program. Specifically, this final rule
clarifies the limited situations in which requirements under the New
Source Review (NSR) preconstruction permitting program would be
reviewed using the EPA's title V oversight authorities. Additionally,
this final rule clarifies that requirements related to an owner or
operator's general duty to prevent accidental releases of hazardous
substances are not ``applicable requirements'' for title V purposes and
are, therefore, not implemented through title V.
DATES: This final rule is effective on October 26, 2026.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2023-0401. All documents in the docket are
listed on the <a href="http://www.regulations.gov">http://www.regulations.gov</a> website. Docket materials are
available electronically through <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: For information about this final rule,
contact Mr. Matthew Spangler, Permitting and Program Support Division,
Office of State Air Partnerships (C504-05), Environmental Protection
Agency, Research Triangle Park, NC; telephone number: (919) 541-0327;
email address: <a href="/cdn-cgi/l/email-protection#b8cbc8d9d6dfd4ddca96d5d9ccccd0ddcff8ddc8d996dfd7ce"><span class="__cf_email__" data-cfemail="4e3d3e2f2029222b3c60232f3a3a262b390e2b3e2f60292138">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Preamble acronyms and abbreviations.
Throughout this preamble the use of ``we,'' ``us,'' or ``our'' is
intended to refer to the EPA. We use multiple acronyms and terms in
this preamble. While this list may not be exhaustive, to ease the
reading of this preamble and for reference purposes, the EPA defines
the following terms and acronyms here:
BACT Best Available Control Technology
CAA Clean Air Act
CBI Confidential Business Information
CFR Code of Federal Regulations
EAB Environmental Appeals Board
E.O. Executive Order
FIP Federal Implementation Plan
FR Federal Register
GDC General Duty Clause
HAP Hazardous Air Pollutant
LAER Lowest Achievable Emissions Rate
MACT Maximum Achievable Control Technology
NAAQS National Ambient Air Quality Standards
NESHAP National Emission Standards for Hazardous Air Pollutants
NNSR Nonattainment New Source Review
NSPS New Source Performance Standards
NSR New Source Review
OSH Occupational Safety and Health
PAL Plantwide Applicability Limit
PSD Prevention of Significant Deterioration
RTC Response to Comments
SIP State Implementation Plan
SSM Startup, Shutdown, and Malfunction
U.S.C. United States Code
Organization of this document. The information in this preamble is
organized as follows:
I. General Information and Executive Summary
II. Background on Title V Operating Permits and CAA ``Applicable
Requirements''
A. The Title V Permitting Process, Public Participation, and the
EPA's Oversight Role
B. Purpose and Function of Title V Permits
C. Regulatory Definition of ``Applicable Requirements''
D. Requirements That Are Not ``Applicable Requirements'' for
Purposes of Title V Permitting
E. Self-Implementing Applicable Requirements (e.g., NSPS,
NESHAP)
F. Requirements Defined Through Title V Permitting
G. Applicable Requirements Related to the NAAQS and SIPs
III. Interface Between NSR and Title V Permitting
A. Background: Historical and Current EPA Approaches
B. Summary of the EPA's Approach and Final Action
C. Rationale for the EPA's Approach and Final Action
D. Application of the EPA's Approach to Different Fact Patterns
E. Impacts of the EPA's Approach and Final Action
IV. The General Duty Clause Concerning the Prevention of Accidental
Releases of Hazardous Substances
A. Background and Summary of Final Action
B. Rationale for Final Action
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 14192: Unleashing Prosperity Through
Deregulation
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
J. National Technology Transfer and Advancement Act
K. Congressional Review Act (CRA)
VI. Statutory Authority
VII. Judicial Review
I. General Information and Executive Summary
Title V of the Clean Air Act requires the establishment of a
permitting program for covered stationary sources that incorporates
various stationary source limitations set out elsewhere in the statute.
Covered sources generally may not operate without a title V permit, and
title V permits must ``include enforceable emissions limitations and
standards . . . and such other conditions as are necessary to assure
compliance with applicable requirements of this chapter, including the
requirements of the applicable implementation plan.'' \1\ The EPA
maintains regulations that address the relationship between title V and
other CAA programs and define the term ``applicable requirements,''
which the statute itself does not further define.\2\
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\1\ 42 U.S.C. 7661c(a). ``[A]pplicable implementation plan''
refers to the relevant EPA-approved State implementation plan (SIP)
or Federal implementation plan (FIP), which may include more
granular requirements applicable to the source based on its
location.
\2\ 40 CFR 70.2 and 71.2.
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On January 9, 2024, the EPA published a proposed rule addressing
the relationship between the CAA's title V operating permit program and
certain types of ``applicable requirements'' established under
different sections of the CAA (the ``January 2024 Proposed Rule'').\3\
The January 2024 Proposed Rule was designed to update the EPA's
regulations to better express the EPA's existing approaches to topics
that have been the source of public interest and, at times,
misunderstanding. The preamble discussion and regulatory changes
accompanying this final rule are similarly intended to provide clarity
[[Page 61027]]
about the EPA's approaches. The EPA received public comment on many of
the topics discussed in the January 2024 Proposed Rule. The EPA's
responses to the most significant comments are included within this
preamble, which is organized similarly to the January 2024 Proposed
Rule preamble. A complete response to comments (RTC) document is
included in the docket for this final rule.
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\3\ Clarifying the Scope of ``Applicable Requirements'' Under
State Operating Permit Programs and the Federal Operating Permit
Program, 89 FR 1190 (January 9, 2024).
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This preamble addresses three substantive topics. Section II of
this preamble includes background on the EPA's longstanding position
regarding a number of general topics involving ``applicable
requirements.'' This discussion is similar to the background discussion
in the January 2024 Proposed Rule and has been updated in response to
public comments. In summary, the title V operating permit program is a
vehicle for compiling air quality control requirements from other CAA
programs and provides conditions necessary to assure compliance with
such requirements, but it is not a vehicle for creating or changing
applicable requirements from those other programs. The EPA has a
regulatory definition of the term ``applicable requirement'' that
guides the interaction between title V and other CAA programs.\4\ Some
programs establish ``self-implementing'' requirements that can be
incorporated into title V permits without further review. Other
programs contain only general requirements that can, in certain
circumstances, be further defined through title V permits. This section
concludes by summarizing the EPA's positions on how these concepts
affect requirements related to the National Ambient Air Quality
Standards (NAAQS) and State Implementation Plans (SIPs).
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\4\ 40 CFR 70.2 and 71.2.
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Section III of this preamble addresses the intersection between
title V operating permits and NSR preconstruction permits issued under
title I of the CAA; in short, the EPA's title V oversight authorities
generally may not be used to review NSR requirements. Section III.A of
this preamble discusses the EPA's historical and current approaches to
the intersection between permits issued under title I and title V.
Although the existing regulations may be properly read to support the
EPA's existing approach, the regulatory amendments finalized in this
action make this approach more explicit. Updating the EPA's regulations
allows the Agency to apply our approach nationwide and resolves issues
stemming from conflicting court decisions from the U.S. Court of
Appeals for the Tenth Circuit and the Fifth Circuit.
Section III.B of this preamble summarizes the regulatory amendments
finalized in this action to reflect the approach the EPA has taken
since 2017. In summary, provided a source obtains an NSR permit under
EPA-approved (or EPA-promulgated) title I regulations, with public
notice and the opportunity for comment and judicial review, that NSR
permit establishes the NSR-related ``applicable requirements'' of the
SIP (or Federal Implementation Plan (FIP)) for purposes of
incorporation into a title V permit. As with ``applicable
requirements'' established under other CAA authorities, the EPA will
not reevaluate those NSR permitting decisions through the title V
process.
Section III.C of this preamble details the EPA's legal and policy
rationale for the Agency's approach, which reflects the best reading of
the relevant statutory provisions. The EPA's interpretation is
supported by the text, structure, and purpose of title V and the
structure of the CAA as a whole. It also best effectuates the intent of
Congress. This rule ensures that applicable requirements established in
different CAA programs are treated consistently in title V permitting,
accounts for the limitations associated with title V oversight tools,
emphasizes title I avenues of review, and respects the finality of, and
fosters certainty in, title I permitting decisions.
Section III.D of this preamble details how the updated regulatory
provisions in this final rule apply in different circumstances. In
general, the EPA will not use the title V process to address NSR
issues, regardless of: (i) the stage of the title V permitting or
oversight process at issue; (ii) the NSR permit's origin (i.e., from a
SIP or a FIP); (iii) the type of substantive NSR requirement at issue
(e.g., NSR permit terms or major NSR applicability); and (iv) the
procedures by which the NSR permit is incorporated into the title V
permit (e.g., sequentially or concurrently issued permits).\5\ However,
there are limited situations in which the title V permitting process is
the appropriate venue for ensuring that the title V permit includes and
assures compliance with all NSR-related requirements of the SIP,
including relatively rare situations in which the applicable SIP
requirements governing a construction project have not been
conclusively established outside of the title V permitting process, or
limited examples in which NSR issues and title V issues involve
substantive overlap.
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\5\ This final rule does not include any regulatory changes
associated with one particular mechanism used to incorporate NSR
permits into title V permits, known as ``enhanced NSR.'' That aspect
of the January 2024 Proposed Rule--which is not closely related to
the core issues associated with this rulemaking--is severed from and
not addressed by this final rule.
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Section III.E of this preamble further discusses the impacts of
this final rule. Entities potentially affected by this final rule
include State, local, and Tribal air pollution control agencies that
administer title V operating permit programs (``permitting
authorities''), owners and operators of emissions sources in all
industry groups who hold or apply for title V operating permits, and
any person or group that participates in the title V permitting
process. Overall, this rule provides additional clarity about the
appropriate role of title V oversight authorities and the appropriate
mechanisms to address concerns with NSR permits.
Section IV of this preamble addresses a distinct and severable
topic related to the ``General Duty Clause'' of CAA section 112(r)(1),
which concerns the prevention of accidental releases of hazardous
substances. This rule codifies the EPA's well-established position that
this General Duty Clause is not an ``applicable requirement'' and is
not implemented through title V.
II. Background on Title V Operating Permits and CAA ``Applicable
Requirements''
This section of the preamble contains background information on the
title V program and explains how different types of ``applicable
requirements'' of the CAA are treated in title V permits. This
discussion is intended for informational purposes only to clarify
multiple related topics that may have been a source of confusion to the
public, regulated entities, and permitting authorities over the years.
As explained in the January 2024 Proposed Rule, the EPA does not intend
to and is not changing the Agency's longstanding interpretations or
policies discussed in this section. The interpretations recounted in
this section are consistent with, and accurately reflected in, the
EPA's existing regulations in 40 CFR parts 70 and 71.
A. The Title V Permitting Process, Public Participation, and the EPA's
Oversight Role
Congress amended the CAA in 1990 to add, among other provisions,
title V.\6\ Title V established an operating permit
[[Page 61028]]
program for major sources of air pollution and certain other sources.
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\6\ CAA Amendments of 1990, Public Law 101-549, sections 501-
507, 104 Stat. 2399, 2635-48 (1990) (codified at 42 U.S.C. 7661-
7661f).
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The title V program, like other provisions of the CAA, involves
cooperative federalism, meaning that responsibility for the program is
divided between States and the EPA. Under title V, States were required
to develop and submit to the EPA for approval title V permitting
programs consistent with requirements promulgated by the Agency in 40
CFR part 70.\7\ Most States, certain local agencies, and one Tribe now
have approved part 70 programs.\8\ Under these EPA-approved State
programs, permitting authorities issue the vast majority of title V
permits (this preamble refers to such permits as ``State-issued''
permits). The EPA directly issues title V permits only in limited
circumstances.\9\
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\7\ 42 U.S.C. 7661a(b), (d). For information about EPA oversight
of the content and implementation of EPA-approved State part 70
programs, see 42 U.S.C. 7661a(i) and 40 CFR 70.10.
\8\ See 40 CFR part 70, appendix A (Approval Status of State and
Local Operating Permits Programs).
\9\ Under 40 CFR part 71, the EPA (or an agency delegated to
issue permits on the EPA's behalf) issues title V permits to sources
in most areas of Indian country, on the Outer Continental Shelf, in
jurisdictions where the EPA has determined that a State has not
adequately implemented its part 70 program, and in situations in
which a State has not satisfied an EPA objection to, or reopening
of, a State-issued permit. See 40 CFR 71.4.
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Most title V permit actions (including initial permits, renewal
permits, and significant permit modifications) involve public notice,
an opportunity for comment, and a hearing on draft permits and
revisions.\10\ The CAA also provides for judicial review of final title
V permit actions through State courts.\11\ These provisions are similar
to those provided in other CAA programs.
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\10\ 42 U.S.C. 7661a(b)(6); 40 CFR 70.4(d)(3)(iv), 70.7(h).
\11\ 42 U.S.C. 7661a(b)(6); 40 CFR 70.4(b)(3)(x) through (xii).
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Additionally, Congress provided the EPA and the public with unique
oversight tools for State-issued title V permits. The CAA requires
permitting authorities to submit a proposed title V permit to the EPA
Administrator for review before issuing a final permit.\12\ The
Administrator shall object to issuance of a proposed permit within 45
days if the Administrator determines that the permit does not satisfy
the applicable requirements of the CAA or the requirements of 40 CFR
part 70.\13\ If the Administrator does not object to a permit during
the 45-day review period, any person may petition the Administrator
within 60 days after the expiration of the 45-day review period to take
such action (``title V petition'').\14\ Many of the issues concerning
``applicable requirements'' that are addressed in this final rule have
been raised and addressed in title V petitions and the EPA's orders
responding to such petitions.\15\ Generally, the Administrator's denial
of a title V petition is a locally or regionally applicable action
subject to judicial review in the U.S. Court of Appeals for the
appropriate circuit under CAA section 307(b).\16\
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\12\ 42 U.S.C. 7661d(a)(1); 40 CFR 70.8(a).
\13\ 42 U.S.C. 7661d(b)(1); 40 CFR 70.8(c).
\14\ 42 U.S.C. 7661d(b)(2), 40 CFR 70.8(d), 70.12, 70.13, 70.14.
\15\ For more information about title V petitions, see the
preambles of the proposed and final rule ``Revisions to the Petition
Provisions of the Title V Permitting Program,'' 81 FR 57822 (August
24, 2016) and 85 FR 6431 (February 5, 2020). Copies of petitions and
the EPA's petition orders are available on the EPA's public title V
petition database, <a href="https://www.epa.gov/title-v-operating-permits/title-v-petition-database">https://www.epa.gov/title-v-operating-permits/title-v-petition-database</a>.
\16\ 42 U.S.C. 7661d(b)(2), 7607(b)(1).
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The CAA also provides the EPA with the authority, at the Agency's
discretion, to determine that cause exists to ``terminate, modify, or
revoke and reissue'' a State-issued title V permit.\17\ This process is
often called ``reopening for cause'' and is described in 40 CFR 70.7(f)
and (g). Among other criteria, a permit may be reopened for cause when
necessary to assure compliance with applicable requirements.\18\
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\17\ 42 U.S.C. 7661d(e).
\18\ 40 CFR 70.7(f)(1)(iv).
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Although this rule is primarily focused on the EPA's oversight of
State-issued title V permits, the concepts discussed in this preamble
related to ``applicable requirements'' are relevant to nearly all
aspects of the title V permitting process in some regard. For example,
these concepts guide the information that permittees must include in
title V permit applications, the required content of title V permits
drafted and issued by permitting authorities (including the EPA), the
scope of issues properly subject to the public's input during the title
V permitting process, and the scope of issues considered by the EPA in
exercising the Agency's oversight authorities (including the EPA's
review of title V permits issued by States and consideration of title V
petitions on those permits).
B. Purpose and Function of Title V Permits
The title V permitting program was created to assist with
compliance and enforcement of air pollution controls established under
other CAA programs. Before this program existed, the CAA pollution
control requirements that might apply to a source could be found in
many different provisions of the CAA along with various Federal and
State regulations and permits. One court opinion summarized the
relationship between title V and other CAA programs as follows:
Under the regulatory regime established by the [CAA], emission
limits for pollutants and monitoring requirements that measure
compliance applicable to any given stationary source of air
pollution are scattered throughout rules promulgated by states or
EPA, such as [SIPs], new source performance standards [NSPS], and
national emission standards for hazardous air pollutants [NESHAP].
Before 1990, regulators and industry were left to wander through
this regulatory maze in search of the emission limits and monitoring
requirements that might apply to a particular source. Congress
addressed this confusion in the 1990 Amendments by adding title V of
the Act, which created a national permit program that requires many
stationary sources of air pollution to obtain permits that include
relevant emission limits and monitoring requirements.\19\
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\19\ Sierra Club v. EPA, 536 F.3d 673, 674 (D.C. Cir. 2008)
(citations omitted).
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Thus, one key function of title V is to consolidate the applicable
requirements established under other CAA programs. This consolidation
function is embodied in CAA section 504(a), which states, in part:
``Each permit issued under this subchapter shall include enforceable
emission limitations and standards . . . and such other conditions as
are necessary to assure compliance with applicable requirements of this
chapter, including the requirements of the applicable implementation
plan.'' \20\ The EPA's regulations implementing title V contain
language similar to the statute.\21\ The EPA's regulations also
require: ``The permit shall specify and reference the origin of and
authority for each term or condition, and identify any difference in
form as compared to the applicable requirement upon which the term or
condition is based.'' \22\
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\20\ 42 U.S.C. 7661c(a).
\21\ See 40 CFR 70.6(a)(1), 71.6(a)(1). The EPA's regulations
also define the specific ``applicable requirements'' with which each
title V permit must assure compliance. 40 CFR 70.2 and 71.2. The
definition and concept of ``applicable requirements'' are discussed
in more detail later in this preamble.
\22\ 40 CFR 70.6(a)(1)(i), 71.6(a)(1)(i).
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In addition to consolidating applicable requirements, CAA section
504 provides the EPA with the authority to use title V permits to
establish additional requirements necessary to assure compliance with
those applicable requirements. For example, title V permits may be used
to create or supplement monitoring requirements, when necessary, to
assure compliance with underlying applicable
[[Page 61029]]
requirements that do not themselves contain sufficient monitoring
provisions.\23\ Various compliance assurance requirements are included
within title V and the EPA's implementing regulations; not all are
restricted to monitoring.\24\
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\23\ See 42 U.S.C. 7661c(c); 40 CFR 70.6(c)(1); Sierra Club v.
EPA, 536 F.3d 673, 674-45, 680 (D.C. Cir. 2008) (``Title V did more
than require the compilation in a single document of existing
applicable emission limits and monitoring requirements. It also
mandated that `[e]ach permit issued under [Title V] shall set forth
. . . monitoring . . . requirements to assure compliance with the
permit terms and conditions.' . . . [T]he Act requires: a permitting
authority may supplement an inadequate monitoring requirement so
that the requirement will `assure compliance with the permit terms
and conditions.' '' (citations omitted)); see also, e.g., In the
Matter of CITGO Refining and Chemicals Co., L.P., West Plant, Order
on Petition No. VI-2007-01 at 6-8 (May 28, 2009).
\24\ 42 U.S.C. 7661c(a), (b), and (c); 40 CFR 70.6(a)(1) and(3),
(c), 71.6(a)(1) and(3), and (c).
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Beyond title V's consolidation and compliance assurance functions,
title V generally does not impose new pollution control requirements on
sources or provide a vehicle to modify such requirements established
under other CAA programs. Thus, the EPA's regulations expressly
provide: ``All sources subject to these regulations shall have a permit
to operate that assures compliance by the source with all applicable
requirements. While title V does not impose substantive new
requirements, it does require that . . . certain procedural measures be
adopted especially with respect to compliance.'' \25\ For additional
information about the purpose and function of title V, see section
III.C.2 of this preamble.
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\25\ 40 CFR 70.1(b) (emphasis added).
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In summary, the title V operating permit program is a vehicle for
compiling air quality control requirements from other CAA programs and
for providing requirements necessary to assure compliance with such
requirements, but not for creating or changing applicable requirements.
Put simply, title V is a catch-all, not a cure-all. The discussion
throughout the remainder of this preamble builds upon these
longstanding general principles, which the EPA is not changing with
this rulemaking.
C. Regulatory Definition of ``Applicable Requirements''
As previously explained, CAA section 504(a) requires that title V
permits ``include enforceable emissions limitations and standards . . .
and such other conditions as are necessary to assure compliance with
applicable requirements of this chapter, including the requirements of
the applicable implementation plan.'' \26\ However, the term
``applicable requirements'' is not defined in the CAA and the statute
does not otherwise specify how to determine the ``applicable
requirements of this chapter'' for a particular source. When the EPA
developed regulations to implement the title V program, the Agency
defined the term ``applicable requirement'' as it relates to title V
permitting. This subsection of the preamble addresses general topics
associated with this regulatory definition. The subsections that follow
elaborate on these general concepts with examples of how these concepts
impact different types of requirements.
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\26\ 42 U.S.C. 7661c(a). Similar requirements appear in other
parts of title V. ``Schedule of compliance. The term `schedule of
compliance' means a schedule of remedial measures, including an
enforceable sequence of actions or operations, leading to compliance
with an applicable implementation plan, emission standard, emission
limitation, or emission prohibition.'' 42 U.S.C. 7661(3). ``Nothing
in this subsection shall be construed to alter the applicable
requirements of this chapter that a permit be obtained before
construction or modification.'' 42 U.S.C. 7661a(a). Permitting
authorities ``have adequate authority to . . . issue permits and
assure compliance . . . with each applicable standard, regulation,
or requirement under this chapter.'' 42 U.S.C. 7661a(b)(5). The
regulations to implement the program shall include a ``requirement
that the applicant submit with the application a compliance plan
describing how the source will comply with all applicable
requirements under this chapter.'' 42 U.S.C. 7661b(b). However, like
CAA section 504, these sections do not specify the scope of the term
``applicable requirements'' or how the permitting authority or the
EPA is to determine what the applicable requirements are for a
source as part of its title V permit.
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Initially, it is important to recognize that ``applicable
requirement'' is a legal term of art with a precise meaning that is
unique to title V. The meaning of ``applicable requirement'' is closely
aligned with the primary function of title V permits: to consolidate
and assure compliance with the substantive requirements established
under other CAA programs. Thus, the EPA's definition of ``applicable
requirement'' focuses on those substantive requirements of other CAA
programs that must be incorporated into a source's title V permit and
with which the title V permit must assure compliance. This means that
not all CAA requirements are considered ``applicable requirements'' for
title V purposes. However, the fact that some CAA requirements are not
considered ``applicable requirements'' for title V purposes does not
diminish the independent enforceability or importance of those
requirements. It simply means that those requirements are not primarily
implemented or enforced through title V permits.
The EPA's regulations define ``applicable requirement'' to mean
``all of the following as they apply to emissions units in a part 70
source,'' \27\ followed by a list of 13 types of CAA-based standards or
conditions.\28\
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\27\ This definition also indicates that requirements that have
been promulgated or approved at the time of permit issuance, but
with which the source is not yet required to comply, are applicable
requirements that must be included in a title V permit. See 40 CFR
70.2 and 71.2. In such cases, the title V permit should indicate the
relevant future compliance date. The EPA is not aware of any issues
or confusion concerning this element of the definition, which is not
discussed further in this preamble.
\28\ 40 CFR 70.2; see 40 CFR 71.2 (similar definition). The list
includes, in summary, requirements from: (1) SIPs and FIPs under CAA
title I; (2) preconstruction permits under CAA title I; (3) CAA
section 111 (NSPS and existing source rules); (4) CAA section 112
(NESHAP); (5) title IV (acid rain); (6) CAA sections 504(b) or
114(a)(3) (certain types of enhanced monitoring); (7) CAA section
126(a)(1) and (c) (interstate pollution); (8) CAA section 129 (solid
waste incineration); (9) CAA section 183(e) (consumer and commercial
products); (10) CAA section 193(f) (tank vessels); (11) CAA section
328 (outer continental shelf permits); (12) CAA title VI
(stratospheric ozone); and (13) any NAAQS, but only as it would
apply to temporary sources under CAA section 504(e).
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Perhaps the most straightforward aspect of this definition is that,
to qualify as an ``applicable requirement'' for title V purposes, the
requirement must be based on (i.e., derived from) the CAA and, more
specifically, one of the CAA sections identified in this definition.
Requirements that are not based on (i.e., derived from) the CAA are not
``applicable requirements'' of the CAA with which a title V permit must
assure compliance. Further, not all CAA requirements qualify as
``applicable requirements'' for title V purposes. Some sections of the
CAA were intentionally omitted from the list of 13 types of
``applicable requirements'' because these sections either do not apply
to stationary sources that must obtain title V permits or are not
implemented through title V for other reasons. For more information on
requirements that are not ``applicable requirements,'' see section
II.D.2 of this preamble.
A similarly important definitional element is that ``applicable
requirements'' only include the listed types of CAA requirements ``as
they apply to emission units in a part 70 source.'' \29\ Requirements
of the CAA that do not directly apply to a source's emission units are
not ``applicable requirements'' for title V purposes, as discussed
further in section II.D.3 of this preamble.
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\29\ 40 CFR 70.2; see 40 CFR 71.2 (similar definition).
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Additionally, the requirements of title V itself (and the EPA's 40
CFR parts 70 and 71 implementing regulations) are
[[Page 61030]]
not technically considered ``applicable requirements'' but are
nonetheless centrally important to title V permitting. For more
information, see section II.D.4 of this preamble.
Not all ``applicable requirements'' are treated the same in title V
permits. Some applicable requirements can be described as ``self-
implementing.'' Once established, those requirements should entail
little to no review through the title V permitting process. Other
applicable requirements may require further evaluation to define the
precise requirements that apply to individual emission units. In
certain circumstances, the latter type of applicable requirements may
be further defined using the title V permitting process. These topics
are discussed in more detail in sections II.E. and II.F of this
preamble.
D. Requirements That Are Not ``Applicable Requirements'' for Purposes
of Title V Permitting
Sources subject to title V may be subject to a variety of other
requirements both within and beyond the CAA. Not all of these
requirements are ``applicable requirements'' that must be included in a
title V permit. Requirements that are not applicable requirements fall
into several categories, discussed in the following subsections.
1. Requirements Not Derived From the CAA
Many sources subject to title V are also subject to Federal laws
beyond the CAA, including environmental laws administered by the EPA or
other Federal agencies (e.g., Clean Water Act (CWA); Safe Drinking
Water Act; Resource Conservation and Recovery Act (RCRA); Comprehensive
Environmental Response, Compensation, and Liability Act; National
Environmental Policy Act, Emergency Planning and Community Right-to-
Know Act, Endangered Species Act, and other statutes). These other
Federal laws, including the statutes and any implementing regulations,
are not ``applicable requirements'' for title V purposes. Such
requirements should not be included in title V permits, and title V
permits should not assure compliance with these requirements. Further,
whether a permittee or permitting authority has satisfied those
requirements is beyond the scope of issues that the EPA can address
through the Agency's title V-based oversight authorities, including our
objection authority and public petition opportunity.\30\ This is self-
evident from the plain language of the CAA and the EPA's regulations,
which limit the Agency's objection authority to permits that ``are not
in compliance with the applicable requirements of [the CAA].'' \31\
Nonetheless, the EPA sometimes receives title V petitions requesting
the Agency's objection to the issuance of operating permits on the
basis of alleged violations of laws other than the CAA. The EPA has
denied all of those petition claims.\32\
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\30\ The EPA's regulations provide that title V permit issuance
may be coordinated with the issuance of permits under the CWA and
RCRA, but that does not mean those other requirements are subject to
review through title V. See 40 CFR 70.1(e) and 71.1(d).
\31\ 42 U.S.C. 7661d(b)(1), (2); see 40 CFR 70.8(c)(1) and
70.12(a)(2).
\32\ See, e.g., In The Matter of Gateway Generating Station,
Order on Petition No. IX-2013-1 at 12-14 (October 15, 2014); In the
Matter of Monroe Electric Generating Plant, Order on Petition No. 6-
99-2 at 27 (June 11, 1999).
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Other Federal authorities are sometimes invoked in the context of
title V permitting (and, in particular, title V petitions), including
Presidential Executive Orders (E.O.s). Because E.O.s are not legally
binding for State permitting authorities and are generally not based on
the CAA, they do not establish ``applicable requirements'' that States
must implement through title V permitting. Accordingly, the EPA has
denied title V petition claims alleging that State permitting
authorities failed to satisfy E.O.s.\33\
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\33\ See, e.g., In the Matter of AK Steel Dearborn Works, Order
on Petition No. V-2016-16 at 17-19 (January 15, 2021) (AK Steel
Order); In the Matter of Orange Recycling and Ethanol Production
Facility, Pencor-Masada Oxynol, LLC, Order on Petition No. II-2000-
07 at 32-33 (May 2, 2001) (Pencor-Masada I Order). Note that Federal
executive orders may be more directly relevant to EPA-issued title V
permits under 40 CFR part 71 (as well as other types of EPA-issued
permits).
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Many State permitting authorities have air quality laws that are
not derived from the CAA and/or are not included as part of an EPA-
approved State program.\34\ These ``State-only'' requirements are not
enforceable by the EPA and are not applicable requirements for title V
purposes. Thus, these requirements do not need to be included in title
V permits, title V permits do not need to assure compliance with these
requirements, and these requirements are beyond the scope of the EPA's
title V oversight tools. For these reasons, the EPA has denied numerous
title V petition claims alleging that title V permits fail to satisfy
State-only requirements.\35\
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\34\ This includes requirements that may be designed to
implement a CAA requirement but which the EPA has not yet approved
(including SIPs, State plans under CAA section 111(d), and State
programs under CAA section 112(l), and Part 70 programs).
\35\ See, e.g., In the Matter of Salt River Project Agricultural
Improvement & Power District, Agua Fria Generating Station, Order on
Petition No. IX-2022-4 at 14 (July 28, 2022) (SRP Agua Fria I
Order); In the Matter of Shintech, Inc., Order on Petition at 14
(September 10, 1997) (Shintech I Order).
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State permitting authorities may, at their discretion, include
State-only requirements within title V permits, but they are required
to designate such permit terms as ``State-only'' or ``not federally
enforceable.'' \36\ Again, these requirements are not ``applicable
requirements'' for purposes of title V permitting. Thus, from the EPA's
perspective, properly labeled State-only permit terms are not
considered part of the title V permit; they may be present in the title
V permit, but they are not legally federally enforceable. As such,
these permit terms are not subject to the EPA's objection authority or
the title V petition process.\37\ The EPA has denied many title V
petition claims challenging the content of State-only permit terms.\38\
Note that the CAA requires States to provide the public with an
opportunity to raise concerns with any conditions of a title V permit,
including State-only requirements, through judicial review in State
court systems.\39\ This opportunity exists in parallel to the unique
oversight authorities (e.g., the EPA's objection authority and public
petition opportunity) that extend only to federally enforceable
requirements of title V permits.
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\36\ 40 CFR 70.6(b)(2).
\37\ Id.
\38\ See, e.g., In the Matter of Harquahala Generating Station
Project, Order on Petition at 5 (July 2, 2003) (Harquahala Order).
\39\ 42 U.S.C. 7661a(b)(6); 40 CFR 70.4(b)(3)(x) through (xii).
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2. CAA Requirements That Are Not Specifically Identified in 40 CFR 70.2
The CAA is a large and complex statute composed of many different
programs. Not all of these programs are implemented in the same manner
through title V or establish ``applicable requirements'' for title V
purposes.
One notable example is title II of the CAA, which concerns emission
standards for internal combustion engines in mobile sources and nonroad
engines. Even if emission units subject to title II are located at a
stationary source, they are not regulated as a stationary source
because they are excluded from the definition of ``stationary source.''
\40\ Thus, title II
[[Page 61031]]
requirements are not included within the EPA's regulatory definition of
``applicable requirement.''
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\40\ See 42 U.S.C. 7602(z). Questions sometimes arise regarding
whether an internal combustion engine located at a stationary source
should be considered a nonroad engine (subject to title II) or a
part of the stationary source. See, e.g., 42 U.S.C. 7550(10);
7602(z); 40 CFR 1068.30. This topic is beyond the scope of this
rulemaking.
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Other substantive CAA programs relevant to stationary sources are
similarly not identified in the EPA's regulatory definition of
``applicable requirement'' for title V purposes because Congress did
not intend for them to be implemented through the title V program. For
further information about one example, the ``General Duty Clause''
concerning the prevention of accidental releases of hazardous
substances under CAA section 112(r)(1), see section IV of this
preamble.
Some CAA provisions are more general and do not impose substantive
requirements that are incorporated into title V permits. For example,
title III of the CAA includes general provisions related to a number of
cross-cutting topics.\41\ Although some of these requirements may
directly or indirectly impact title V permitting, most provisions
within title III are not ``applicable requirements'' for title V
purposes.\42\
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\41\ See 42 U.S.C. 7601-28.
\42\ One notable exception is the Outer Continental Shelf
permitting requirements under CAA section 328, which are considered
applicable requirements for title V purposes. 42 U.S.C. 7627; 40 CFR
70.2 and 71.2.
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3. Requirements That Do Not Apply to Emission Units
Not all requirements from CAA programs identified in the EPA's
regulatory definition of ``applicable requirement'' are considered
applicable requirements for title V purposes. This is because the
definition only includes such requirements ``as they apply to emission
units in a part 70 source.'' \43\ Applicable requirements generally
include the substantive requirements from other CAA provisions that
dictate the ongoing operations of emission units at the source. As the
name of this program suggests, title V operating permits are
fundamentally designed to specify the conditions under which a source's
emission units must operate. Further, a key purpose of the title V
program is to assure that the source complies with the requirements to
which it is subject.\44\
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\43\ 40 CFR 70.2 and 71.2.
\44\ 42 U.S.C. 7661a(a).
---------------------------------------------------------------------------
Therefore, requirements of the CAA that do not directly apply to
individual emission units at a part 70 source are not ``applicable
requirements'' for title V purposes. Many of the CAA provisions that do
not apply to emission units at a title V source can be described as
programmatic or procedural. For example, CAA requirements that specify
actions that the EPA must take to establish or oversee different CAA
programs (such as promulgating rules, taking action on State rules, and
other programmatic oversight activities) are not applicable
requirements that need to be reflected in a source's title V
permit.\45\ Similarly, the CAA requires State air agencies to undertake
various activities related to the establishment and implementation of
different CAA programs, including attainment planning requirements
(e.g., in developing SIPs).\46\ State permitting authorities are also
subject to various requirements related to the issuance of non-title V
permits (e.g., NSR permits).\47\ In general, Congress did not intend
for the title V program to serve as a vehicle to catch or correct
programmatic or procedural problems associated with the establishment
of applicable requirements in other CAA programs.\48\ Instead, the
title V program was designed to ensure that regulated sources comply
with all the substantive emission control requirements to which they
are subject. Thus, to the extent these requirements only directly
regulate EPA or State actions, and do not result in requirements
directly applicable to emission units at a title V source, they are not
applicable requirements for title V purposes.
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\45\ See, e.g., In the Matter of Hu Honua Bioenergy Facility,
Order on Petition No. IX-2011-1 at 6-7 (February 7, 2014) (Hu Honua
I Order).
\46\ See, e.g., In the Matter of Exxon Chemical Americas, Baton
Rouge Polyolefins Plant, Order on Petition No. 6-00-1 at 10-11
(April 12, 2000).
\47\ See, e.g., In the Matter of Century Aluminum of South
Carolina, Inc., Order on Petition No. IV-2023-09 at 19-20 (November
2, 2023) (Century Aluminum Order). However, note that there are
limited circumstances under which procedural issues associated with
other CAA programs (namely, the issuance of NSR permits) may be
implicated in title V. See section III.D.5.b of this preamble for
further discussion.
\48\ By contrast, issues related to the procedures used to issue
a title V permit are of central relevance to the title V program,
and the unique title V oversight tools available to the EPA and the
public generally may be used to address those deficiencies. See
section II.D.4 of this preamble for more information on such 40 CFR
part 70 requirements.
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The CAA contains many cross-cutting general provisions (e.g., in
title III) that are not considered applicable requirements because they
do not directly apply to emission units at part 70 sources.\49\ The
same is true for various cross-cutting regulatory provisions. To the
extent these provisions are relevant to the implementation or
enforcement of the title V program, they are independently enforceable
and do not need to be specified in a title V permit. One example that
often arises in the context of title V petitions is that of ``credible
evidence.'' The EPA, States, and citizens can use any credible evidence
to prove compliance and non-compliance with the CAA, including
compliance and non-compliance with title V permits.\50\ The EPA has
repeatedly determined that title V permits need not include language
affirmatively restating the existence of this principle.\51\
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\49\ These general provisions are not considered applicable
requirements for two reasons: (i) they are not specified within the
regulatory definition's list of 13 types of CAA requirements (as
discussed in the preceding subsection of the preamble), and (ii)
they do not apply to emission units at a source (as discussed in
this subsection).
\50\ 42 U.S.C. 7413(a), 7604(a)(1), 7604(f)(4); 62 FR 8314
(February 24, 1997).
\51\ See, e.g., In the Matter of Plains Marketing LP and Four
Other Facilities, Order on Petition Nos. IV-2023-1 & IV-2023-3 at 50
(September 18, 2023). Note that the EPA has also indicated that
title V permits cannot be drafted in such a way that would preclude
the use of all credible evidence in enforcement proceedings. See,
e.g., In the Matter of Valero Refining-Texas, L.P., Valero Houston
Refinery, Order on Petition No. VI-2021-8 at 70 (June 30, 2022)
(Valero Houston Order).
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4. ``Part 70 Requirements''
The EPA uses different terminology to refer to different types of
CAA requirements. As previously stated, the term ``applicable
requirement'' refers to substantive CAA requirements arising from other
CAA programs beyond title V, which are generally not subject to further
review during the title V permitting process.
By contrast, the requirements within title V and the EPA's parts 70
and 71 regulations governing the content of title V permits and the
process used to issue them are not technically considered ``applicable
requirements.'' \52\ Instead, the EPA generally refers to these as
``part 70 requirements.'' \53\ Unlike most applicable requirements,
part 70 requirements are established or satisfied
[[Page 61032]]
in the first instance through title V and are, therefore, subject to
review using the unique title V oversight tools.
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\52\ Part 70 requirements do not meet the regulatory definition
of ``applicable requirement'' because they are not included within
the definition's list of 13 types of CAA requirements. Moreover,
some part 70 requirements (e.g., procedural requirements) do not
directly apply to emission units.
\53\ The phrase ``part 70 requirements'' is based on various
portions of the part 70 regulations that refer to the ``requirements
of this part'' as a distinct, and additional, source of requirements
for title V permits from ``applicable requirements'' based on other
CAA programs. See 40 CFR 70.4(b)(3)(v), 70.6(a)(9)(iii),
70.6(a)(10)(iii), 70.7(a)(1)(iv), 70.8(b)(2), 70.8(c)(1), and
70.12(a)(2). This concept is also relevant with respect to EPA-
issued permits under 40 CFR part 71, in which a similar distinction
exists between ``applicable requirements'' derived from other CAA
programs and the requirements of part 71 that are derived from title
V of the CAA. See, e.g., 40 CFR 71.10(g)(1). However, given that
this issue most often arises in the context of State-issued part 70
permits, this preamble uses the term ``part 70 requirements'' to
refer to requirements derived from title V.
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For example, the requirements that dictate the content of title V
permits are part 70 requirements (not applicable requirements). These
include, for example, the requirement that title V permits include and
assure compliance with ``applicable requirements'' established
elsewhere and the authority to impose, as necessary, additional
monitoring and other compliance assurance provisions.\54\ Further, the
requirements related to public participation in title V permits, the
availability of information, and related procedural requirements are
all part 70 requirements (not applicable requirements).\55\ Title V and
the part 70 regulations contain other unique title V authorities, such
as the ``permit shield'' under CAA section 504(f) and 40 CFR
70.6(f).\56\ These part 70 requirements are subject to the additional
oversight mechanisms unique to title V.
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\54\ See, e.g., 40 CFR 70.6(a) and (c).
\55\ See 40 CFR 70.7(h).
\56\ The permit shield is discussed in more detail in section
III.E.2.a of this preamble, to the extent it impacts NSR permitting
decisions.
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E. Self-Implementing Applicable Requirements (e.g., NSPS, NESHAP)
This subsection addresses applicable requirements with the most
straightforward title V implementation, often referred to as ``self-
implementing'' or ``self-executing'' requirements. The hallmark of a
self-implementing requirement is that the underlying statutory or
regulatory provision defines it with enough specificity for the
requirement to be independently and immediately enforceable, even
before a source goes through the permitting process. These applicable
requirements require no further case-specific decision making (e.g.,
through a permitting process) to define the precise requirements to
which a source is subject. Such requirements consist of prescribed
emission standards, operational limitations, testing, monitoring,
recordkeeping, reporting, and other compliance assurance requirements.
These requirements are explicitly identified within EPA regulations
(e.g., NSPS under CAA section 111, NESHAP under CAA section 112,
Federal Plans under CAA section 111(d), similar rules under CAA section
129, or FIPs under CAA section 110(c)) or EPA-approved State
regulations (e.g., SIPs under CAA section 110(a) or State Plans under
CAA sections 111(d) or 129).
Such self-implementing applicable requirements should be included
in, or incorporated into, a title V permit without further review.\57\
It would not be appropriate, for example, to use the title V permitting
process to reevaluate the stringency of a Maximum Achievable Control
Technology (MACT) standard promulgated by the EPA through rulemaking
under CAA section 112.\58\ The same is true with respect to the content
of self-implementing standards contained in SIPs, as discussed further
in section II.G of this preamble.
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\57\ The manner in which such requirements may be included in,
or incorporated by reference into, a title V permit is beyond the
scope of this rulemaking. For more information about incorporation
by reference, see, for example, In the Matter of ExxonMobil Corp.,
Baytown Chemical Plant, Order on Petition No. VI-2020-9 at 16-19
(March 18, 2022) (ExxonMobil Baytown Chemical Order) and White Paper
Number 2 for Improved Implementation of the Part 70 Operating
Permits Program, 36-41 (March 5, 1996).
\58\ See, e.g., In the Matter of Borden Chemical, Inc.
Formaldehyde Plant, Order on Petition No. 6-01-1 at 48-49 (December
22, 2000).
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Central to the concept of ``applicable requirements'' is that each
applicable requirement is established through its own statutorily
proscribed process, which includes the ability for the public to
participate in the development of the requirement and for interested
parties to challenge its content. For example, the EPA regulations
referenced in the preceding paragraphs undergo administrative
proceedings under CAA section 307, which establishes various procedural
and public participation-related requirements, as well as the
opportunity for judicial review of final regulations.\59\ The
promulgation and approval of SIPs often involves two such rulemakings--
one at the State level and one at the Federal level. Thus, the fact
that self-implementing applicable requirements are not substantively
reevaluated through title V does not mean that interested parties are
without recourse. Rather, it means that the title V permitting process
was not designed to review and does not authorize review of these
previously finalized applicable requirements.
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\59\ 42 U.S.C. 7607(b)-(d).
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Given title V's key role in consolidating applicable requirements,
questions often arise during the permitting process as to which CAA
requirements are applicable to a given source or emission unit. To the
extent that applicability is clearly established within the applicable
requirement itself (e.g., a source-specific SIP provision),
applicability would not be subject to further scrutiny through title V.
In situations where the applicability of a ``self-implementing''
requirement to a particular source has not been conclusively
established prior to title V permit issuance, the title V permitting
process can and should be used to determine which requirements apply to
the source so that the title V permit can include and assure compliance
with those requirements. For example, determining which NSPS or NESHAP
subpart is applicable to a source may require further site-specific
factual analysis through the title V permitting process. Additionally,
within a given NSPS or NESHAP rule, there may be multiple different
sets of requirements (e.g., subcategories) that apply differently to
emission units with different characteristics. In these situations, it
may be necessary to use the title V permitting process to identify
which specific requirements within a NSPS or NESHAP rule apply.
Finally, although substantive requirements that are self-
implementing may not be second-guessed, the title V permitting process
may be used to determine whether additional compliance assurance
provisions (e.g., monitoring) are necessary.\60\ Further guidance on
determining the sufficiency of monitoring and other compliance
assurance provisions is beyond the scope of this final rule.
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\60\ See 42 U.S.C. 7661c(c); 40 CFR 70.6(c)(1); Sierra Club v.
EPA, 536 F.3d at 680.
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F. Requirements Defined Through Title V Permitting
Although title V generally does not impose or establish substantive
new requirements, title V permits sometimes serve as the vehicle to
further define applicable requirements from other CAA programs that are
general in nature. This may occur when the underlying applicable
requirement provides general direction and requires further source-
specific analysis to define the precise requirements that apply to a
given source or emission unit. Some underlying applicable requirements
expressly identify title V permits as the vehicle for this analysis;
others may be more open-ended about the vehicle used to define the
applicable requirement; and still others may specify a different
vehicle for establishing these requirements (e.g., NSR permits,
discussed further in section III of this preamble).
Unlike applicable requirements that are established fully
elsewhere, if the details of an applicable requirement are defined for
the first time through the title V permitting process, questions about
the content of such an applicable requirement are subject to title V's
[[Page 61033]]
unique oversight tools, including the EPA's objection authority and the
public petition opportunity.
For example, CAA section 112(g) requires the development of case-
by-case MACT limits prior to certain construction activities at a major
source of hazardous air pollutants (HAPs) for which there is no NESHAP
under CAA section 112(d).\61\ These limits can--and in some cases,
must--be established through the title V process. If a title V permit
is used to establish a case-by-case MACT limit, questions about both
the applicability and the content of such a limit (i.e., whether the
limit properly reflects MACT) are subject to the unique oversight tools
of title V.\62\
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\61\ Under CAA section 112(g)(2), if the EPA has not established
a MACT standard for a source category, the Agency or the State must
establish a case-by-case MACT emission limit prior to certain
construction activities at a major source of HAPs. 42 U.S.C.
7412(g)(2). Similarly, under CAA section 112(j)(2), if the EPA has
not established a MACT standard for a source category, a new or
existing major source's title V operating permit must include a
case-by-case MACT limit. 42 U.S.C. 7412(j)(2); see also 40 CFR 63.40
through 63.44 (implementing regulations for CAA section 112(g)), and
63.50 through 63.56 (implementing regulations for CAA section
112(j)).
\62\ See 61 FR 68384, 68393, 68395 (December 27, 1996) (``Where
EPA determines that the MACT determination made by the permitting
authority fails to meet any of the requirements of Sec. 63.43 [and]
where the MACT determination is made part of a source's Part 70
permit, EPA may veto issuance of the permit in accordance with the
provisions of 40 CFR 70.8(c).''); id. at 68395 (``If, during the
EPA's review of the section 112(g) determination, it becomes
apparent that the determination is not in compliance with the Act,
then EPA must object to the issuance or revision of that permit.'');
In the Matter of American Electric Power Service Corp., Southwest
Electric Power Co., John W. Turk Plant, Order on Petition No. VI-
2008-01 at 15-16 (December 15, 2009); In the Matter of Shintech
Inc., PVC Plant, Order on Petition No. 6-03-1 at 16-21 (July 3,
2003).
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Other requirements of CAA section 112 NESHAP and section 111 NSPS
regulations may require further definition through, for example,
various types of site-specific operational plans. These plans are
developed outside of the title V permitting process, but to the extent
they are necessary to impose or assure compliance with an applicable
requirement of the NSPS or NESHAP, they must be included or
incorporated into title V permits.\63\ The title V permitting process
may also be used for similar case-by-case decisions based on underlying
SIP provisions, as discussed further in the following subsection of
this preamble.
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\63\ See, e.g., Valero Houston Order at 25-26.
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In these situations, it is not the title V permit that establishes
the applicable requirement. The applicable requirement is still based
on the underlying statutory or regulatory provision, but the title V
permit defines the precise details of the applicable requirement.
Essentially, the title V permitting process is used to identify the
specific ``enforceable emission limitations and standards'' and to
develop ``such other conditions as are necessary to assure compliance
with the [more general underlying] applicable requirements . . . .''
\64\ Absent an underlying CAA-based authority, title V permits should
not be used to impose new substantive requirements.\65\
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\64\ 42 U.S.C. 7661c(a).
\65\ 40 CFR 70.1(b).
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G. Applicable Requirements Related to the NAAQS and SIPs
The NAAQS promulgated or revised under CAA section 109 are not
themselves applicable requirements because they do not apply directly
to sources.\66\ That is, the promulgation or revision of a NAAQS does
not, in and of itself, automatically result in emission limits or other
control measures applicable to a source. Instead, the NAAQS may create,
subject to the area designation process and various additional
statutory considerations and processes, an obligation on States to
develop SIPs (and on the EPA to promulgate FIPs, as necessary) that
contain requirements necessary to achieve and maintain the NAAQS.\67\
The specific measures contained in each State's EPA-approved SIP to
achieve the NAAQS are the applicable requirements with which sources
must comply.\68\ For purposes of title V permitting, this means that
absent a specific directive in an EPA-approved SIP, a State does not
have any general obligation to establish emission limitations or other
standards within a title V permit to protect the NAAQS. Whether it may
be necessary to establish such NAAQS-focused limitations in a title V
permit depends on the relevant terms of the approved SIP.
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\66\ 42 U.S.C. 7409; see 40 CFR 70.2 (defining ``applicable
requirement'' to include the NAAQS ``but only as it would apply to
temporary sources''); 57 FR at 32276 (July 21, 1992) (``Under the
Act, NAAQS implementation is a requirement imposed on States in the
SIP; it is not imposed directly on a source. In its final rule, EPA
clarifies that the NAAQS and the increment and visibility
requirements under part C of title I of the Act are applicable
requirements for temporary sources only.''); 56 FR at 21732-33 (May
10, 1991) (``The EPA does not interpret compliance with the NAAQS to
be an `applicable requirement' of the Act.'').
\67\ 42 U.S.C. 7410(a)(1), (c)(1).
\68\ 40 CFR 70.2.
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Some applicable requirements in SIPs could be described as ``self-
implementing'' in a manner similar to the EPA's NSPS and NESHAP
requirements discussed in section II.E of this preamble. For example, a
SIP provision may impose a numerical emission limit or operational
limit on a specifically identified source. Or, a SIP provision,
``permit by rule,'' or ``general permit'' within the SIP may impose
similar requirements on a category of sources or emission units. Such
requirements should be included in the source's title V permit without
further review (except, of course, to ensure that the permit contains
sufficient monitoring and other compliance assurance conditions).
Nonetheless, the EPA has received many title V petitions challenging
such requirements contained in an EPA-approved SIP. Some petitions have
directly challenged the SIP provision itself, asserting that the SIP
requirement was incorrectly established or failed to satisfy certain
legal requirements governing SIPs. More often, petitions have
challenged permit terms that repeat verbatim an approved SIP provision;
such claims effectively challenge the SIP itself. As the EPA has
explained in those circumstances, if an alleged problem lies with the
content of the SIP, the proper remedy would be petitioning the EPA to
make a ``SIP Call'' under CAA section 110(k), not a title V petition.
Until the EPA approves a corrective SIP revision or issues a FIP, the
SIP provision remains an ``applicable requirement'' that should be
incorporated unchanged into the title V permit. The EPA has
consistently denied title V petition claims on this basis.\69\
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\69\ See, e.g., In the Matter of Piedmont Green Power, Order on
Petition No. IV-2015-2 at 28-29 (December 13, 2016) (Piedmont Green
Power Order); In the Matter of Pacificorp's Jim Bridger and Naughton
Electric Utility Steam Generating Plants, Order on Petition No.
VIII-00-1 at 23-24 (November 16, 2000).
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Other SIP requirements are less specific and must be further
defined in subsequent proceedings (generally before the State) that
involve a fact-specific analysis of the relevant affected sources and
emission units.\70\ Depending on the nature of the SIP provisions at
issue, this analysis may involve, for example, various methods of
qualitatively or quantitatively assessing a source's impact on the
NAAQS (including, but not limited to, ambient air dispersion modeling).
This analysis may also result in case-by-case emission limits designed
to protect the NAAQS. Determining the proper venue for satisfying or
defining these general
[[Page 61034]]
SIP requirements depends on the specific language contained in the SIP,
as discussed in the following paragraphs.
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\70\ See, e.g., 56 FR at 21757 (May 10, 1991) (``Where SIP
requirements are clear, the Part 70 permit must adopt these
limitations and reestablish them as permit conditions that implement
the SIP. Where the SIP requirements are ambiguous or absent, the
permit could provide a way of resolving questions as to how the SIP
applies and is enforced.'').
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In general, most SIP provisions provide that case-by-case decisions
necessary to fulfill general SIP requirements will proceed either
through subsequent rulemaking actions or through the NSR permitting
process (as discussed in section III of this preamble).\71\ Once
established, the more specific requirements of the SIP, as defined
through those processes, are generally not subject to further review
during the title V permitting process.
---------------------------------------------------------------------------
\71\ See, e.g., In the Matter of TransAlta Centralia Generation,
LLC, Order on Petition at 11-12 (April 28, 2011).
---------------------------------------------------------------------------
However, some SIP requirements may be defined for the first time in
a title V permit, in which case the contents of these requirements are
reviewable using the unique title V oversight tools. Again, whether a
SIP-based requirement is reviewable through the title V process depends
on the specific SIP provision at issue. For example, the EPA has
reviewed (and granted) title V petitions requesting analysis of a
source's impacts on the NAAQS or case-specific emission limits designed
to protect the NAAQS in situations in which the SIP provisions at issue
specifically suggested that such requirements would be implemented
through title V.\72\ In such cases, the EPA has generally provided the
permitting authority the opportunity to interpret the relevant SIP
provisions and to explain the scope, timing, and applicability of these
provisions as they relate to the source in question.
---------------------------------------------------------------------------
\72\ See In the Matter of In the Matter of Alabama Power Co.,
Barry Generating Plant, Order on Petition No. IV-2021-5 at 11-14
(June 14, 2022) (granting a claim related to a SIP provision that
required owner/operators of a certain type of source to
``[d]emonstrate, to the satisfaction of the [State], that sulfur
oxides emitted, either alone or in contribution to other sources,
will not interfere with attainment and maintenance of any primary or
secondary [NAAQS]''); In the Matter of Duke Energy, LLC, Asheville
Steam Electric Plant, Order on Petition No. IV-2016-06 at 11-17
(June 30, 2017) (granting claim related to a SIP requirement that
``the permit shall contain a condition requiring'' controls more
stringent than the applicable emission standards when necessary to
prevent a violation of the NAAQS--a provision the State had
previously relied upon to establish limits in individual permits);
In the Matter of Duke Energy, LLC, Roxboro Steam Electric Plant,
Order on Petition No. IV-2016-07 at 10-15 (June 30, 2017) (same as
Duke Asheville); In the Matter of Public Service of New Hampshire,
Schiller Station, Order on Petition No. VI2014-04 at 8-13 (July 28,
2015) (granting claim related to a SIP requirement to ``apply
special emission limits to the stationary sources on a case-by-case
basis to insure [sic] that their air quality impacts'' do not
interfere with NAAQS attainment in adjacent States).
---------------------------------------------------------------------------
The EPA has also addressed other, more general SIP provisions that
do not explicitly require any specific action during the title V
process. These provisions often take the form of broad, general
prohibitions on air pollution, and these SIP provisions are not always
directly tied to the NAAQS or any specific Federal requirements. The
EPA has explained that States have discretion under these general SIP
provisions to determine that it is not necessary to impose source-
specific limits through title V permits.\73\ However, this does not
prevent States from using title V to address such general
requirements.\74\
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\73\ See In the Matter of EME Homer City Generation LP and First
Energy Generation Corp., Order on Petition Nos. III2012-06, III-
2012-07, and III-2013-02 at 15-16 (July 30, 2014) (SIP provision
stated ``No person may permit air pollution as that term is defined
in the act''); In the Matter of TransAlta Centralia Generation, LLC,
Order on Petition at 7 (April 28, 2011) (SIP provision prohibited
``emissions detrimental to persons or property''); In the Matter of
Hercules, Inc., Order on Petition at 8 (November 10, 2004) (SIP
provision prohibited emissions that would cause injury or
unreasonably interfere with enjoyment of life or use of property).
\74\ See, e.g., In the Matter of Oxbow Calcining LLC, Order on
Petition No. VI-2020-11 at 10-12 (June 14, 2022) (addressing a
situation in which a State permitting authority took enforcement
action against a source that allegedly caused a violation of a NAAQS
on the basis that this alleged violation also violated permit terms
reflecting a general SIP provision prohibiting air pollution).
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Although uncommon, some SIP provisions expressly identify title V
permits as a vehicle for establishing or modifying SIP-based limits.
For example, some SIP provisions based on the EPA's Plantwide
Applicability Limit (PAL) rules expressly identify title V renewal
permits as a potential vehicle for adjusting a PAL.\75\ If the title V
process is specifically identified in an approved SIP as a means of
establishing or defining an applicable requirement of the SIP,
questions related to these requirements may be properly raised during
the title V permitting process.
---------------------------------------------------------------------------
\75\ See, e.g., 40 CFR 51.166(w)(10)(v); ExxonMobil Baytown
Chemical Order 9 at 13-14.
---------------------------------------------------------------------------
III. Interface Between NSR and Title V Permitting
Since the title V program was established in the early 1990s, the
EPA, State permitting authorities, and other interested stakeholders
have raised questions related to the intersection of the title I (NSR)
preconstruction permitting programs and the title V operating permit
program.\76\ One question has persisted related to the situations in
which, and the extent to which, the unique title V oversight tools
should be used to address alleged deficiencies related to title I
permitting decisions. This issue implicates various questions about the
relationship between title V permits and applicable requirements
established in other CAA programs, such as how to determine whether an
applicable requirement is conclusively established, such that it should
be incorporated into a title V permit without further substantive
review, and whether applicable requirements established under NSR
permitting programs should be treated the same as applicable
requirements established under other CAA programs. The EPA's answer to
these questions has changed over time, and two Federal circuit courts
of appeals have reached differing conclusions as well, as discussed in
section III.A of this preamble.
---------------------------------------------------------------------------
\76\ For purposes of this preamble, the terms ``title I permit''
and ``NSR permit'' are used interchangeably to describe a
preconstruction permit issued to satisfy the NSR-related
requirements of title I of the CAA.
---------------------------------------------------------------------------
This final rule codifies the reasonable approach that the EPA has
implemented on a case-by-case basis since 2017, as further described
and justified in sections III.B., III.C, and III.D of this preamble. In
short, provided that a source obtains an NSR permit under EPA-approved
(or EPA-promulgated) title I rules, with public notice and the
opportunity for comment and judicial review, that NSR permit
establishes and defines the relevant NSR-related applicable
requirements of the SIP (or FIP) for purposes of title V. As with
applicable requirements established under other CAA authorities (e.g.,
NSPS, NESHAP), the EPA will not reevaluate those NSR decisions through
the title V process, which is not designed to authorize or require
permitting authorities to second-guess prior NSR decisions when
implementing title V.
A. Background: Historical and Current EPA Approaches
1. NSR Programs (1977-Present)
The title I (NSR) preconstruction permitting program was
established before the title V operating permit program. The NSR
program is based on the 1977 Amendments to the CAA. The overall NSR
program is comprised of three sub-programs, as discussed later in this
section of this preamble.
The NSR program was designed to protect public health and welfare
from the effects of air pollution and to preserve and improve air
quality throughout the Nation.\77\ The NSR program requires certain
stationary sources to obtain air permits prior to beginning
construction. Construction of new sources and the modification of
certain sources with emissions above
[[Page 61035]]
statutory or regulatory thresholds are subject to ``major source'' NSR
requirements. New sources and modifications below the relevant
emissions thresholds may be subject to minor NSR requirements or
excluded from NSR altogether.
---------------------------------------------------------------------------
\77\ 42 U.S.C. 7470(1), (2), (4).
---------------------------------------------------------------------------
The major NSR program includes two distinct programs that each has
unique requirements for new or modified sources. The applicability of
these two programs depends on whether the area in which the source is
located exceeds the NAAQS for one or more pollutants. The Prevention of
Significant Deterioration (PSD) program, based on requirements in part
C of title I of the CAA, applies to pollutants for which the area is
not exceeding the NAAQS (i.e., areas designated as attainment or
unclassifiable) and to regulated NSR pollutants for which there are no
NAAQS.\78\ The Nonattainment NSR (NNSR) program, based on part D of
title I of the CAA, applies to pollutants for which the area is not
meeting the NAAQS (i.e., areas designated as nonattainment).\79\
---------------------------------------------------------------------------
\78\ 42 U.S.C. 7470-79.
\79\ 42 U.S.C. 7501-15.
---------------------------------------------------------------------------
To implement the CAA requirements for these programs, most States
have EPA-approved SIPs containing PSD and NNSR preconstruction
permitting programs that meet the minimum requirements reflected in the
EPA's major NSR program regulations at 40 CFR 51.165 and 51.166. Upon
EPA approval of a SIP, the State or local air agency becomes the
permitting authority for major NSR permits for sources within its
boundaries and issues permits under State law. Currently, State and
local air agencies issue the vast majority of major NSR permits. If a
State or local air agency does not have an approved NSR program,
Federal regulations (40 CFR 52.21, through incorporation into a FIP)
apply, and either the EPA issues the major NSR permits or a State or
local air agency issues the major NSR permits on behalf of the EPA by
way of a delegation agreement. For sources located in Indian Country,
the EPA is the permitting authority for major NSR.\80\
---------------------------------------------------------------------------
\80\ See 18 U.S.C. 1151 (defining ``Indian country'').
---------------------------------------------------------------------------
The permitting program for construction of new and modified non-
major sources and minor modifications to major sources is known as the
minor NSR program. In addition to the specific major NSR requirements
in CAA sections 165 and 173, CAA section 110(a)(2)(C) requires States
to develop a program to regulate the construction and modification of
any stationary source ``as necessary to assure that [NAAQS] are
achieved.'' \81\ The CAA and the EPA's regulations are less
prescriptive regarding minimum requirements for minor NSR, so air
agencies generally have more flexibility in designing minor NSR
programs in their EPA-approved SIPs.\82\ Minor NSR permits are almost
exclusively issued by State and local air agencies, although the EPA
issues minor NSR permits in many areas of Indian Country.\83\
---------------------------------------------------------------------------
\81\ 42 U.S.C. 7410(a)(2)(C).
\82\ See 40 CFR 51.160 through 51.164.
\83\ See 40 CFR 49.151 through 49.165.
---------------------------------------------------------------------------
The applicability of the PSD, NNSR, and minor NSR programs to a
stationary source must be determined in advance of construction and is
a pollutant-specific determination. Thus, a stationary source may be
subject to the PSD program for certain pollutants, NNSR for some
pollutants, and minor NSR for others.
2. Original Approach to the Title V-NSR Interface (1990-1997)
As noted previously, Congress enacted title V in the 1990 CAA
Amendments. The legislative history indicates key committees and
legislators intended that, notwithstanding the enactment of title V,
NSR permits would continue to be issued as they had for over a decade,
and that title V permits would be used to incorporate those
requirements but not to alter or impose additional NSR-related
requirements.\84\ The text and structure of the CAA implicitly reflects
this paradigm. However, the statute does not expressly prescribe the
details of how the EPA should approach the intersection of the NSR and
title V permitting programs.
---------------------------------------------------------------------------
\84\ See sections III.C.2 and III.C.3 of this preamble for
further discussion of legislative intent.
---------------------------------------------------------------------------
Thus, when the EPA promulgated the original title V implementing
regulations in 1991 and 1992, the Agency sought to provide clarity
through multiple regulatory provisions. As noted earlier in this
preamble, 40 CFR 70.1(b) states: ``All sources subject to these
regulations shall have a permit to operate that assures compliance by
the source with all applicable requirements. While title V does not
impose substantive new requirements, it does require that . . . certain
procedural measures be adopted especially with respect to compliance.''
Additionally, the EPA created a definition of ``applicable
requirement'' in 40 CFR 70.2 (and later, 40 CFR 71.2) that includes, in
relevant part: ``all of the following as they apply to emissions units
in a part 70 source . . . (1) Any standard or other requirement
provided for in the applicable implementation plan approved or
promulgated by EPA through rulemaking under title I of the Act that
implements the relevant requirements of the Act, including any
revisions to that plan promulgated in part 52 of this chapter; (2) Any
term or condition of any preconstruction permits issued pursuant to
regulations approved or promulgated through rulemaking under title I,
including parts C or D, of the Act.''
In the preamble of this initial part 70 rulemaking effort, the EPA
spoke directly to the intersection of title V and title I permitting.
The EPA did not express an intention to use the title V permitting
process to review the substance of applicable requirements established
in preconstruction permitting programs under title I of the CAA. To the
contrary, the EPA stated that ``[a]ny requirements established during
the preconstruction review process also apply to the source for
purposes of implementing title V. If the source meets the limits in its
NSR permit, the title V operating permit would incorporate these limits
without further review.'' \85\ The EPA stated clearly that ``[t]he
intent of title V is not to second-guess the results of any State NSR
program.'' \86\ The EPA stated that ``[d]ecisions made under the NSR
and/or PSD programs (e.g., Best Available Control Technology [BACT])
define applicable SIP requirements for the title V source and, if they
are not otherwise changed, can be incorporated without further review
into the operating permit for the source.'' \87\ The preamble to the
final rule further confirms that ``[d]ecisions made under the NSR and/
or PSD programs define certain applicable SIP requirements for the
title V source.'' \88\
---------------------------------------------------------------------------
\85\ 56 FR 21712, 21738-39 (May 10, 1991) (emphasis added).
\86\ Id. at 21739 (emphasis added).
\87\ Id. at 21721 (emphasis added).
\88\ 57 FR 32250, 32259 (July 21, 1992) (emphasis added).
---------------------------------------------------------------------------
3. Revised Approach to the Title V-NSR Interface (1997-2017)
After State permitting authorities began issuing title V permits in
the mid-to-late-1990s, the EPA began receiving public petitions
challenging those permits. Some of the earliest title V petitions
included challenges to various types of NSR permitting decisions,
thereby testing the statements the EPA made when promulgating its part
70 rules. The EPA's approach ultimately differed depending on whether
the underlying NSR permit was issued under the EPA's Federal PSD rules
(40 CFR 52.21, administration of which was
[[Page 61036]]
delegated to many States at the time) or under EPA-approved SIP rules.
For NSR permits issued under the Federal rules, the EPA's petition
responses from 1997 onward followed the Agency's interpretations and
statements of intent from the early 1990s. The EPA declined to use the
title V petition process to review the merits of NSR permits issued by
the EPA or a delegated agency under a FIP. The EPA's reasoning at the
time was that appeals of such NSR permits are governed by 40 CFR 124.19
and are heard exclusively through the EPA Environmental Appeals Board
(EAB) appeals process. Thus, the EPA concluded that the Agency need not
entertain claims that such permits are deficient when raised in a
petition to object to a title V permit.\89\ The EPA consistently
reiterated the same or similar statements in the decades that
followed.\90\
---------------------------------------------------------------------------
\89\ See In the Matter of Maui Electric Co., Ltd., Order on
Petition (June 16, 1999); In the Matter of Hawaii Electric Light Co.
Ltd., Order on Petition (April 3, 1998); In the Matter of Kawaihae
Cogeneration, Order on Petition (March 10, 1997) (Kawaihae Order).
\90\ See, e.g., In the Matter of East Kentucky Power
Cooperative, Inc., Hugh L. Spurlock Generating Station, Order on
Petition at 5 n.2 (August 30, 2007) (Spurlock I Order); In the
Matter of Carmeuse Lime and Stone, Order on Petition No. V-2010-1 at
7 n.1 (November 4, 2011); see also Hu Honua I Order at 3 n.4.
---------------------------------------------------------------------------
However, starting in 1997, the EPA adopted a different approach to
title V permitting with respect to NSR permits issued by State
permitting authorities under EPA-approved SIP rules.\91\ The EPA began
to interpret section (1) of the definition of ``applicable
requirement'' to allow the EPA, States, and the interested parties to
use the title V permitting process to examine the propriety of prior
title I permitting decisions. For instance, in the 1997 Shintech I
Order, the EPA stated:
---------------------------------------------------------------------------
\91\ For example, within the 1997 Kawaihae Order, in which the
EPA declined to review the merits of a PSD permit issued under
delegated Federal authority, the Agency also announced the following
(without further explanation): ``In contrast, where a state or local
government has a SIP-approved PSD program and the [EAB] lacks
jurisdiction to entertain PSD permit appeals, the merits of PSD
issues are ripe for consideration in a timely veto petition under
Title V.'' Kawaihae Order at 3.
Where a state or local government has a SIP-approved PSD
program, the merits of PSD issues can be ripe for consideration in a
timely petition to object under Title V. Under 40 CFR 70.1(b), ``all
sources subject to Title V must have a permit to operate that
assures compliance by the source with all applicable requirements.''
Applicable requirements are defined in section 70.2 to include ``(1)
any standard or other requirement provided for in the applicable
implementation plan approved or promulgated by EPA through
rulemaking under Title I of the [Clean Air] Act . . . .'' The
[State] defines ``federal applicable requirement,'' in relevant
part, to include ``any standard or other requirement provided for in
the Louisiana [SIP] approved or promulgated by EPA through
rulemaking under title I of the Clean Air Act that implements the
relevant requirements of the Clean Air Act, including any revisions
to that plan promulgated in 40 CFR part 52, subpart T.'' Thus, the
applicable requirements of the Shintech Permits include the
requirement to obtain a PSD permit that in turn complies with the
applicable PSD requirements under the Act, EPA regulations, and the
Louisiana SIP.\92\
---------------------------------------------------------------------------
\92\ Shintech I Order at 3 n.2 (emphasis added) (citation
omitted).
In a 1999 letter responding to requests from permitting
authorities, the EPA articulated the Agency's then-current
understanding of the interaction of title I and title V.\93\ The letter
stated that ``applicable requirements include the requirement to obtain
preconstruction permits that comply with applicable preconstruction
review requirements under the Act, EPA regulations, and SIP's [sic].''
The letter expressed the view that CAA section 505(b) provides a form
of corrective action in addition to all other enforcement authorities
the EPA has under the CAA. The letter stated that the Agency generally
will not object to a title V permit for NSR determinations ``made long
ago during a prior preconstruction permitting process.'' However,
regarding recently issued NSR permits, the EPA indicated it may object
to improper NSR determinations. Additionally, the letter said that the
EPA could object to a title V permit if the ``EPA believes that an
emission unit has not gone through the proper preconstruction
permitting process.''
---------------------------------------------------------------------------
\93\ U.S. Environmental Protection Agency. (1999). Letter from
John S. Seitz, Director of the EPA Office of Air Quality Planning
and Standards, to Robert Hodanbosi, STAPPA/ALAPCO, available at
<a href="https://www.epa.gov/sites/production/files/2015-08/documents/hodan7.pdf">https://www.epa.gov/sites/production/files/2015-08/documents/hodan7.pdf</a>.
---------------------------------------------------------------------------
The EPA has also used this reading of the Agency's oversight
authority under title V as part of the justification for approving
State PSD programs.\94\ In these approvals, the EPA pointed to the
Agency's authority under title I, sections 113 and 167, but
additionally stated that title V ``has added new tools'' for addressing
concerns with implementation of PSD requirements by allowing for
objection to title V permits under CAA section 505(b). However, the
authority to reevaluate an issued preconstruction permit does not
appear to have been dispositive to the approval of these PSD programs,
as the EPA could still conduct oversight using its title I-based
authorities.
---------------------------------------------------------------------------
\94\ See, e.g., Approval and Promulgation of Implementation
Plans; Oregon, 68 FR 2891, 2899 (January 22, 2003); see also
Approval and Promulgation of Implementation Plans; Idaho;
Designation of Areas for Air Quality Planning Purposes; Idaho, 68 FR
2217, 2221 (January 16, 2003).
---------------------------------------------------------------------------
The EPA followed this approach in responding to title V petitions
between 1997 and 2017. In general, the petition claims at issue alleged
two types of defects related to NSR. First, some claims alleged flaws
with the terms of major NSR permits issued by a State permitting
authority--for example, that BACT limits in a PSD permit were not
stringent enough. The EPA refers to these claims as addressing ``NSR
permit content.'' Second, other claims alleged that a facility should
have received a major NSR permit, instead of a minor NSR permit, to
authorize the construction of a new source or modification. The EPA
refers to these claims as addressing ``NSR applicability.'' For both
types of issues, the EPA indicated that the Agency could review whether
preconstruction permitting decisions complied with the requirements of
the SIP.
During this time period, the EPA often limited or qualified the
Agency's use of title V authorities to address substantive NSR
permitting issues. For example, in 1999, the EPA stated:
In determining BACT under a minor NSR program, as in implementing
other aspects of SIP preconstruction review programs, a State exercises
considerable discretion. Thus, EPA lacks authority to take corrective
action merely because the Agency disagrees with a State's lawful
exercise of discretion in making BACT-related determinations. State
discretion is bounded, however, by the fundamental requirements of
administrative law that agency decisions not be arbitrary or
capricious, be beyond statutory authority, or fail to comply with
applicable procedures.\95\
---------------------------------------------------------------------------
\95\ In the Matter of Roosevelt Regional Landfill, Order on
Petition at 9 (May 4, 1999).
Applying this framework, the EPA also drew an analogy between this
approach and the standard used by the EAB in reviewing EPA-issued PSD
permits, described as a ``clearly erroneous'' standard.\96\ More
recently,
[[Page 61037]]
the EPA summarized this framework as follows:
---------------------------------------------------------------------------
\96\ See, e.g., Spurlock I Order at 4-5 (August 30, 2007) (``The
standard of review applied by the EAB in its review of federal PSD
permits has been explained in numerous orders of the EAB. In short,
in such appeals, the burden is on a petitioner to demonstrate that
review is warranted. Ordinarily, a PSD permit will not be reviewed
by the EAB unless the decision of the permitting authority was based
on either a clearly erroneous finding of fact or conclusion of law
or involves an important matter of policy or exercise of discretion
that warrants review. Thus, when a response to a petition to object
to a title V permit requires the Administrator to determine whether
an approved state's PSD permitting decision was adequately explained
and meets the requirements of its SIP, EPA believes it is
appropriate to apply a similar standard of review to that employed
by the EAB in its review of federal PSD permits. When EPA
promulgated the regulations governing the EAB's exercise of its
review authority, the Agency noted that the power of review `should
be only sparingly exercised.' Similar deference to the permitting
authority is also justified in the case of a PSD permit issued by a
state with an approved PSD program, as is the case here.'' (quoting
45 FR 33290, 33412 (May 19, 1980); citing In re Prairie State
Generating Company, 13 E.A.D. 1 (EAB 2006); In re Kawaihae
Cogeneration, 7 E.A.D. 107 (EAB 1997))).
Where a petitioner's request that the Administrator object to
the issuance of a title V permit is based in whole, or in part, on a
permitting authority's alleged failure to comply with the
requirements of its approved PSD program (as with other allegations
of inconsistency with the Act), the burden is on the petitioner to
demonstrate to the Administrator that the permitting decision was
not in compliance with the requirements of the Act, including the
requirements of the SIP. As the EPA has explained in describing its
authority to oversee the implementation of the PSD program in states
with approved programs, such requirements include that the
permitting authority: (1) follow the required procedures in the SIP;
(2) make PSD determinations on reasonable grounds properly supported
on the record; and (3) describe the determinations in enforceable
terms. As the permitting authority for [the State's] SIP-approved
PSD program, [the State permitting authority] has substantial
discretion in issuing PSD permits. Given this discretion, in
reviewing a PSD permitting decision in the title V petition context,
the EPA generally will not substitute its own judgment for that of
[the State]. Rather, consistent with the decision in Alaska Dep't of
Envt'l Conservation v. EPA, 540 U.S. 461 (2004), in reviewing a
petition to object to a title V permit raising concerns regarding a
state's PSD permitting decision, the EPA generally will look to see
whether the petitioner has shown that the state did not comply with
its SIP-approved regulations governing PSD permitting, or whether
the state's exercise of discretion under such regulations was
unreasonable or arbitrary.\97\
---------------------------------------------------------------------------
\97\ In the Matter of Appleton Coated, LLC, Order on Petition
Nos. V-2013-12 & V-2013-15 at 5 (October 14, 2016) (Appleton Order)
(citations omitted).
Between 1997 and 2017, the EPA occasionally articulated further
restrictions on the use of title V oversight tools to address title I
permitting issues. For example, on at least three occasions, the EPA
indicated that ``the Agency generally does not object to the issuance
of a title V permit due to concerns over BACT or related determinations
made long ago during a prior preconstruction permitting process.'' \98\
---------------------------------------------------------------------------
\98\ In the Matter of Georgia Pacific Consumer Products LP
Plant, Order on Petition No. V-2011-1 at 17 (July 23, 2012);
Spurlock I Order at 19; see In the Matter of Chevron Products
Company, Richmond, California Facility, Order on Petition No. IX-
2004-08 at 9 (March 15, 2005). Note that this statement is based on
the EPA policy articulated in the 1999 letter discussed in footnote
93.
---------------------------------------------------------------------------
Additionally, on at least one occasion, the EPA suggested that the
title V petition demonstration burden may require a final determination
that NSR applies before the Agency can use the title V process to
overturn an NSR applicability decision made by the permitting
authority.\99\ The EPA found ``that [the State] has not reached a final
determination in this permitting context that PSD is an applicable
requirement for these sources, that the USEPA has not determined
otherwise, and that a court has not issued a determination in the
litigation context. Accordingly, there is no requirement under the
facts of this case for the permits to include either PSD limits or a
compliance schedule for the source to come into compliance with such
limits at this time.'' The EPA concluded that ``even if [the State]
were to recognize that the potential for noncompliance [with title I
preconstruction permitting requirements] exists, it is not required to
pursue inquiries further in the title V context,'' but instead could
pursue the matter through title I enforcement mechanisms.
---------------------------------------------------------------------------
\99\ In the Matter of Midwest Generation-Joliet Generating
Station and Will County Generating Stations, Order on Petition No.
V-2005-2 at 9-10 (June 14, 2007).
---------------------------------------------------------------------------
4. Current Approach to the Title V-NSR Interface (2017-Present)
Beginning in 2017, the EPA adopted a more nuanced view that better
reflects not only the statute and Congress's intent, but also the EPA's
regulatory definition of ``applicable requirement'' and the manner in
which the title V permitting program interacts with other types of CAA
requirements. As with many of the EPA's views on this topic, the
Agency's updated view was articulated within Administrator-signed
orders responding to title V petitions on individual title V permits.
The first such order was the 2017 PacifiCorp-Hunter I Order.\100\
There, the EPA interpreted the CAA and the EPA's title V regulations
not to require permitting authorities (including the EPA) to examine
the merits of certain title I permitting decisions in the title V
permitting context. Specifically, in response to a petition claiming
that a PSD permit (instead of a minor NSR permit) was required for
certain changes that occurred at the facility at issue approximately 20
years prior, the EPA explained:
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\100\ In the Matter of PacifiCorp Energy, Hunter Power Plant,
Order on Petition No. VIII-2016-4 (October 16, 2017).
In circumstances such as those present here where a
preconstruction permit has been duly obtained, . . . when a
permitting authority has made a source-specific permitting decision
with respect to a particular construction project under title I,
those decisions ``define certain applicable SIP requirements for the
title V source'' for purposes of title V permitting. 57 FR 32250,
32259 (July 21, 1992). The EPA is now interpreting the regulations
to mean that the issuance of a[n NSR] permit defines the
applicability of preconstruction requirements under section (1) of
the definition of ``applicable requirement'' for the approved
construction activities for the purposes of permitting under title V
of the Act. These source-specific permitting actions take the
general preconstruction permitting requirements of the SIP--the
requirement to obtain a particular type of permit and the
substantive requirements that must be included in each type of
permit--and evaluate at the time of the permitting decision whether
and how to apply them to a proposed construction or
modification.\101\
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\101\ PacifiCorp-Hunter I Order at 10-11. As the EPA explained:
``This interpretation applies to the facts of this Claim, where a
permitting authority issued a source-specific title I
preconstruction permit subject to public notice and comment and for
which judicial review was available.'' Id. at 11 n.21.
---------------------------------------------------------------------------
Further, the EPA stated:
Consistent with this reading, permitting agencies and the EPA
need not reevaluate--in the context of title V permitting,
oversight, or petition responses--previously issued final
preconstruction permits, especially those that have already been
subject to public notice and comment and an opportunity for judicial
review. Concerns with these final preconstruction permits should
instead be handled under the authorities found in title I of the
Act. Where a final preconstruction permit has been issued, whether
it is a major or minor NSR permit, the terms and conditions of that
permit should be incorporated as ``applicable requirements'' and the
permitting authority and the EPA should limit its review to whether
the title V permit has accurately incorporated those terms and
conditions and whether the title V permit includes adequate
monitoring, recordkeeping, and reporting requirements to assure
compliance with the terms and conditions of the preconstruction
permit.\102\
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\102\ Id. at 19 (citing 42 U.S.C. 7661c(a); 40 CFR 70.6(a)(3),
70.6(c)(1)).
Shortly after issuing the PacifiCorp-Hunter I Order, the EPA issued
the Big River Steel Order,\103\ which applied similar statutory and
regulatory interpretations to a different circumstance. In the Big
River Steel Order, the EPA declined to use the title V petition process
to review whether a PSD permit satisfied the relevant SIP
[[Page 61038]]
requirements governing PSD permit content (including BACT) and modeling
related to the NAAQS. The EPA did so notwithstanding the fact that the
PSD permit at issue, and the title V permit being petitioned, were
issued at the same time and in the same physical permit document.
---------------------------------------------------------------------------
\103\ In the Matter of Big River Steel, LLC, Order on Petition
No. VI-2013-10 (October 31, 2017).
---------------------------------------------------------------------------
Since the 2017 PacifiCorp-Hunter I and Big River Steel Orders, the
EPA has issued approximately 30 other title V petition orders
addressing similar issues under different fact patterns, as discussed
in the following paragraphs. Although the EPA has largely followed the
overarching interpretations and policies articulated in the PacifiCorp-
Hunter I and Big River Steel Orders,\104\ each decision about whether
those interpretations were applicable depended on the specific facts at
issue.\105\ Through these case-by-case decisions, the EPA has clarified
various aspects of the Agency's interpretation of the title V
provisions. However, because those decisions are spread across many
different orders, the EPA understands that not all stakeholders,
including permitting authorities, permittees, and members of the
public, may fully understand the Agency's views about which types of
issues are, or are not, subject to review through title V. This
apparent misunderstanding has persisted, notwithstanding the EPA's
attempt to explain the Agency's views in the preamble to the January
2024 Proposed Rule.\106\ Thus, the EPA seeks to clarify its position by
providing a summary below of the most relevant aspects of these prior
decisions.
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\104\ As discussed later in this preamble, in response to a 2020
decision by the U.S. Court of Appeals for the Tenth Circuit, the EPA
has not applied this approach in title V petition orders regarding
facilities located within the jurisdiction of the Tenth Circuit in
certain circumstances and, therefore, has not fully achieved
national uniformity in this respect.
\105\ See, e.g., PacifiCorp-Hunter I Order at 11 n.21 (``This
interpretation applies to the facts of this Claim, where a
permitting authority issued a source-specific title I
preconstruction permit subject to public notice and comment and for
which judicial review was available. The EPA is not considering at
this time whether other circumstances may warrant a different
approach.''); Sierra Club v. EPA, 926 F.3d 844, 850 (D.C. Cir. 2019)
(emphasizing the case-specific nature of the EPA's decision to apply
the interpretation at issue in the PacifiCorp-Hunter I Order, as
well as the case-specific nature of any future EPA decisions to
apply or not apply the same interpretation to different fact
patterns).
\106\ In recent permitting decisions and title V petitions, the
EPA has observed that both State permitting authorities and public
petitioners have often misapplied, misinterpreted, or ignored the
interpretations and policies expressed in these orders and in the
January 2024 Proposed Rule.
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In most of these decisions, the EPA concluded that NSR permitting
actions established the relevant ``applicable requirements'' for title
V purposes, and the Agency declined to review the substance of those
applicable requirements in the title V petition context. The EPA
applied this approach to many different types of issues, including the
sufficiency of major NSR permit terms,\107\ the sufficiency of minor
NSR permit terms,\108\ issues related to modeling and the NAAQS,\109\
procedures used to issue NSR permits,\110\ whether major NSR is
applicable,\111\ and other NSR-related issues.\112\ Some of these
orders involved situations in which NSR permits were issued well before
the title V permits being challenged,\113\ while others involved more
contemporaneous NSR and title V permitting decisions.\114\
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\107\ In the Matter of Torrance Refining Company, LLC, Order on
Petition No. IX-2024-13 at 49-60 (January 7, 2025) (Torrance Order);
In the Matter of Nucor Steel Louisiana, LLC, Direct Reduced Iron
Facility, Order on Petition No. VI-2023-17 at 19-20, 21 (September
27, 2024) (Nucor Convent Order); In the Matter of Commonwealth LNG,
LLC, Order on Petition No. VI-2023-7 at 12-14 (January 30, 2024)
(Commonwealth Order); AK Steel Order at 9-13; In the Matter of
Riverview Energy Corp., Order on Petition No. V-2019-10 at 19-29
(March 26, 2020) (Riverview Order); In the Matter of South Louisiana
Methanol, LP, St. James Methanol Plant, Order on Petition Nos. VI-
2016-24 & VI-2017-014 at 8-10 (May 29, 2018) (South Louisiana
Methanol Order); Big River Steel Order at 8-20.
\108\ In the Matter of Delaware City Refining Company, LLC,
Delaware City Refinery, Order on Petition No. III-2022-10 at 26
(July 5, 2023) (Delaware City Refinery Order); Valero Houston Order
at 65-66; In the Matters of Superior Silica Sands & Wisconsin
Proppants, LLC, Order on Petition Nos. V-2016-18 & V-2017-2 at 14-15
(February 26, 2018) (SSS/WP Order); In the Matter of Tennessee
Valley Authority, Gallatin Fossil Plant, Order on Petition Nos. IV-
2016-11 & IV-2017-17 at 19-20 (January 30, 2018) (TVA Gallatin II
Order).
\109\ In the Matter of Arizona Electric Power Cooperative Inc.,
Apache Generating Station, Order on Petition No. X-2024-21 at 22-24
(September 16, 2025) (Apache Order); Nucor Convent Order at 19-20,
22; In the Matter of Salt River Project Agricultural Improvement and
Power District, Coolidge Generating Station, Order on Petition No.
IX-2024-7 at 25, 31 (September 11, 2024) (SRP Coolidge Order);
Commonwealth Order at 12-14; Riverview Order at 19-21; Big River
Steel Order at 8-20.
\110\ Century Aluminum Order at 19-20; AK Steel Order at 9-13.
\111\ In the Matter of Humboldt Redwood Company, LLC, Order on
Petition No. IX-2025-1 at 10-12 (May 5, 2026) (Humboldt Order);
Apache Order at 20; In the Matter of South32 Hermosa Inc., Order on
Petition No. IX-2024-20 at 9-11 (May 30, 2025) (South32 Hermosa
Order); SRP Coolidge Order at 11-14, 22-23; In the Matter of
Intercontinental Terminals Co. LLC, Pasadena Terminal, Order on
Petition No. VI-2024-13 at 21-23, 25-26 (February 7, 2024) (ITC
Pasadena Order); In the Matter of Waelz Sustainable Products, LLC,
Order on Petition No. V-2021-10 at 9-16 (March 14, 2023) (Waelz
Order); In the Matter of Yuhuang Chemical Inc. Methanol Plant, Order
on Petition Nos. VI-2017-5 & VI-2017-13 at 7-8 (April 2, 2018)
(Yuhuang II Order); In the Matter of ExxonMobil Corp., Baytown
Olefins Plant, Order on Petition No. VI-2016-12 at 9-12 (ExxonMobil
Baytown Olefins Order); PacifiCorp-Hunter I Order at 8-20.
\112\ In the Matter of ExxonMobil Corp., Baytown Refinery, Order
on Petition No. VI-2016-14 at 12-13 (ExxonMobil Baytown Refinery
Order); ExxonMobil Baytown Olefins Order at 9-12.
\113\ Torrance Order at 51; ITC Pasadena Order at 21-23;
Delaware City Refinery Order at 16; Valero Houston Order at 65-66;
ExxonMobil Baytown Refinery Order at 12-13, ExxonMobil Baytown
Olefins Order at 9-12; TVA Gallatin II Order at 19-20.
\114\ Humboldt Order at 10-12; Apache Order at 22-24; South32
Hermosa Order at 10-11; Nucor Convent Order at 20; SRP Coolidge
Order at 12-14; Commonwealth Order at 13-14; Waelz Order at 13-15;
Riverview Order at 24-28; South Louisiana Methanol Order at 9;
Yuhuang II Order at 7-8; SSS/WP Order at 14-15; Big River Steel
Order at 8-20.
---------------------------------------------------------------------------
In other orders with materially different factual underpinnings,
the EPA determined that it was appropriate to review certain NSR-
related issues through the title V permitting process. For example, the
EPA substantively engaged with title V petition claims concerning the
sufficiency of monitoring established in NSR permits,\115\ requirements
involving an explicit overlap between NSR and title V,\116\ and other
questions about whether a title V permit assured compliance with the
NSR-related requirements of the SIP for which no underlying NSR permit
was issued \117\ or for which the underlying NSR permit did not involve
public notice and the opportunity for comment.\118\
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\115\ ITC Pasadena Order at 13-14; In the Matter of Gulf Coast
Growth Ventures, LLC, Olefins, Derivative, & Utilities Plant, Order
on Petition No. VI-2021-3 at 17-19 (May 12, 2022) (Gulf Coast Growth
Ventures Order); ExxonMobil Baytown Chemical Order at 20-21; South
Louisiana Methanol Order at 10-11; Yuhuang II Order at 8; see also,
e.g., Big River Steel Order at 17, 17 n.30, 19 n.32, 20; PacifiCorp-
Hunter I Order at 16, 17, 18, 18 n.33, 19.
\116\ In the Matter of Suncor Energy (U.S.A.), Inc., Commerce
City Refinery, Plant 1 (West) & Plant 3 (Asphalt Unit), Order on
Petition No. VIII-2024-18 at 29-30 (December 30, 2024) (Suncor West
II Order); In the Matter of HighPoint Operating Corporation,
Anschutz Equus Farms 4-62-28, Order on Petition No. VIII-2024-6 at
15-16 (July 31, 2004) (HighPoint Order); In the Matter of DCP
Operating Company LP, Platteville Natural Gas Processing Plant,
Order on Petition No. VIII-2023-14 at 15-16 (April 2, 2024) (DCP
Platteville I Order); In the Matter of Suncor Energy (U.S.A.), Inc.,
Commerce City Refinery, Plant 2 (East), Order on Petition Nos. VIII-
2022-13 & VIII-2022-14 at 53-54 (July 31, 2023) (Suncor East Order);
ExxonMobil Baytown Chemical Order at 13-14; In the Matter of Coyote
Station Power Plant, Order on Petition Nos. VIII-2019-1 & VIII-2020-
8 at 12-13 (January 15, 202) (Coyote Station Order).
\117\ Suncor West II Order at 29-30; West Elk Order at 13 n.17;
Suncor East Order at 45-48, 54-55; SRP Agua Fria I Order at 11 n.18;
In the Matter of Salt River Project Agricultural Improvement & Power
District, Desert Basin Generating Station, Order on Petition No. IX-
2022-3 at 12 n.20 (July 28, 2022) (SRP Desert Basin Order); In the
Matter of BP Products North America, Inc., Whiting Business Unit,
Order on Petition No. V-2021-9 at 13 n.24 (March 4, 2022) (BP
Whiting II Order).
\118\ In the Matter of TPC Group LLC, Houston Plant, Order on
Petition Nos. VI-2025-2 & VI-2025-3 at 43 n.243 (May 6, 2026) (TPC
Houston Order); ITC Pasadena Order at 24-25; Coyote Station Order at
12.
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[[Page 61039]]
Two of the EPA's petition orders, the PacifiCorp Hunter I Order and
the ExxonMobil Baytown Olefins Order, were challenged in different
Federal circuit courts of appeal, which issued decisions the same year.
The U.S. Court of Appeals for the Fifth Circuit upheld the ExxonMobil
Baytown Olefins Order.\119\ There, the Fifth Circuit found persuasive
and upheld the ``EPA's view that Title V permitting is not the
appropriate vehicle for reexamining the substantive validity of
underlying Title I preconstruction permits.'' \120\ The Fifth Circuit's
conclusion did not turn on application of Chevron deference and was
instead ``based principally on Title V's text, Title V's structure and
purpose, and the structure of the Act as a whole.'' \121\
---------------------------------------------------------------------------
\119\ Env't Integrity Project v. EPA, 969 F.3d 529 (5th Cir.
2020).
\120\ Id. at 546.
\121\ Id. at 541. The Fifth Circuit stated its conclusion
several ways, as the following examples illustrate: ``Concluding
EPA's interpretation of the Title V program is independently
persuasive and therefore entitled to the mild form of deference
recognized by Skidmore v. Swift & Co., 323 U.S. 134 (1944), we deny
the petition.'' 969 F.3d at 535. ``[W]e find [the EPA's] reasoning
persuasive as a construction of the relevant provisions of Title
V.'' Id. at 540. ``Applying Skidmore, we ask whether EPA's
interpretation of Title V in the Hunter Order is persuasive.
Specifically, we inquire into the persuasiveness of EPA's current
view that the Title V permitting process does not require
substantive reevaluation of the underlying Title I preconstruction
permits applicable to a pollution source. As we read it, the Hunter
Order defends the agency's interpretation based principally on Title
V's text, Title V's structure and purpose, and the structure of the
Act as a whole. Having examined these reasons and found them
persuasive, we conclude that EPA's current approach to Title V
merits Skidmore deference.''
---------------------------------------------------------------------------
The U.S. Court of Appeals for the Tenth Circuit issued a ruling
vacating and remanding the PacifiCorp-Hunter I Order.\122\ Unlike the
Fifth Circuit, the Tenth Circuit did not address the EPA's statutory
interpretation but instead rejected the Agency's reasoning as
inconsistent with the Agency's regulations.\123\ According to the Tenth
Circuit, the EPA's regulations require that title V permits ensure
compliance with all ``applicable requirements,'' which the Tenth
Circuit interpreted to include all requirements in the SIP, including
those related to major NSR.\124\
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\122\ Sierra Club v. EPA, 964 F.3d 882 (10th Cir. 2020).
\123\ Id. at 897.
\124\ Id. at 885-86, 890-91.
---------------------------------------------------------------------------
Because these two courts ruled on different grounds (with the Fifth
Circuit focusing on the statute and the Tenth Circuit focusing on the
EPA's existing regulations), the legal reasoning underlying their
holdings is not in direct conflict. However, in practice, the differing
rulings have made it difficult for the EPA to apply a uniform
interpretation of the Agency's current title V regulations nationwide.
Within the Tenth Circuit's jurisdiction, in the EPA's subsequent
responses to petitions on the PacifiCorp-Hunter permit (PacifiCorp-
Hunter II \125\ and PacifiCorp-Hunter III \126\), the Agency reviewed
whether a source should have obtained a major NSR permit for projects
previously authorized by a minor NSR permit. These reviews were
intended to avoid conflict with the Tenth Circuit's decision on the
PacifiCorp-Hunter I Order.
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\125\ In the Matter of PacifiCorp Energy, Hunter Power Plant,
Order on Petition Nos. VIII-2016-4 & VIII-2020-10 (January 13,
2021).
\126\ In the Matter of PacifiCorp Energy, Hunter Power Plant,
Order on Petition No. VIII-2022-2 (September. 27, 2022).
---------------------------------------------------------------------------
In title V petition orders regarding permits issued by States
outside of the Tenth Circuit, however, the EPA maintained its post-2017
approach. As the EPA explained:
EPA continues to believe that the interpretation of the CAA
upheld by the Fifth Circuit's decision in Environmental Integrity
Project v. EPA, 969 F.3d 529 (5th Cir. 2020), is correct. EPA thus
intends, where supported by the facts of individual permits, to
continue to apply the reasoning of In re Big River Steel, LLC, Order
on Petition No. VI-2013-10 (October 31, 2017), when issuing and
reviewing title V permits and reviewing petitions on permits for
sources in states outside of the Tenth Circuit. That is, where EPA
has approved a state's title I permitting program, duly issued
preconstruction permits establish the NSR-related ``applicable
requirements'' for the purposes of title V. As with ``applicable
requirements'' established through other CAA authorities, the terms
and conditions of those permits should be incorporated into a
source's title V permit without a further round of substantive
review as part of the title V process.\127\
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\127\ PacifiCorp-Hunter III Order at 16 n.29; see also
PacifiCorp-Hunter II Order at 15 n.26.
Thus, when reviewing permits issued by permitting authorities in
States outside the Tenth Circuit's jurisdiction, the EPA continued to
apply the Agency's post-2017 approach and generally declined to use the
title V process to review the substance of NSR permitting decisions. In
the rare situations outside the Tenth Circuit in which the EPA decided
that it was appropriate to use the title V process to review certain
NSR issues, these decisions were not based on the Tenth Circuit's
interpretation of the Agency's regulations, but rather on unusual
factual circumstances that, in the Agency's view at the time, provided
a basis for reviewing such issues under the EPA's post-2017
interpretation of the regulations.\128\
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\128\ TPC Houston Order at 42 n.243; ITC Pasadena Order at 13-
14, 24-25; SRP Agua Fria I Order at 11 n.18; SRP Desert Basin Order
at 12 n.20; Gulf Coast Growth Ventures Order at 17 n.28; ExxonMobil
Baytown Chemical Order at 14 n.27; BP Whiting II Order at 13 n.24;
Coyote Station Order at 12.
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The EPA maintained that the Big River Steel Order and subsequent
title V orders reflect the best interpretation not only of the relevant
statutory provisions, but also of the existing regulations.
Nonetheless, in light of the differing circuit court decisions, the EPA
considers it prudent to update the Agency's regulations to clarify the
Agency's interpretation of the statute. Thus, on January 9, 2024, the
EPA proposed regulatory amendments to the definition of ``applicable
requirements.'' \129\ The proposed regulatory amendments were designed
to allow the EPA to apply a single framework across the Nation by
revising the regulatory language that the Tenth Circuit found to be in
conflict with the Agency's current interpretation. The January 2024
Proposed Rule was also designed to more clearly align the EPA's
regulations with the Agency's statutory interpretation endorsed by the
Fifth Circuit. After considering public comments on the January 2024
Proposed Rule, the EPA is taking final action on the proposed
regulatory text to codify the approach that the Agency has applied
since 2017, which will now apply nationwide.\130\
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\129\ 89 FR 1150 (January 9, 2024).
\130\ Some public commenters on the January 2024 Proposed Rule--
in particular, permitting agencies and regulated entities operating
within the boundaries of the Fifth Circuit's jurisdiction--suggested
that this rulemaking is not necessary. However, as other commenters
recognized, the EPA considers this rulemaking necessary to provide
clarity and uniformity across the Nation.
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B. Summary of the EPA's Approach and Final Action
The EPA is finalizing amendments to the Agency's regulations to
clarify the Agency's approach to the intersection between title I
permitting and title V permitting. In sum: provided that a source
obtains an NSR permit under EPA-approved (or EPA-promulgated) title I
rules, with public notice and the opportunity for comment and judicial
review, such NSR permit establishes all NSR-related ``applicable
requirements'' of the SIP (or FIP) that are applicable to the
construction of the new source or modification authorized by the permit
for purposes of title V. As with ``applicable requirements''
established under other CAA authorities (e.g., NSPS, NESHAP), the EPA
will not
[[Page 61040]]
reevaluate those NSR decisions through the title V process.
The EPA is updating paragraphs (1) and (2) of the definition of
``applicable requirement'' in 40 CFR 70.2 and 71.2. Paragraph (1) of
this definition addresses SIP (and FIP) requirements more generally.
This final rule adds text to paragraph (1) to clarify that, for
purposes of title V, if an NSR permit is issued under an EPA-approved
or EPA-promulgated title I program (i.e., SIP or FIP), with public
notice and the opportunity for comment and judicial review, the terms
and conditions of that preconstruction permit define the NSR-related
applicable requirements of the SIP or FIP that apply to the activities
authorized by such a preconstruction permit.
This rule also adds text to paragraph (2) of the definition of
``applicable requirement'' in 40 CFR 70.2 and 71.2 to clarify that, for
purposes of title V, the relevant terms and conditions of all types of
NSR permits issued under a SIP or FIP, including minor NSR permits, are
applicable requirements that must be included in a title V permit,
regardless of whether the procedures referenced in paragraph (1) are
followed.
In the January 2024 Proposed Rule, the EPA requested comment on any
other changes to the regulatory text that would be necessary to fully
effectuate the Agency's existing and proposed approach. Several
commenters provided helpful suggestions intended to make the EPA's
approach even clearer in the part 70 regulations. In response to some
of those comments, the EPA is finalizing changes to 40 CFR 70.8 and
70.12 to clarify that potential or alleged defects in an applicable
requirement established outside of the title V process do not present a
basis for the EPA's objection to a title V permit. This principle has
been an implicit, and generally well-understood, element of the title V
program throughout the program's existence, and one that was repeatedly
emphasized in the January 2024 Proposed Rule.\131\ Nonetheless, the EPA
agrees with commenters that the Agency's regulations should be updated
to more explicitly clarify this longstanding principle.
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\131\ See, e.g., 89 FR 1150 at 1175 and 1176. See section
III.C.2 of this preamble for further discussion.
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C. Rationale for the EPA's Approach and Final Action
This subsection of the preamble explains the overarching legal and
policy basis for the EPA's approach and addresses comments that either
supported or opposed the Agency's approach. The next subsection of the
preamble (III.D) addresses more specific issues about how this approach
functions in various fact patterns.
As explained in the following subsections, title V of the CAA does
not compel the EPA to use the title V operating permit process to
review the substance of decisions made during the title I (NSR)
preconstruction permitting process. The statute requires that title V
permits assure compliance with ``applicable requirements'' of the CAA,
but the statute does not define this term or expressly provide that
permitting authorities must or may reevaluate NSR permitting decisions.
The best reading of the relevant statutory provisions is that the terms
and conditions of an NSR permit issued under EPA-approved (or EPA-
promulgated) title I rules, with public notice and the opportunity for
comment and judicial review, define the relevant NSR-related applicable
requirements of the SIP (or FIP) for purposes of title V permitting.
The EPA's interpretation is supported by the structure and purpose
of title V. Congress designed title V to consolidate, assure compliance
with, and improve the enforceability of applicable requirements
established under other CAA programs. The title V program was not
intended to create new substantive requirements or modify substantive
requirements added in those other programs (other than to include
supplemental compliance assurance measures, if necessary). Nor was it
intended to create a second round of review for already established
applicable requirements that introduce additional burdens and delays
for permitting authorities and permitted sources. This understanding of
the purpose of title V--both in general and as it relates to the
intersection of title V and NSR permitting--is reflected in the
statute, regulations, legislative history, EPA statements
contemporaneous with the promulgation of the initial title V
regulations, and various Federal court decisions and EPA statements
since that time.
The EPA's interpretation is also consistent with the structure of
the CAA as a whole. The EPA's approach gives weight to the title I
mechanisms that Congress provided to establish the specific NSR-related
requirements of SIPs, as well as the title I and title III procedures
for evaluating, challenging, and enforcing title I permitting
requirements. It also respects the system of cooperative federalism
reflected in the NSR and title V permitting programs.
The EPA's approach also reflects better policy than alternative
approaches because it ensures that applicable requirements established
in different CAA programs are treated consistently in title V
permitting, accounts for the limitations associated with title V
oversight tools, emphasizes title I avenues of review, and respects the
finality of, and fosters certainty in, title I permitting decisions.
1. Best Reading of the Statutory Text
The text of title V alone does not conclusively define the scope of
issues subject to review (or re-review) during the title V permitting
process. In relevant part, CAA section 504(a) requires that title V
permits ``include enforceable emissions limitations and standards . . .
and such other conditions as are necessary to assure compliance with
applicable requirements of this chapter [i.e., the CAA], including the
requirements of the applicable implementation plan [i.e., the SIP or
FIP].'' \132\ Similarly, CAA section 505(b) requires that if the EPA
determines that a title V permit is ``not in compliance with the
applicable requirements of this chapter, including the requirements of
an applicable implementation plan,'' the EPA must object to the permit,
and if the EPA does not, any person may petition the EPA to do so.\133\
Similar references to ``applicable requirements'' and ``requirements of
the applicable implementation plan'' appear in other parts of title
V.\134\
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\132\ 42 U.S.C. 7661c(a).
\133\ 42 U.S.C. 7661d(b)(1)-(2).
\134\ For example: ``The term `schedule of compliance' means a
schedule of remedial measures, including an enforceable sequence of
actions or operations, leading to compliance with an applicable
implementation plan, emission standard, emission limitation, or
emission prohibition.'' 42 U.S.C. 7661(3). ``Nothing in this
subsection shall be construed to alter the applicable requirements
of this chapter that a permit be obtained before construction or
modification.'' 42 U.S.C. 7661a(a). The regulations to implement the
program shall include a ``requirement that the applicant submit with
the application a compliance plan describing how the source will
comply with all applicable requirements under this chapter.'' 42
U.S.C. 7661b(b). Like CAA section 504, these sections do not specify
the scope of the term ``applicable requirements'' or how the
permitting authority or the EPA is to determine what the applicable
requirements are for an individual source as part of its title V
permit.
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However, the term ``applicable requirements'' is not defined in the
CAA, and the statute does not otherwise specify the role of the title V
permitting process in determining the applicable requirements of the
CAA or the requirements of an applicable implementation plan for a
particular source or construction activity. Instead,
[[Page 61041]]
Congress delegated to the EPA the discretion to fill in these details
consistent with the text of the relevant provisions and the structure
of the statute as a whole.
Specifically, CAA section 502(b) instructs the Administrator to
promulgate regulations ``establishing the minimum elements of a permit
program to be administered by any air pollution control agency,''
including a requirement at CAA section 502(b)(5)(A) that the permitting
authority have adequate authority to ``issue permits and assure
compliance by all sources required to have a permit under this
subchapter with each applicable standard, regulation or requirement
under this chapter.'' \135\ Under CAA section 505(b)(2), which governs
objections by the EPA and petitions to the Administrator, also
instructs the Administrator to promulgate regulations that implement
the petition provisions within that paragraph.\136\ This includes the
requirement that the Administrator object if a petitioner demonstrates
that a permit is not in compliance with ``the requirements of this
chapter, including the applicable implementation plan.'' \137\
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\135\ 42 U.S.C. 7661a(b)(5)(A).
\136\ 42 U.S.C. 7661d(b)(2).
\137\ Id.
---------------------------------------------------------------------------
Given the instruction from Congress for the EPA to promulgate
regulations about the title V permit program and the title V petition
process, the EPA finds it necessary and appropriate to ``fill up the
details'' of title V of the CAA through regulations,\138\ including
determining what constitutes ``applicable requirements'' and ``the
requirements of the applicable implementation plan.'' As detailed
below, these regulations represent the best reading of the relevant
provisions and the structure of the statute. The EPA is exercising
discretion to codify the best reading of the statute in the regulations
to promote clarity, national consistency, and understanding on the part
of the public and the regulated community.
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\138\ Loper Bright Enters. v. Raimondo, 603 U.S. 369, 395 (2024)
(quoting Wayman v. Southard, 10 Wheat. 1, 43 (1825)).
---------------------------------------------------------------------------
With respect to title I preconstruction permits, the statutory
terms ``applicable requirements'' and ``requirements of the applicable
implementation plan'' are particularly ambiguous and require further
interpretation. As explained in section III.C.3.a of this preamble,
during the preconstruction permitting process, permitting authorities
determine which NSR requirements in the SIP (or FIP) are applicable
(e.g., major NSR or minor NSR requirements) to new or modified sources,
and derive the specific permit conditions (e.g., emission limitations
and other standards) applicable to a given source or modification based
on the general direction in the SIP. In many situations, the public has
the opportunity to provide comments on draft permits and to seek review
in State court. At the end of this NSR permitting process, the NSR
permit terms reflect the NSR-related requirements of the SIP (or FIP)
applicable to the new or modified source.
The key inquiry is whether the title V permitting process should or
may be used to double-check--and re-check during every subsequent title
V renewal permit--the substantive adequacy of applicable requirements
established through NSR permitting decisions. In other words, the
question is whether title V should or may be used to assess whether the
requirements embodied in an NSR permit were properly derived from the
general, overarching SIP (or FIP) provisions governing NSR.
Title V of the CAA contains no language expressly mandating such a
reevaluation through title V. Notably, the Fifth Circuit found the
CAA's silence on this topic a persuasive reason for upholding the EPA's
statutory interpretation that is the basis for this rule.\139\ The
statute's silence on this topic stands in contrast to the presence of
more specific statutory mandates, such as the requirement that title V
permits be used to add compliance assurance measures like monitoring,
recordkeeping, and reporting requirements.\140\
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\139\ Env't Integrity Project, 969 F.3d at 541-42. Specifically,
the court stated the following: ``We find persuasive EPA's position
that Title V lacks a specific textual mandate requiring the agency
to revisit the Title I adequacy of preconstruction permits. Our own
review of Title V confirms that it contains no such explicit
requirement, nor any language guiding the agency on how to perform a
review of that nature. The principle that a matter not covered is
not covered is so obvious that it seems absurd to recite it. A
number of cases have identified the casus omissus pro omisso
habendus est canon, under which a statute should not be read to
include matter it does not include. Here, Title V does not tell EPA
to reconsider [NSR] in the course of Title V permitting. We reject
Petitioners' position because there is a basic difference between
filling a gap left by Congress' silence and rewriting rules that
Congress has affirmatively and specifically enacted.'' Id. at 541-42
(cleaned up) (citing Lamie v. U.S. Tr., 540 U.S. 526, 538 (2004);
Iselin v. United States, 270 U.S. 245, 251 (1926); Yates v. Collier,
868 F.3d 354, 369 (5th Cir. 2017); In re Miller, 570 F.3d 633, 638-
39 (5th Cir. 2009)).
\140\ 42 U.S.C. 7661c(c); see 40 CFR 70.6(c)(1); Sierra Club v.
EPA, 536 F.3d at 680.
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Moreover, the CAA's references to ``applicable requirements'' and
``the requirements of the applicable implementation plan'' do not
compel such a reevaluation notwithstanding the text and structure of
the title I NSR provisions. Notably, the Fifth Circuit rejected the
notion that the general term ``applicable requirements'' should be
construed as ``broad and sweeping,'' or that this term should be read
to mandate using title V to review whether requirements in an NSR
permit accurately reflect the requirements of a SIP.\141\
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\141\ See Env't Integrity Project, 969 F.3d at 543
(``[Petitioners] would effectively rewrite the clause to read: `a de
novo reconsideration of the source's preconstruction permitting.'
Surely, Congress would not have hidden that regulatory elephant in
this residual mousehole.'').
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In this action, the EPA is adopting the best reading of the
statutory terms ``applicable requirements'' and ``requirements of the
applicable implementation plan'' in CAA sections 504(a) and 505(b) in
the context of title I NSR permits issued under a SIP or FIP.\142\ The
best reading is that the terms and conditions of an NSR permit issued
under EPA-approved (or EPA-promulgated) title I rules, with public
notice and the opportunity for comment and judicial review, define the
relevant set of ``applicable requirements'' of the SIP or FIP for
purposes of title V permitting. That is, the ``requirements of an
applicable implementation plan'' relevant to a particular construction
project are the requirements that the permitting authority determined
to be applicable during the NSR permitting process, as reflected in the
terms of such an NSR permit. The EPA also considers this interpretation
to be the best reading of the statutory text in light of the structure
and purpose of title V, the legislative history of title V, the
structure of the CAA as a whole, and other policy reasons derived from
the purposes of the statute generally and title V specifically, as
explained in the following subsections of this preamble.
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\142\ See Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024).
As discussed in the January 2024 Proposed Rule, the EPA considers
the Agency's longstanding prior regulations to be consistent with
this statutory interpretation. However, in light of the Tenth
Circuit's ruling (which held that the EPA's prior regulatory
definition of ``applicable requirement'' precluded the Agency's
approach in a particular situation), the EPA is amending the
Agency's regulations to more clearly reflect the Agency's statutory
interpretation. For further discussion of the EPA's interpretation
of the Agency's prior regulations, see Big River Steel Order at 9-
11.
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Public comments from permitting authorities and regulated entities
generally agreed that the EPA's interpretation reflects the best
reading of the relevant statutory text, and these commenters supported
or echoed EPA's views regarding the structure and purpose of title V,
the legislative history of title V, the structure of the CAA as a
whole, and other policy reasons
[[Page 61042]]
discussed in the following sections of this preamble.\143\ Public
comments from environmental and public interest groups generally
opposed--but did not specifically rebut--the EPA's overall statutory
interpretation.\144\
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\143\ See section 3.1 of the RTC. To the extent comments from
permitting authorities and regulated entities opposed the EPA's
statutory interpretation, such opposition was generally limited to a
particular element of this interpretation: that an NSR permit must
undergo public notice and the opportunity for comment and judicial
review before it could be said to conclusively establish the
``applicable requirements'' of the SIP for purposes of title V. That
specific topic is discussed further in section III.D.5 of this
preamble and section 3.5.7 of the RTC.
\144\ To the extent adverse public comments raised specific
arguments or rebuttals regarding the relevant statutory text, nearly
all of those arguments were related to a specific type of question
(as opposed to the EPA's overarching framework): should title V be
used to review questions about whether major NSR requirements should
be applicable to a particular construction activity at a stationary
source? That specific topic is discussed further is section
III.D.3.b of this preamble and section 3.5.2 of the RTC.
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2. Structure and Purpose of Title V
The EPA's interpretation of ``applicable requirements'' in the
context of title V and NSR permitting is supported by the structure and
purpose of the title V program--namely to consolidate, assure
compliance with, and improve the enforceability of applicable
requirements established under other CAA programs. The title V program
was not intended to establish new substantive requirements or modify
substantive requirements created in other programs (other than to
include supplemental compliance assurance measures, when necessary),
nor was it intended to add the further burdens and delays associated
with a re-review of already established applicable requirements. This
purpose is reflected in the statute, regulations, legislative history
associated with Congress's enactment of title V, EPA statements
contemporaneous with the promulgation of the initial title V
regulations, and various Federal court decisions and EPA statements
since that time.
As introduced in section III.B of this preamble, a core purpose and
function of title V is to identify, consolidate, and assure compliance
with the requirements applicable to individual sources from other, more
substantive CAA programs. This function is embodied primarily within
CAA section 504 and 40 CFR 70.6(a) and (c), which generally require
that title V permits include conditions that assure an individual
source's compliance with all CAA applicable requirements.
When Congress enacted title V in 1990, it explained this purpose as
follows:
The first benefit of the title V permit program is that . . . it
will clarify and make more readily enforceable a source's pollution
control requirements. Currently, in many cases, the source's
pollution control obligations . . . are scattered throughout
numerous, often hard-to-find provisions of the SIP or other Federal
regulations. . . . The air permit program will ensure that all of a
source's obligations . . . will be contained in one permit
document.\145\
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\145\ S. Rep. No. 101-228 at 347 (December 20, 1989), reprinted
in 5 Legislative History of the Clean Air Act Amendments of 1990
(CAA Legislative History) at 8687 (1998). Other portions of the
history of this legislation describe the purpose of title V in
similar terms. See, e.g., Conf. Rep. on S. 1630, Speech of Rep.
Michael Bilirakis (October 26, 1990), 6 CAA Legislative History at
10768 (1998).
In addition to identifying and consolidating existing requirements
applicable to a source, CAA section 504 provides the authority to use
title V permits to establish additional requirements relating to
compliance assurance. For example, title V permits may be used to
create or supplement monitoring requirements when necessary to assure
an individual source's compliance with underlying applicable
requirements that do not themselves contain sufficient monitoring
provisions.\146\ Where Congress intended title V to serve as a vehicle
for the reevaluation of existing requirements or for imposing new
requirements, it expressly said so.
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\146\ See 42 U.S.C. 7661c(c); 40 CFR 70.6(c)(1); Sierra Club v.
EPA, 536 F.3d 673, 674-45, 680 (D.C. Cir. 2008) (``Title V did more
than require the compilation in a single document of existing
applicable emission limits and monitoring requirements. It also
mandated that `[e]ach permit issued under [Title V] shall set forth
. . . monitoring . . . requirements to assure compliance with the
permit terms and conditions.' . . . [T]he Act requires: a permitting
authority may supplement an inadequate monitoring requirement so
that the requirement will `assure compliance with the permit terms
and conditions.' '' (citations omitted)); see also, e.g., In the
Matter of CITGO Refining and Chemicals Co., L.P., West Plant, Order
on Petition No. VI-2007-01 at 6-8 (May 28, 2009). This additional
purpose is similarly reflected in the legislative history. See,
e.g., S. Rep. No. 101-228 at 347, 5 CAA Legislative History at 8687.
Various compliance assurance requirements are included within title
V and the EPA's implementing regulations; not all are restricted to
monitoring. See 42 U.S.C. 7661c(a), (b), (c); 40 CFR 70.6(a)(1),
(a)(3), (c), 71.6(a)(1), (a)(3), (c); see also, e.g., In the Matter
of Suncor Energy (U.S.A.), Inc., Commerce City Refinery, Plant 2
(East), Order on Petition Nos. VIII-2022-13 & VIII-2022-14 at 13-17
(July 31, 2023).
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Beyond title V's consolidation and compliance assurance functions,
title V generally does not impose new pollution control requirements on
sources or provide a vehicle to modify such requirements established
under other CAA programs. As stated in the congressional record:
The permit provisions of title V provide a focus for this
harmonization [of other titles of the CAA], although title V does
not change, and gives EPA no authority to modify, the substantive
provisions of these other titles. . . . Title V creates no new
substantive emission control requirements. Nothing in the permitting
title should be read to increase the stringency of any control
requirement nor to delay or accelerate the effectiveness of such
requirements, except as expressly provided in titles I, III, and
IV.\147\
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\147\ Conf. Rep. on S. 1630, Speech of Rep. Michael Bilirakis
(October 26, 1990), 6 CAA Legislative History at 10768 (1998)
(emphasis added).
Recognizing the core functions of the title V program, the EPA's
regulations have provided since 1992: ``All sources subject to these
regulations shall have a permit to operate that assures compliance by
the source with all applicable requirements. While title V does not
impose substantive new requirements, it does require that fees be
imposed on sources and that certain procedural measures be adopted
especially with respect to compliance.'' \148\ These principles are
further explained in EPA statements contemporaneous with the initial
1992 title V regulations,\149\ subsequent rulemakings,\150\ and in
numerous orders
[[Page 61043]]
responding to petitions challenging individual title V permits.\151\
Likewise, Federal courts across the Nation have acknowledged and
reiterated these general principles.\152\
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\148\ 40 CFR 70.1(b) (emphasis added).
\149\ See 57 FR at 32251(July 21, 1992) (``While title V
generally does not impose substantive new requirements, it does
require that . . . certain procedural measures be followed,
especially with respect to determining compliance with underlying
applicable requirements. The program will generally clarify, in a
single document, which requirements apply to a source and, thus,
should enhance compliance with the requirements of the Act. . . .
The title V permit program will enable the source, States, EPA, and
the public to understand better the requirements to which the source
is subject, and whether the source is meeting those requirements.
Increased source accountability and better enforcement should
result.''); id. at 32284 (``As discussed above, title V is primarily
procedural and is not generally intended to create any new
substantive requirements. . . . The title V permit is intended to
record in a single document the substantive requirements derived
from elsewhere in the Act. Therefore, in most cases the only
emissions limits contained in the permit will be emissions limits
that are imposed to comply with the substantive requirements of the
Act (including SIP requirements).'').
\150\ See 81 FR 57822, 57826-27 (August 24, 2016) (``For the
most part, title V of the CAA does not impose new pollution control
requirements on sources. The definition of `applicable requirements'
in the part 70 regulations includes many standards and requirements
that are established through other CAA programs, such as standards
and requirements under sections 111 and 112 of the Act, and terms
and conditions of preconstruction permits issued under the New
Source Review programs. 40 CFR 70.2. Once those air quality control
requirements are established in those other programs, they are
incorporated into a source's title V permits as appropriate. . . .
[I]n providing an opportunity for harmonization through title V of
the CAA, Congress did not replace or remove the procedures and
requirements for establishing substantive requirements that exist in
other provisions of the CAA.'').
\151\ Hundreds of EPA petition orders include background
discussion reiterating this core function of title V. Electronic
copies of these orders are available on the EPA's public database,
<a href="https://www.epa.gov/title-v-operating-permits/title-v-petition-database">https://www.epa.gov/title-v-operating-permits/title-v-petition-database</a>. To the extent individual petition orders contain
particularly relevant discussion, they are discussed elsewhere in
this preamble.
\152\ See, e.g., Utility Air Reg. Grp. v. EPA, 573 U.S. 302, 309
(2014) (``Unlike the PSD program, Title V generally does not impose
any substantive pollution-control requirements.''); Env't Integrity
Project, 969 F.3d at 250 (``By all accounts, Title V's purpose was
to simplify and streamline sources' compliance with the Act's
substantive requirements. Rather than subject sources to new
substantive requirements--or new methods of reviewing old
requirements--the intent of Title V was to consolidate into a single
document (the operating permit) all of the clean air requirements
applicable to a particular source of air pollution.'' (cleaned up));
id. at 244; see also, e.g., U.S. Sugar Corp. v. EPA, 830 F.3d 579,
597 (D.C. Cir. 2016); US v. EME Homer City Generation, LP, 727 F.3d
274, 280 (3rd Cir. 2013); Sierra Club v. Johnson, 541 F.3d 1257,
1260 (11th Cir. 2008); Sierra Club v. Leavitt, 368 F.3d 1300, 1302
(11th Cir. 2004); Appalachian Power Co. v. EPA, 208 F.3d 1015, 1026-
27 (D.C. Cir. 2000).
---------------------------------------------------------------------------
Not only were these general principles well-established at the
inception of the title V program, both Congress and the EPA
specifically spoke to the manner in which these general principles
would guide the interaction between title V and title I permitting
programs. For example, a Senate report accompanying title V explained:
New and modified major sources are already required to obtain
construction permits under the [NSR] and [PSD] provisions of the
current Act. EPA should avoid imposing additional construction
permit requirements under title V. Thus, construction permits may
continue to be issued under the existing provisions of the Act, but
title V will apply with respect to existing source requirements not
otherwise required in the construction permit, e.g., fees.\153\
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\153\ S. Rep. No. 101-228 at 349, 5 CAA Legislative History at
8689 (emphasis added). Similarly, one lawmaker involved in the
statute's enactment explained: ``In the past, some provisions of the
Clean Air Act--for example, the nonattainment and PSD new source
requirements--were, and will continue to be, implemented through
preconstruction permits.'' Conf. Rep. on S. 1630, Speech of Rep.
Michael Bilirakis (October 26, 1990), 6 CAA Legislative History at
10768 (1998) (emphasis added).
Thus, the legislative history articulates Congress's intent that,
notwithstanding the enactment of title V, NSR permits would continue to
be issued as they had for over a decade. Title V permits would be used
to incorporate the requirements of NSR permits, but not to alter or
impose additional NSR-related requirements.
As previously noted, in the 1991 and 1992 preambles to the EPA's
initial title V rules, the Agency announced a similar understanding of
the intersection of title V and title I permitting. The EPA did not
express an intent to use the title V permitting process to review the
applicable requirements established in preconstruction permitting
programs under title I of the CAA. To the contrary, the EPA stated:
``Any requirements established during the preconstruction review
process also apply to the source for purposes of implementing title V.
If the source meets the limits in its NSR permit, the title V operating
permit would incorporate these limits without further review.'' \154\
Similarly, the EPA explained: ``The intent of title V is not to second-
guess the results of any State NSR program.'' \155\ Further,
``[d]ecisions made under the NSR and/or PSD programs (e.g., [BACT])
define applicable SIP requirements for the title V source and, if they
are not otherwise changed, can be incorporated without further review
into the operating permit for the source. The title V program is not
intended to interfere in any way with the expeditious processing of new
source permits.'' \156\
---------------------------------------------------------------------------
\154\ 56 FR 21712, 21738-39 (May 10, 1991) (emphasis added).
\155\ Id. at 21739 (emphasis added).
\156\ Id. at 21721 (emphasis added); see 57 FR at 32259 (July
21, 1992) (similar statements in the preamble to the EPA's 1992
final rule).
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The EPA's contemporaneous interpretation of the statute (and the
regulations implementing this statute) should be afforded great weight,
as the Fifth Circuit acknowledged.\157\ Although the EPA departed from
this interpretation, in part, from 1997-2017, the EPA's return to this
interpretation reflects a better reading of the statute and
congressional intent.\158\ As the Fifth Circuit stated: ``We find
persuasive EPA's view that, because Title V was not intended to add new
substantive requirements to the Act, it should not be interpreted as
Petitioners urge. . . . This goal, as EPA argues, is at cross-purposes
with using the Title V process to reevaluate preconstruction permits.''
\159\
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\157\ Env't Integrity Project, 969 F.3d at 544 (``We also agree
with EPA that the language in part 70's preamble is probative of
Title V's purpose as a whole.'') An agency's contemporaneous
interpretation is often given great weight in understanding the
meaning of a statute. See e.g., Good Samaritan Hosp. v. Shalala, 508
U.S. 402, 414 (1993) (``Of particular relevance is the agency's
contemporaneous construction which `we have allowed . . . to carry
the day against doubts that might exist from a reading of the bare
words of a statute.' '' (quoting FHA v. The Darlington, Inc., 358
U.S. 84, 90 (1958))).
\158\ See Env't Integrity Project, 969 F.3d at 544 (``We
recognize that EPA has reverted to its original interpretation of
Sec. 70.2, reflecting its changing views of Title V. We take the
agency's change of position into account in determining whether to
defer to its position. But even when `the agency has embraced a
variety of approaches' we may still defer to its present position,
`especially' when the current view `closely fits the design of the
statute as a whole.' '' (quoting Shahala, 508 U.S. at 417-18;
additional citation omitted)).
\159\ Env't Integrity Project, 969 F.3d at 543-44.
---------------------------------------------------------------------------
Several public comments from environmental and other interest
groups challenged this view. These commenters argued that using title V
to substantively review NSR permitting decisions is not the same thing
as establishing new substantive requirements because the substantive
requirements related to NSR already exist in the SIP.\160\ The EPA
disagrees. As explained in section III.C.3.a of this preamble, NSR-
related requirements of the SIP may be relatively general and require
an additional step--the title I permitting process--to define on a
case-by-case basis the nature of the requirement for individual sources
engaged in construction projects. Thus, while general requirements
exist in the SIP to obtain NSR permits that meet certain criteria, the
specific requirements that are applicable to a particular source
engaged in construction activity exist in conditions in the individual
title I NSR permits, which are determined on a case-by-case basis. If
title V permits were used to reevaluate substantive title I permitting
decisions, the result of such an exercise--at least the result
apparently desired by adverse commenters--could be a conclusion that
different conditions are necessary to assure compliance with the SIP.
To effectuate this conclusion, changes would have to be made to the
requirements established through the title I permitting process.
Changing the nature of an applicable requirement is functionally the
same as creating a new applicable requirement and is, therefore,
inconsistent with Congress's design for title V.
---------------------------------------------------------------------------
\160\ See section 3.5.2 of the RTC.
---------------------------------------------------------------------------
Other statutory provisions within title V further support the EPA's
interpretation. Title V requires State programs to have ``[a]dequate,
streamlined, and reasonable procedures . . . for expeditious review of
permit actions . . . .'' \161\ Requiring a permitting authority, or the
EPA, to go back and review final permitting decisions that have already
been subject to the safeguards of public notice and judicial review
would frustrate the goal
[[Page 61044]]
of ``expeditious review of permit actions.'' \162\
---------------------------------------------------------------------------
\161\ 42 U.S.C. 7661a(b)(6).
\162\ Id.
---------------------------------------------------------------------------
Similarly, Congress provided abbreviated timeframes for the EPA to
review a proposed title V permit: 45 days for the EPA's independent
review and 60 days if presented with a petition to object.\163\ Based
on ``the abbreviated timeline Congress gave EPA,'' the Fifth Circuit in
Env't Integrity Project concluded ``that these timelines are
inconsistent with an in-depth and searching review of every permitting
decision regarding a given source.'' \164\ This point is compounded by
the fact that title V permits must be renewed every five years.\165\ As
the Fifth Circuit stated, ``the fact that Title V permits must be
renewed every 5 years tends to support the agency's view that Title V
was not intended to serve as a vehicle for reexamining the underlying
substance of preconstruction permits. Subjecting a source's
preconstruction permit to periodic new scrutiny, without any changes to
the source's pollution output, would be inconsistent with Title V's
goal of giving sources more security in their ability to comply with
the Act.'' \166\
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\163\ 42 U.S.C. 7661d(b); see 40 CFR 70.8(c), (d).
\164\ Env't Integrity Project, 969 F.3d at 544; see also id. at
545-46 (``Title I [includes] more detailed procedures for in-depth
oversight of case-specific permitting decisions. Such permitting
decisions follow state appeals or enforcement actions authorized by
other provisions of the Act, including citizen suits under Title
III. Those mechanisms are better structured to provide agency and
citizen oversight of preconstruction permitting. . . . Title V
contains none of the procedures that would guide those challenges,
as Titles I and III do. . . . And those avenues provide more time
for development and consideration of the potential issues.''
(internal citations and quotations omitted)).
\165\ 42 U.S.C. 7661a(b)(5)(B), (b)(6); see, e.g., 40 CFR
70.6(a)(2).
\166\ Env't Integrity Project, 969 F.3d at 544-45.
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In summary, neither the structure of title V nor the congressional
record indicates that Congress intended the EPA to reevaluate and
rewrite substantive title I preconstruction requirements through the
title V process. Title V was enacted largely to identify and
consolidate the variety of requirements applicable to each facility and
assure compliance with these requirements through provisions like
monitoring, recordkeeping, and reporting. Reexamining title I permits
through title V would not help address either of these objectives.
Moreover, congressional intent for efficiency would be undermined if
permitting authorities were required to second-guess complex decisions
reflected in State-issued title I permits during title V review and
then re-check these decisions during each subsequent title V
renewal.\167\ Such a review would also be generally incompatible with
the limited timeframes that Congress provided for the EPA's review of
title V permits. These considerations related to the structure and
purpose of title V align with the EPA's interpretations of the statute
from the early 1990s, as well as the opinions of Federal courts.
---------------------------------------------------------------------------
\167\ 42 U.S.C. 7661a(b)(6).
---------------------------------------------------------------------------
All indications of congressional intent suggest that the EPA's role
in oversight over the issuance of title V permits should be limited. In
the case of preconstruction permitting requirements derived from title
I of the CAA, the purpose of title V is to ensure that the terms and
conditions of the preconstruction permit are properly included as
``applicable requirements'' and that the permit contains monitoring,
recordkeeping, and reporting sufficient to assure compliance with those
permit terms and conditions.\168\
---------------------------------------------------------------------------
\168\ 42 U.S.C. 7661c(a), (c); see 40 CFR 70.6(a)(1) and (3),
and (c)(1).
---------------------------------------------------------------------------
Adverse public comments emphasized other purposes of the title V
program: to serve as a comprehensive document that clarifies all CAA
requirements to which a source is subject, and to promote compliance
and enforcement of such requirements. The EPA agrees that these are
important functions of title V permits. The EPA's approach in this
final rule integrates all of these key features of the title V program.
Title V permits must collect all CAA-based requirements that are
applicable to a source and include conditions sufficient to assure
compliance with those requirements. But that does not mean that title V
permits should be used to reevaluate substantive decisions underlying
the establishment of the applicable requirements themselves.
3. Structure of the CAA as a Whole
The EPA's interpretation of ``applicable requirements'' as that
term relates to the interface of title I and title V permits is
supported by the structure of the CAA as a whole.\169\ Specifically,
the EPA's interpretation is consistent with the title I permitting
mechanisms that Congress provided to establish and define the NSR-
related requirements of SIPs; the title I and title III procedures for
evaluating, challenging, and enforcing title I permitting requirements;
and the overarching system of cooperative federalism reflected in the
NSR and title V permitting programs.
---------------------------------------------------------------------------
\169\ See Utility Air Reg. Grp., 573 U.S. at 320 (acknowledging
the ``fundamental canon of statutory construction that the words of
a statute must be read in their context and with a view to their
place in the overall statutory scheme'' (internal citations and
quotation marks omitted)).
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a. Implementation of SIP Requirements Through Title I NSR Permits
States must submit SIPs containing NSR permitting programs to the
EPA for approval through a rulemaking process.\170\ States then
determine and define the specific NSR-related requirements of SIPs that
apply to individual construction projects by issuing NSR permits to
individual facilities. This two-step process under title I is central
to the EPA's interpretation of the statutory term ``applicable
requirements'' as it relates to the interface between title I and title
V permits. It also differentiates NSR-based applicable requirements
from other types of applicable requirements as discussed in section II
of this preamble.
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\170\ 42 U.S.C. 7410(a)(2)(C). This section of the preamble
primarily discusses the issuance of NSR permits under an EPA-
approved SIP. Similar principles apply to the issuance of NSR
permits under an EPA-promulgated FIP.
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The portions of a SIP addressing NSR are general in nature. SIPs
require new and modified sources to obtain certain permits before
beginning construction, specify thresholds and other methods to
determine what type of permit a source must obtain, identify other
preconditions to obtaining a permit (including requirements related to
the NAAQS), and establish guidelines for setting specific limitations
and other conditions that must be included in a permit. Because the
NSR-related provisions within a SIP are necessarily general, they are
not self-implementing, and further fact-specific analysis is required
to develop the specific requirements applicable to a particular new or
modified source.
The key question is whether title V is the appropriate mechanism to
establish (or reevaluate) the specific NSR-related SIP requirements
that are applicable to construction activities at a particular source.
As noted earlier in this preamble, title V of the CAA does not mandate
this outcome, and the structure of title I elucidates that this was not
Congress's intent or the best reading of the statute.
Congress required in title I that SIPs regulate construction and,
for major sources and modifications, require preconstruction
permits.\171\ The title I preconstruction programs approved by the EPA
into SIPs rely on preconstruction permitting programs to fulfill these
statutory directives for both
[[Page 61045]]
major and minor NSR.\172\ It thus follows that the title I
preconstruction requirements for individual sources are established
under these permitting programs in the SIP, not through title V. The
SIPs identify the title I permitting process as the mechanism by which
the more general SIP requirements applicable to construction of
stationary sources will be defined for each new or modified source.
During that title I permitting process, a permitting authority
determines which NSR-related requirements of the SIP are applicable and
designs specific permit terms and conditions to satisfy these more
general SIP requirements. In many situations, this process also
includes the opportunity for interested parties to evaluate and
challenge the State's decisions. Overall, the process is designed to
result in an NSR permit that contains all terms and conditions
necessary to satisfy the NSR-related requirements of the SIP. Thus, it
is the title I permitting process--not the general requirements within
the SIP itself--that defines the ``applicable requirements'' of the CAA
related to NSR, at least insofar as title V is concerned.
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\171\ See 42 U.S.C. 7410(a)(2)(C), 7475(a)(1), 7502(c)(5).
\172\ Adverse comments from environmental and public interest
groups on the January 2024 Proposed Rule generally did not engage
with the EPA's discussion of the structure of the CAA as a whole,
including the mechanisms by which title I preconstruction
requirements are established. However, as discussed further in
section III.D.3.b of this preamble, some adverse commenters focused
on the fact that Congress did not specifically require that the
minor NSR program be implemented through permitting. That
distinction is not particularly relevant because nearly all SIPs
implement the statutory requirements governing minor NSR through
title I permitting programs, which generally resemble major NSR
permitting programs. To the extent that minor NSR requirements are
not implemented through permitting in a particular instance, the
EPA's approach recognizes this distinction. As discussed in section
II.D.5 of this preamble, if a source does not obtain a title I
permit to authorize construction, there would be no permit to
establish the ``applicable requirements'' for title V purposes, and
the EPA would review whether the title V permit assures compliance
with any relevant NSR-related requirements of the SIP.
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In summary, the NSR requirements of a SIP are not self-
implementing, but they also do not depend on the title V process to be
defined. Instead, the applicable NSR-related requirements of SIPs are
established through a dedicated title I-based permitting process that
typically includes its own public participation opportunities and EPA
oversight authority.
The CAA requires that title V permits assure compliance with
``requirements of an applicable [SIP].'' But the CAA does not specify
that title V be used to re-create or reevaluate the requirements of the
SIP that were already defined through the specific mechanism Congress
designed to define them: the NSR permitting process. Again, the purpose
of title V is not to create or alter the substantive requirements from
other parts of the CAA, but instead to identify, consolidate, and
assure compliance with those requirements established in these other
programs that apply to each individual source.
b. Oversight of Title I Programs and Permitting Decisions
The many programmatic and case-specific oversight tools contained
within title I demonstrate that it is not necessary or appropriate, and
Congress did not intend, to use additional title V permit oversight
tools to second-guess the results of title I permitting decisions.\173\
Title I provides opportunities for programmatic oversight, oversight of
individual permitting decisions, and oversight through enforcement.
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\173\ As stated in section III.E.1 of this preamble, the EPA's
view that reevaluation of NSR permits is not appropriate in the
title V permitting context does not mean that the EPA agrees that
the State reached the proper decision when setting terms and
conditions of any particular NSR permit and does not diminish the
opportunities to review NSR preconstruction permitting decisions
under title I of the CAA. See Env't Integrity Project, 969 F.3d at
545-56.
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Through the review of SIP submissions, the EPA ensures that States
have programs in place that provide the authority to issue
substantively sound preconstruction permits, while respecting
Congress's intended role for the States. Congress gave the EPA
authority under title I to disapprove any proposed SIPs that are
inconsistent with Federal statutory and regulatory authorities
governing NSR.\174\ For example, if a State submits a proposed SIP
containing rules to calculate major source emissions thresholds, and
those rules are inconsistent with the CAA or its implementing
regulations, the EPA cannot approve the SIP. If the State's program
fails to meet statutory or regulatory requirements related to NSR, the
EPA can call for a revision of the SIP.\175\ Further, if a State fails
to properly implement its NSR program, the EPA can take additional
actions, including orders, administrative penalties, and civil
actions.\176\ The availability of these title I-based authorities
obviates the need to use title V-based oversight tools to address
programmatic issues associated with State NSR programs.
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\174\ 42 U.S.C. 7410(k)(3).
\175\ 42 U.S.C. 7410(k)(5).
\176\ 42 U.S.C. 7413(a)(2), (a)(5).
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In terms of reviewing individual title I permits, each SIP must
provide for public notice and an opportunity for comment on major NSR
permits, and this may also be required for other types of permits under
preconstruction permit programs.\177\ The EPA may provide feedback on
State-issued NSR permits through this process.\178\ Thus, both
interested parties and the EPA can seek to correct potential errors in
proposed preconstruction permits, including threshold determinations
about whether a source or modification is minor or major, and can
challenge the content of permit terms. Should a State permitting
authority fail to address legitimate comments, the commenters can seek
review of preconstruction permits in State administrative and judicial
forums, and the EPA has additional oversight authority under the
CAA.\179\ The availability of these title I permitting-based avenues
for review and oversight of individual title I permitting decisions
obviates the need to use title V-based oversight tools to address the
same issues with respect to individual construction
authorizations.\180\
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\177\ 42 U.S.C. 7475(a)(2); 40 CFR 51.161, 51.165(i), 51.166(q).
\178\ Title I of the CAA specifically contemplates that the
``interested persons'' who may comment on State-issued PSD permits
include ``representatives of the Administrator.'' 42 U.S.C.
7475(a)(2).
\179\ Inherent in this title I permitting scheme and reflected
in the congressional record for the 1977 CAA Amendments, is the
understanding that the adequacy of State NSR permitting decisions
would be subject to review in State administrative and judicial
forums. ``In order to challenge the legality of a permit which a
State has actually issued . . . a citizen must seek administrative
remedies under the State permit consideration process, or judicial
review of the permit in State court.'' Staff of the Subcommittee on
Environmental Pollution of the Senate Committee on Environment and
Public Works, 95th Congress, 1st Session, A Section-by-section
Analysis of S. 252 and S. 253, Clean Air Act Amendments 36 (1977),
reprinted in 5 Legislative History of the Clean Air Act Amendments
of 1977, at 3892 (1977). Note that the U.S. Supreme Court has also
acknowledged the primacy of State courts to adjudicate disputes over
NSR permit terms. See Alaska Dep't of Env't Conservation v. EPA, 540
U.S. 461, 490 n.14 (2004); see also id. at 491-94 (addressing the
relationship between State court review of NSR permits and Federal
oversight tools related to NSR permits). The EPA has expressed
similar views when approving individual NSR SIPs. See, e,g., 77 FR
65305, 65306 (October 26, 2012) (The EPA ``interpret[s] the CAA to
require an opportunity for judicial review of a decision to grant or
deny a PSD permit, whether issued by EPA or by a State under a SIP-
approved or delegated PSD program.'').
\180\ Some permitting authorities and many regulated entities
submitted comments on the January 2024 Proposed Rule expressing
either concern or opposition to the EPA's focus on title I-based
oversight over individual NSR permits--specifically, the Agency's
position that an NSR permit must undergo public notice and the
opportunity for comment and judicial review before it could be said
to conclusively establish the ``applicable requirements'' of the SIP
for purposes of title V. That specific topic is discussed further in
section III.D.5 of this preamble.
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[[Page 61046]]
Congress also provided the EPA and interested parties with various
enforcement mechanisms to address non-compliance with title I
permitting requirements on a facility-by-facility basis. The EPA
possesses the authority to issue injunctive orders to halt
construction.\181\ The EPA may also pursue various types of civil or
criminal enforcement actions pursuant to CAA sections 113 and 167.\182\
In title III of the CAA, Congress also provided authority for citizens
to bring enforcement actions in the first instance seeking civil
penalties and injunctive relief against a source that is alleged to
have violated certain NSR requirements.\183\ These enforcement-based
tools can be used to ensure that decisions made in establishing the
terms of a major NSR permit, such as BACT limits, were made on
reasonable grounds properly supported by the record.\184\ Additionally,
the enforcement tools can be used to address situations in which a
source failed to obtain a required major NSR permit (even if it
obtained a minor source permit).\185\
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\181\ 42 U.S.C. 7413(a)(5)(A), 7477.
\182\ 42 U.S.C. 7413, 7477.
\183\ 42 U.S.C. 7604(a)(1), (a)(3).
\184\ See, e.g., Alaska Dep't of Env't Conservation, 540 U.S. at
484-88 (affirming application of CAA section 167 in this context).
\185\ See e.g., United States v. S. Ind. Gas & Elec. Co., No.
IP99-1692-CM/F, 2002 WL 1760699, at *3-5 (S.D. Ind. July 26, 2002);
United States v. Ford Motor Co., 736 F. Supp. 1539, 1550 (W.D. Mo.
1990).
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Overall, the availability of these title I oversight tools--the SIP
process, NSR permitting oversight, and NSR enforcement--weighs against
using title V oversight tools to address alleged defects with NSR
permitting decisions. As the Fifth Circuit explained:
EPA contrasts Title V's silence on this front with more
stringent oversight authority provided in Title I, arguing that this
supports reading the title V provision to supply a more limited
oversight role for the EPA with regard to state implementation of
preconstruction permitting programs. The agency explains that Title
I is better geared for in-depth oversight of case-specific state
permitting decisions such as through the state appeal process or an
order or action under section[ ] 113 or section 167. And, the agency
urges, the absence of such schemes in Title V shows Congress did not
intend to recapitulate the Title I process in Title V. We find this
reasoning persuasive.\186\
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\186\ Env't Integrity Project, 969 F.3d at 542 (internal
quotations and citations omitted)).
Public comments from environmental and other interest groups argued
that these title I-based oversight tools are more burdensome and less
efficient mechanisms for addressing perceived deficiencies with NSR
requirements compared to title V's oversight tools.\187\
Notwithstanding these concerns, the EPA considers the use of title I
oversight tools to resolve title I issues to be more consistent with
the structure of the CAA and with congressional intent than the use of
title V oversight tools. Further, these title I-based oversight tools
are more effective than the more limited title V oversight tools.\188\
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\187\ See section 3.4 of the RTC.
\188\ See section III.C.4.b of this preamble for further
discussion of the practical considerations and other policy reasons
why title V oversight tools are not well-suited to resolving complex
NSR permitting issues.
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c. Cooperative Federalism and Congressional Intent
Congress, the EPA, and the courts have often described the CAA as a
program of cooperative federalism.\189\ The EPA and the States work
together to realize the goals of the CAA, but they have different
roles. States have the ``primary responsibility'' for developing SIPs
in the first instance as well as issuing title I permits under SIP
programs for sources within their jurisdiction.\190\
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\189\ See, e.g., 42 U.S.C. 7401(a)(3)-(4); Env't Integrity
Project, 969 F.3d at 545.
\190\ 42 U.S.C. 7407.
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There is no indication that, in enacting title V, Congress intended
to change the balance of State responsibility and Federal oversight of
title I permitting programs. To the contrary, as noted in section
III.C.2 of this preamble, the legislative history surrounding the 1990
CAA Amendments suggests that Congress did not intend for the title V
program to change the implementation of title I permits. Moreover, the
fact that Congress specifically provided a title I-based mechanism to
establish the applicable NSR-related requirements, as well as title I-
and title III-based tools for the EPA and citizens to oversee this
program, weighs against using title V to reevaluate, reestablish, or
otherwise oversee those title I requirements. Consequently, a reading
of title V that would transform it into an opportunity to reevaluate
previous preconstruction approvals, instead of simply incorporating
existing requirements into one document, would inappropriately ``alter
the fundamental details'' of the oversight authorities the EPA has
under title I.\191\
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\191\ Whitman v. Am. Trucking Assn's, 531 U.S. 457, 468 (2001)
(``Congress . . . does not alter the fundamental details of a
regulatory scheme in vague terms or ancillary provisions--it does
not, one might say, hide elephants in mouseholes.'').
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The text of the CAA does not indicate that Congress intended to
create this type of additional administrative oversight mechanism for
preconstruction permitting actions in an operating permit program
designed to consolidate and further enforcement of existing
requirements. While there is language in title V requiring that a
permit ``assure compliance with applicable requirements of this
chapter,'' \192\ and similar language in other parts of title V, this
type of general language does not clearly or specifically require a
title V permitting authority to reevaluate preconstruction permitting
decisions that have already been made under title I, and subject to
review under title I, each time that it issues or renews a title V
permit. Instead, this general language in the statute should be read to
mean that the title V permit must include conditions to assure
compliance with the terms and conditions of the source-specific
preconstruction permits.
---------------------------------------------------------------------------
\192\ E.g., 42 U.S.C. 7661c(a).
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In summary, as the Fifth Circuit concluded in its close examination
of Title V:
Beyond the structure of Title V, EPA also persuasively grounds
its interpretation in the structure of the Act as a whole. According
to EPA, when Congress added preconstruction permitting requirements
to Title I in 1977, it understood that the adequacy of state
preconstruction permitting decisions would be subject to review in
state administrative and judicial forums. It gave EPA oversight
authority over preconstruction permitting only in specific ways, to
do specific things. For example, Congress delineated the processes
EPA must go through to approve SIPs. When it enacted Title V
thirteen years later, Congress granted EPA no such authority.
Congress gave no clear indication that it intended to alter the
balance of oversight EPA has over state permitting processes.
Section 7661c(a)'s requirement that a Title V permit assure
compliance with applicable requirements is general and broad and
does not clearly or specifically require the revisiting of
preconstruction permitting decisions. Once again, the elephants in
mouseholes canon supports this reading.\193\
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\193\ Env't Integrity Project, 969 F.3d at 545 (cleaned up).
4. Policy Reasons
In addition to the textual and legal interpretations supporting
this action, several policy considerations also support this rule. The
EPA's approach ensures that applicable requirements established in
different CAA programs are treated consistently in title V permitting,
accounts for limitations associated with title V oversight tools,
emphasizes title I avenues of review,
[[Page 61047]]
and respects the finality of, and fosters certainty in, title I
permitting decisions.
a. Consistent Treatment of Applicable Requirements From Other CAA
Programs
The EPA's approach aligns the Agency's treatment of preconstruction
permits with how the Agency has consistently treated other ``applicable
requirements'' under title V since the inception of the title V
program. As detailed in section II.E of this preamble, for other types
of applicable requirements, permitting authorities do not and cannot
reconsider the content of those requirements in title V permits. Nor
does the EPA in the Agency's title V permitting oversight role. For
instance, neither permitting authorities nor the EPA can use the title
V permitting process to revise the self-implementing substantive
requirements of an NSPS established under CAA section 111 or a NESHAP
established under CAA section 112. Similarly, it would not be
appropriate for permitting authorities or the EPA to use the title V
process to review or revise any self-implementing requirements of a SIP
approved under CAA section 110. As explained in section II.G of this
preamble, even if the EPA disagrees with the content of a SIP, until
the Agency approves a corrective SIP revision or issues a FIP, the SIP
requirement remains an ``applicable requirement'' that should be
incorporated unchanged into the title V permit. Public commenters
neither challenged these general principles nor presented any
compelling reasons to treat applicable requirements related to the NSR
program differently from applicable requirements under other CAA
programs.
For purposes of establishing ``applicable requirements'' for title
V permitting, it is logical and appropriate to treat decisions that go
through similar processes similarly. Each of the applicable
requirements addressed in the previous paragraph were established
pursuant to a process that included public notice and the opportunity
for comment and judicial review, which provides an opportunity for
interested parties to review and, if necessary, challenge the
sufficiency of those requirements at the time they are established.
Once they are established following these procedures, it would be
inappropriate to reevaluate the substance of these requirements in
title V permitting. Likewise, most source-specific NSR permitting
decisions must go through a similar process at the State level. Once
established through the appropriate procedures, and unless and until
the terms and conditions of an NSR permit are revised, reopened,
suspended, revoked, reissued, terminated, augmented, or invalidated
through some other mechanism (such as a State court appeal or
enforcement action), the ``applicable requirements'' remain the terms
and conditions of the issued NSR permit. These requirements should be
incorporated into the title V permit without further review like all
other similarly established applicable requirements.
Any differences between NSR-based applicable requirements and other
types of applicable requirements do not provide a convincing reason to
treat NSR requirements differently. For example, the fact that NSR
permits are reviewed through the State courts, as opposed to Federal
courts, is not material. As discussed in section III.D.2 of this
preamble, regardless of the jurisdiction involved, both processes are
functionally similar and offer similar levels of public involvement and
measured decision making.\194\
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\194\ To the extent Federal court review of NSR decisions offers
independent value beyond that which may be achieved through State
courts, the CAA specifically provides for various means by which the
EPA or the public can raise NSR issues to Federal courts. See
section III.C.3.b of this preamble for additional information.
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Another difference is that NSR-related requirements of the SIP are
often general and would not be described as ``self-implementing'' in
the same manner as NSPS, NESHAP, or certain source-specific SIP
requirements that are conclusively established by rulemaking. As
explained in section III.C.3.a of this preamble, the NSR-related
requirements of the SIP are defined for individual sources not through
rulemaking, but rather through an adjudication: the NSR permitting
process. Although the processes for deriving applicable requirements by
rulemaking and adjudication are different in some respects, their
relationship to the title V process should be the same. Under both
processes, regulatory agencies determine the legal requirements that
apply to a facility, following a process that typically involves public
input and concludes in a final decision that is subject to judicial
review. After a source goes through the preconstruction permitting
process and obtains a final NSR permit, the terms of that NSR permit
are immediately applicable and enforceable in the same manner as any
NSPS, NESHAP, or source-specific SIP provision established through
rulemaking. Provided there was an opportunity to comment on and seek
judicial review of such requirements when they were established, the
title V permitting process should not be used to further adjudicate
(i.e., reopen or reconsider) those applicable requirements established
by rulemaking or by adjudication.
The EPA's approach standardizes the Agency's treatment of questions
related not only to the content of applicable requirements but also to
the applicability of different types of CAA requirements. See section
III.D.3 of this preamble for additional information about this
particular topic.
b. Procedural, Resource-Based, and Other Practical Limitations of Title
V Oversight Tools
In the EPA's experience, NSR permitting issues are among the most
factually and legally complicated issues raised during the title V
permitting (and petition) process. For multiple reasons, the oversight
tools associated with the title V permitting process are a poor fit for
resolving NSR permitting issues. Compared to the available title I
avenues for review, the title V process features limited timelines and
procedural opportunities to fully evaluate complex title I issues.
Reviewing complex NSR issues through title V involves a considerable
resource burden and often is impracticable for decisions made years ago
or even for recent decisions, given the tight timelines written into
title V.
Public comments from environmental and other interest groups argued
that the title V permitting process provides an efficient and effecti
[…truncated; see source link]Indexed from Federal Register on September 25, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.