June 27, 2022

Volume XII, Number 178

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June 24, 2022

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Clean Air Act Permit Challenges — New Rules On the Way

In the United States, the federal Clean Air Act (CAA) requires all “major sources” of air pollution, such as power plants, refineries and other large industrial facilities, to obtain permits detailing the conditions under which those sources are allowed to operate. Such “Title V” operating permits, as they are commonly known, are typically issued by state environmental agencies but are subject to pre-issuance review by the federal Environmental Protection Agency (EPA). In fact, EPA is required to object to any proposed permit that it determines is inadequate, and the CAA also contains a public participation backstop to EPA’s oversight: where EPA fails to object to a permit, any member of the public that believes the permit is inadequate can petition EPA to make an objection.

In recent years, environmental organizations have increasingly used the petition process to challenge proposed permits, especially with respect to alleged inadequacies concerning greenhouse gas emissions. By statute, EPA is supposed to respond to such petitions within 60 days. But EPA routinely misses that deadline and now faces a sizeable backlog of pending petitions.

In late August, EPA published a proposed rule, which, if finalized, would create a series of new requirements for the submission and handling of Title V petitions. Most notably, the proposed rule would:

  • Create a new, mandatory, procedure for submitting Title V petitions to EPA;

  • Require each petition to follow a standardized format and contain certain minimum content; and

  • Impose a new requirement on state permitting agencies—a requirement that those agencies prepare written responses to all “significant comments” received from the public during the permit drafting stage.

EPA’s announcement of the proposed rule also includes a summary of EPA’s general approach to handling Title V petitions. The announcement includes, for example, a short summary of prior EPA applications of the CAA’s Title V provisions, as well as a list of “recommended practices” for state permitting agencies to follow when preparing proposed permits.

EPA is soliciting comments on its proposed rule. Comments must be received on or before October 24, 2016.

© 2022 McDermott Will & EmeryNational Law Review, Volume VI, Number 250
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About this Author

Jacob Hollinger , Environmental & Energy Attorney McDermott Will Emery Law Firm
Partner

Jacob Hollinger is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s New York office.  His practice focuses on the environmental, regulatory and litigation needs of energy and manufacturing sector entities.

Prior to joining McDermott, Jacob spent nearly ten years as a government enforcement attorney, first with the New York State Attorney General’s Office and later with the U.S. Environmental Protection Agency.  As an Assistant Attorney General for New York State, Jacob was New York’s lead litigation counsel in several complex environmental and...

212-547-5834
Julie A. Herward, McDermott Will, Energy Policy Development Lawyer, Laboratory Operations Attorney
Associate

Julie A. Herward advises clients on general energy-related matters.

While in law school, Julie served as the managing editor of the American University Law Review, in which she published a comment entitled "To Catch All Predators: Toward a Uniform Interpretation of 'Sexual Activity' in the Federal Child Enticement Statute" in the February 2014 issue. Julie also served as a law clerk for the Victim Witness Unit at the US Attorney's Office for the District of Columbia.

Before law school, Julie served as an advisor...

202 756 8317
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