Title V Permit Program: Navigating the Enforcement Traps of the Clean Air Act

EPA continues its aggressive enforcement of the Clean Air Act (CAA) utilizing the certification process of the Title V program to address past non-compliance with key air rules and regulations. EPA Region V’s recent Notice of Violation (NOV) to Oxbow Midwest Calcining LLC (Oxbow) illustrates its legal posture and the need for companies to verify that Title V applications fully describe the operations and emissions, and disclose any past non-compliance including any historic non-compliance — whether by the current operator or a past operator — with the new source review requirements.

In the June 16, 2009 NOV issued to Oxbow, EPA asserted that, in 1998, the prior owner of the facility replaced an economizer on the primary emission unit without obtaining a new source review permit and without installing the Best Available Control Technology (BACT). The facility was subsequently sold to Oxbow in June 2008. Oxbow applied for and was reissued a Title V permit on June 8, 2008. EPA now asserts in the recent NOV that Oxbow violated the CAA by operating the facility without going through new source review, installing BACT, or disclosing the 1998 events in its Title V application.

The enforcement approach exhibited in the Oxbow NOV reinforces several key points:

• In applying for a Title V permit, it is essential to submit a complete application that accurately describes the operations of and emissions from the facility. Simply importing prior information into a current application without verifying the current accuracy of the information — such as the chemicals emitted or the emission rates — is done at one’s own risk.
• Prior to certifying the compliance status of the facility as part of the application process, one needs to undertake a thorough review of compliance with all air-related requirements, including historic compliance with the new source review regulations.
• Failure to disclose non-compliance or fully describe the operations and emissions may result in an invalid operating permit and sanctions for operating without a valid Title V permit.

Meeting the requirements of the Title V permit program is key to successfully navigating the enforcement traps in the CAA and its rules and regulations. If properly applied for and issued, the Title V permit can serve as a basis for outlining the compliance requirements of the facility. However, if the information in the application does not meet the test of disclosing all relevant and appropriate information, or the certification fails to disclose non-compliance, then the enforcement ramifications may be significant.

Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our clients and colleagues.

If you have any questions about this alert or would like to discuss the topic further, please contact your Foley attorney or the following individual:

Mark A. Thimke
Milwaukee, Wisconsin
414.297.5832
[email protected]