Changes to the EPA Title V Petitioning Program

Smoke Stacks
March 03, 2020

The United States Environmental Protection Agency (EPA) streamlined another regulation in the current administration’s endeavor to clear what they consider to be muddied EPA rules.

On January 14, 2020, the EPA finalized revisions to the Title V permitting regulations regarding petitions (40 CFR Part 70).

Even though owners and operators of major stationary sources or other sources that are subject to Title V permitting requirements are not directly affected by this rule, they may still be interested it in and should familiarize themselves with it.

The Title V operating permit program, established under the 1990 Clean Air Act (CAA) Amendments, ensures that air quality requirements are applied to and maintained for any given facility emission unit.

Most states, certain local agencies, and two tribes have federally-approved operating permit programs. As part of an approved program, Title V of the CAA requires every major source and certain other sources to apply for and operate according to the specifications in an operating permit.

Under the Title V “Petition Provisions,” anyone with concerns or who objects to a requested permit for any reason, is allowed to petition the Administration asking that the permit not be granted until the concerns are met.

Permitting authorities submit a proposed Title V permit to the EPA Administrator for a 45-day review period before issuing the permit as final. If the Administrator does not object to the permit, any person can submit a Title V petition within 60 days after the expiration of the 45-day review period.

This new ruling, in an attempt to clarify the petition requirements, as well as expedite and streamline the permitting process, specifically addresses three primary areas of the process: submissions, content and forms, and response times.

1) Electronic Submissions

To promote a paperless environment and to expedite the process, the Agency is encouraging electronic submissions.

The EPA developed an electronic submittal system for Title V petitions through the Central Data Exchange (CDX). Information on how to access and use the system is available at the Title V petitions website.

If one is unable to use the CDX to file, the EPA requests that petitions and associated attachments be sent by e-mail. And if all else fails, paper submissions are still permitted.

2) Mandatory Content and Format

Second, the rule specifies mandatory content and format for Title V petitions.

In addition to the permit number or some other identification, the petition must specify whether the relevant permit action is an initial issuance, renewal, or modification/revision, including minor modifications/revisions.

The rule document in the Federal Register says that “Any issue raised in the petition as grounds for an objection must be based on a claim that the permit, permit record, or permit process is not in compliance with the applicable requirements under the Act or requirements under part 70.”

All supporting evidence of that objection must be explained and included in the petition, including reference material. The Administrator will not consider any information incorporated into the petition by reference alone. However, petitions may and should still provide citations i.e. case law, to support each claim presented.

For each claim, the new § 70.12 requires:

  • The specific grounds for an objection, citing a specific permit term or condition where applicable.
  • The applicable requirement under the CAA or requirement under part 70 that is not met.
  • An explanation of how the infraction does not meet CAA regulations.
  • If public participation requirements are in question, it is the petitioner’s responsibility to specifically identify the required public participation procedure that was not provided.
  • Any relevant page number(s) in the public comment where the issue in the claim was raised.
  • Finally, “the petition must identify where the permitting authority responded to the public comment, including the specific page number(s) in the document where the response appears, and explain how the permitting authority’s response to the comment is inadequate to address the claimed deficiency.”

3) Response Times

Lastly, the rule requires permitting authorities to respond in writing to significant comments received during the public comment period, and to provide that response in the form of a response to the EPA for the agency’s 45-day review period.

The ruling reminds petitioners that a correctly filed petition does not guarantee that their petition will be granted or that a permit will be denied. The Administrator may determine that even if a petitioner includes all the required information, they may not have proven noncompliance. Or perhaps “the petition might point to a specific permit term as not being adequate to comply with a standard established under the CAA, but the EPA may determine that the standard does not apply to the source.”

Public Reactions

The public responded to these new regulations with mixed feelings.

Some applauded the ruling. While other commenters, for example, felt that the changes to content and formatting were too restrictive. Others objected to the disregard of information included in the petition “only by reference.”

Those opposed believe that the new standards leave people who are most affected by air pollution i.e. people in lower income and under privileged communities, in a position where they could not complete a petition in a timely and effective manner.

The EPA feels, however, that this information not only increases public transparency and understanding of Title V requirements, but shows what the EPA is looking for, thus expediting the review process.

The final ruling will take effect on April 6, 2020. For more details, read the final rule or the fact sheet.


Laurie Toupin