EPA air pollution proposal will restrict the public’s ability to challenge unlawful permits

ATLANTA— This week the U.S. Environmental Protection Agency proposed a national rule eliminating its ability to object to a state-issued Clean Air Act Title V operating permit that illegally excludes critical New Source Review (NSR) pollution control requirements. If finalized, the rule would override a decision by the U.S. Court of Appeals for the Tenth Circuit, which ruled that NSR requirements must be included in a Title V permit if they apply. 

One of the most consequential Clean Air Act requirements is NSR, which, if it applies, requires an industrial source to reduce its air pollution by using the best available control technology at a minimum. Under EPA’s proposal, even if a petitioner plainly demonstrates that a source’s construction or modification triggered NSR applicability, the agency will not object to a state’s failure to include NSR requirements in the source’s operating permit. The proposal also would eliminate EPA’s ability to object to inadequate determinations made by states when applying NSR, such as the failure to require legally sufficient, up-to-date air pollution controls. 

In response, Keri Powell, leader of the Southern Environmental Law Center’s Air Program, released the following statement: 

“EPA’s proposal would take away a key opportunity for communities to reduce unlawful industrial air pollution that threatens their health. A Title V permit is meant to serve as a source-specific guide to Clean Air Act compliance, clarifying which requirements apply and specifying monitoring and reporting obligations sufficient to assure the source’s compliance. Importantly, members of the public can petition EPA to object to a state’s issuance of a permit that omits an applicable requirement. 

“States often make mistakes when determining whether NSR applies to a new or modified pollution source and establishing source-specific NSR control requirements. EPA’s proposal would shield these decisions from challenge in the Title V process, eliminating an important and straightforward mechanism for impacted communities to address facility non-compliance with critical clean air protections.”