January 01, 2015

Title V permit renewals

Angela Morrison

Environmental practitioners assisting with Clean Air Act Title V air operation permit renewals can help ensure appropriate and complete conditions by following some general guidelines listed below.

  1. The obvious: Identify everything in the permitting document that has changed between the last Title V permit (or latest revision) and the newly proposed Title V permit. Take the time to compare the language in the current permit to the newly proposed permit in a detailed, word-for-word fashion. In addition, compare the information provided in the air permit application submitted by the permittee to the information included in the newly proposed permit. Many agencies reflect changes from the prior permit in the new proposal through redlining. Others, however, do not. By making these comparisons, you and the permittee can evaluate and assess the agency’s suggested changes and confirm whether they are appropriate and consistent with applicable requirements.
  2. Check citations and quoted rules, especially altered wording: Sometimes environmental agencies incorporate by reference or attach an entire set of rules, such as a particular NESHAP (National Emission Standard for Hazardous Air Pollutant) or NSPS (New Source Performance Standard) requirement, providing little guidance on how the rule applies to a particular unit. At other times, agencies appropriately restate or incorporate into the permit only the applicable portion of a rule to clarify how that particular rule applies to a specific emission unit. This type of clarification is particularly helpful when a rule provides for multiple options. For example, if a single rule includes one limit applicable to units of a particular size and another limit applicable to smaller units, the agency may include only the applicable portions of the rule. Sometimes, however, agencies alter rule language for a less-apparent reason, which could indicate a new or different interpretation. In this situation, consider discussing the issue with the agency to clarify or confirm its intent. You should treat a permit like a contract, ensuring that there is a meeting of the minds on the purpose and intent of each provision.
  3. Consider any newly applicable requirements: The agency and the permittee should be careful to reflect any rules that were promulgated and became applicable since the agency issued the last Title V permit. In addition to reviewing the text of the permit as proposed, you should be careful to consider what is not in the draft permit. Remember, the Title V permit shield helps only to the extent the permit or at least the application reflects the non-applicability of a rule. A requirement that is inadvertently omitted could still apply. The Title V renewal process is a perfect time to update the regulatory applicability analysis, focusing in particular on new standards adopted since issuance of the last permit. Some of the newer NESHAP standards, for example, apply to emission units not previously regulated, such as older, small boilers and engines (including those at area HAP (Hazardous Air Pollutant) sources).
  4. Take advantage of the open permit: If any prior condition has been unclear or subject to misinterpretation by plant personnel or inspectors, use the opportunity to get the wording clarified while the permit is open. This is true for the agency as well as the permittee. While the permit is open, you should consider whether the permittee has added or removed any unregulated or insignificant activities since the last permit and ensure that the new permit appropriately reflects those changes. Do not miss this opportunity for improvement.
  5. Don’t forget the “final” details: Check the expiration date, the next renewal date, and the deadline for submittal of the next renewal application. It is much easier to correct the expiration date before the permit becomes final. Also, use this as an opportunity to update your list of deadlines, tests, and reports that the permit requires over the next term, and be sure you enter them into the appropriate database for periodic reminders.

For more information on Title V permits, please consult the Section’s Clean Air Act Handbook (Third Edition), available at www.ShopABA.org.

Angela Morrison

Angela Morrison is the principal attorney for Morrison Environmental Law, P.L., based in Florida. She is currently the editor-in-chief for Trends and past chair of the Air Quality Committee of the ABA Section of Environment, Energy, and Resources. She is also the author of Title V air permitting chapter in the Section’s Clean Air Act Handbook (Third Edition).