Environmental Law Matters

In a move aimed to prioritize cooperative federalism and “ensure certainty for American businesses,” EPA has released new guidance outlining EPA’s expectations for Title V permit renewals, particularly in cases where the permit terms or applicable requirements are unchanged.  EPA says this will allow EPA’s permitting partners such as states and local agencies “to focus time and resources on permits with substantive changes, ultimately alleviating permitting backlogs and creating renewed efficiency.”

The Title V permitting program requires that every major stationary source of air pollution apply for and operate pursuant to an operating permit.  According to the EPA guidance, Title V permits are “not intended to be a source of new substantive requirements,” so the “permit applications should be used to define existing compliance obligations rather than impose new requirements.”  Most Title V operating permits are issued by state and local permitting authorities with EPA-approved permitting programs.  In Alabama, the Title V permitting authorities are the Alabama Department of Environmental Management, the Jefferson County Department of Health, and the City of Huntsville.

The guidance clarifies that when applicants are renewing Title V permits with the same permit terms, and there are no changes to underlying applicable requirements, the applicant can “essentially resubmit the prior application with a current date” and may cross-reference or incorporate material from previous applications.  However, any cross-referenced documents must be made available for public review as part of the permitting process.  For its agency partners issuing permits, EPA explains the flexibility in “setting forth the legal and factual basis for the draft permit conditions,” encouraging them to “focus on explaining permit requirements that are new or different.” 

EPA indicates this approach will facilitate “the statutory direction for a ‘streamlined’ and ‘expeditious’ permit review process” during Title V renewals but will not affect permitting authorities’ ability and discretion to “request necessary information from permit applicants to evaluate completeness or take final action on a permit application, consistent with [Clean Air Act] requirements.”