In an October 16, 2017 order signed by EPA Administrator Scott Pruitt, EPA reversed a position it has held for many years — that the Agency has authority, in the context of Title V permitting, to review previous state-level decisions on the applicability of new source permitting requirements. The new policy outlined in the October 16 order removes the Title V petition to object as an avenue for citizens to seek EPA review of state preconstruction permitting decisions.

Under the Clean Air Act, Title V operating permits issued by state and local permitting authorities must be submitted to EPA for review. EPA has 45 days to object to a Title V permit if the Agency determines that the permit is not in compliance with applicable requirements under the Act, and if the EPA does not object, a citizen can petition the Agency to object to issuance of the permit.

In April 2016, the Sierra Club petitioned EPA to object to the Title V permit issued to PacifiCorp’s Hunter Power Plant by the Utah Department of Environmental Quality Division of Air Quality (UDAQ). Sierra Club claimed the Title V permit was deficient for several reasons, including failure to include PSD requirements. Specifically, Sierra Club alleged that boiler and turbine projects undertaken at the plant in the late 1990s and permitted by the state under Utah’s minor NSR program were actually major modifications that should have gone through PSD. In its October 16th order denying the petition to object, EPA addressed what it called “the fundamental issue of whether decisions made during previous preconstruction permitting . . . should be reconsidered when issuing or renewing a title V operating permit.” In the order, EPA concluded that the Title V permitting process is not the appropriate forum for reviewing prior preconstruction permitting decisions and acknowledged that “this conclusion differs from the agency’s position in prior title V petition orders involving similar circumstances.” Instead, the Agency returned to its original interpretation of the Act, which did not provide for this type of review.

In a section of the order entitled “The EPA’s Approach Moving Forward,” the Agency outlined the policy and legal reasons for its new approach. EPA claimed that “the interpretation expressed in the order – that preconstruction permit terms and conditions should be incorporated without further review” – was actually the original interpretation advanced by the Agency contemporaneous with its promulgation of the Title V regulations in 1992. The Agency called intervening interpretations a “departure” from that original approach. EPA asserted that the Title V program is “not intended to second-guess” the results of state preconstruction permitting decisions, a determination it believes is more consistent with the structure and purpose of the Title V program, which was not intended to authorize EPA or States to impose new substantive requirements. EPA also pointed to inefficiencies in having EPA and state agencies review permitting decisions that were already subject to public notice and comment and judicial review and noted that the abbreviated timeframes provided under the Clean Air Act for EPA to review a Title V permit were inconsistent with an in-depth review of prior permitting decisions.