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EPA to Focus on Compliance Monitoring in Title V Air Operating Permits

Environmental Alert

On June 12, 2009, EPA Administrator Lisa Jackson released a significant decision on compliance monitoring requirements in Title V air operation permits. The Administrator's decision, originally issued on May 28, 2009, resolves a Title V petition filed by several environmental groups involving a permit issued to Citgo Refining & Chemicals Company in Corpus Christi, Texas.

The decision is available here. Pages 4-8 contain important information for all Title V air operating permit holders. These pages set forth the EPA's new interpretation of what type of compliance monitoring conditions in Title V permits will be deemed by the EPA to satisfy the requirements of the Part 70 regulations which govern the Title V permit program. These pages of the decision are required reading for anyone who has responsibility for managing compliance with a Title V permit or for submitting applications to state agencies for new Title V permits or renewals to (or revisions of) existing Title V permits.

In the Citgo decision, Administrator Jackson explained EPA's approach to compliance monitoring as follows:

"EPA's Part 70 monitoring rules [40 CFR 70.6(a)(3)(i)A) and (B) and 70.6(c)(1)] are designed to satisfy the statutory requirements that '[e]ach permit issued under [Title V] shall set forth...monitoring...requirements to assure compliance with the permit terms and conditions. CAA Section 504(c)." [See "Citgo Decision," at the bottom of page 6 and top of page 7]. The EPA goes on to advise, "As a general matter, permitting authorities must take three steps to satisfy the monitoring requirements in EPA's Part 70 regulations:

  1. Under 40 CFR 70.6(a)(3)(i)(a), permitting authorities must ensure that monitoring requirements contained in the applicable requirements are properly incorporated into the Title V permit.

  2. If the applicable requirement contains no periodic monitoring, permitting authorities must add 'periodic monitoring sufficient to yield reliable data from the relevant time period that are representative of the source's compliance with the permit.' 40 CFR 70.6(a)(3)(i)(B).
  3. If there is some periodic monitoring in the applicable requirement, but that monitoring is not sufficient to assure compliance with permit terms and conditions, permitting authorities must supplement monitoring to assure such compliance. 40 CFR 70.6(c)(1)." [Emphasis added]

A copy of the current federal EPA regulations on compliance monitoring for Title V air operation permits as set forth in 40 CFR 70.6 can be found here.

Given the above, it is important that the state or tribal permitting agency clearly articulate its rationale in adopting the specific compliance monitoring requirements in any Title V permit, with reference to the above-outlined steps and Part 70 rules. This should be done in the agency's application review documents that support the final permit. In addition, the state or tribal permitting agency must clearly and completely respond to comments raised on these issues during the public comment period, prior to the final issuance of the permit. If these responsibilities are not fulfilled, the EPA will most likely order the remand of the permit back to the state agency with instructions to address these issues.

The EPA has already begun applying the compliance monitoring rulings in Citgo. See Administrator Decision in Premcor Refining Group Title V Petition (Petition No. VI-2007-02), dated May 28, 2009.

Environmental groups around the country continue to be active in raising continuous compliance monitoring issues in Title V Petitions to the federal EPA Administrator. By dealing effectively and thoroughly with these types of issues during the permit application and review process before the state air permitting agency, Title V air permit holders can effectively reduce the number and frequency of air permit appeals now being filed in Title V cases.

For more information, please contact Mike McCauley at 414-277-5525 /, Pete Tomasi at 414-277-5677 / or your Quarles & Brady attorney.