Operating Permits

• Author: Arnold W. Reitze, Jr.
• Pages: 237-252

Page 237

Chapter 8:

Operating Permits

§1. Introduction

e 1990 Clean Air Act (CA A) Amendments cre-

ated Subchapter V, which was the rst to man-

date a comprehensive operating permit program

to regulate air emissions from stationary sources.1

Forty-eight states had implemented some t ype of

operating permit program prior to the 1990 CAA

Amendments, but state programs varied widely

in their scope and requirements. One of the prin-

cipal benets of Subchapter V of the 1990 CAA

Amendments was the development of more uni-

form permit programs that meet minimum fed-

eral standards. e federal requirements are only

a minimum, or “loor,” and state programs may be

more stringent or comprehensive. e Subchap-

ter V operating permit program applies to major

sources. EPA is allowed by CAA §502(a) to exempt

non-major sources from the permitting require-

ments if it nds compliance is impractical, infea-

sible, or unnecessarily burdensome on sources. As

of 2008, state and local authorities had issued more

than 16,000 permits.2Approximately 350,000

non-major sources potentially may be aected by

a federal operating permit requirement at some

time in the future, but many states impose permit

requirements on “minor” sources.

e CAA’s Subchapter V was patterned after

the national pollution discharge elimination sys-

tem (NPDES) permitting provision in §402 of the

Clean Water Act (CWA).3 Because the C AA oper-

ating permit program was instituted years after the

development of the C AA, it is more dicult to

implement than the CWA §402 permit program

that was part of the CWA since 1972.

1. 42 U.S.C. §§7661-7661f, CAA §§501-507.

2. Sierra Club v. EPA, No. 04-1243 (D.C. Cir. Aug. 19, 2008).

3. 33 U.S.C. §1342.

e permit program ties together many parts of

the CAA. It is an essential implementation tool for

identifying the existing state implementation plan

(SIP) program’s requirements that are applicable to

specic sources because air pollution sources often

have numerous emission points and pollutants that

are subject to dierent requirements under the

SIP as well as other provisions of the CAA. e

operating permit program attempts to place major

new and major existing facilities’ CAA “applicable

requirements” in one document to ensure that

a source knows its obligations under the CAA.4

e term “applicable requirement” includes: (1)

any standard or other requirement provided for in

the applicable implementation plan approved or

promulgated under Subchapter I; (2) any term or

condition of any preconstruction permit; (3) any

new source performance standards (NSPS) under

CAA §111; (4) any standard or requirement under

CAA §112; (5) any sta ndard or requirement pur-

suant to the acid rain program in Subchapter IV;

(6) any monitoring requirements established by

CAA §504(b) or CAA §114(a)(3); and (7) require-

ments established in miscellaneous sections (CAA

§129—incinerators; CAA §183(e)—consumer

products; CAA §183(f)—tank vessels; and CAA

§328—outer continental shelf, Subchapter VI—

stratospheric pollution).5

e operating permit program also promotes

three other EPA objectives: market-based programs,

coordination of control programs across media,

and pollution prevention. e market-based pro-

gram is part of the Subchapter IV’s acid rain pro-

gram as well as the subsequent regulatory eorts to

control nitrogen oxide (NOx), sulfur dioxide (SO2),

4. Sierra Club v. Georgia Power Co., 443 F.3d 1346, 36 ELR 20065

(11th Cir. 2006).

5. 40 C.F.R. §70.2.

Page 238 Air Pollution Control and Climate Change Mitigation Law

and mercury emissions. EPA is committed to using

market-based principles to achieve environmental

protection at the least cost, and the operating per-

mit program is expected to lay the foundation for

this approach because operating permits include

the monitoring and compliance requirements nec-

essary to utilize market-based approaches. Prior

to 1990, the CAA was the only major regulatory

act implemented by the U.S. Environmental Pro-

tection Agency (EPA) that had no operating per-

mit. With the Subchapter V program, EPA has the

ability to coordinate control requirements across

media. Implementing Subchapter V allows EPA to

pursue strategies to avoid and eliminate pollution

rather than shift it to another media.

e key to the success of the CAA’s operat-

ing permit program is state implementation. EPA

issues operating permits under Subchapter V only

if a state either does not establish an operating per-

mit program that meets EPA’s requirements found

at 40 C.F.R. Part 70 or does not accept delegation

of EPA’s permitting authority as provided by 40

C.F.R. §71.10. By 2000, all states, the District of

Columbia, Puerto Rico, and the Virgin Islands had

at least interim approval. e status of each juris-

diction is found at 40 C.F.R. Part 70, Appendix

A; nearly all state and local operating permit pro-

grams have received full, Part 70, approval. After

a permit is issued, it becomes an essential part of

the government’s compliance and enforcement pro-

gram. A state may establish additional permitting

requirements that are consistent with the CA A or

may impose Subchapter V requirements on sources

not required to be regulated by the CAA. e Sub-

chapter V program is based on state-issued operat-

ing permits that are enforceable by both the state

and EPA.

§2. Goals of the Permit Program

e operating permit program aims to:

(1) make the CAA easier to enforce because

the applicable requirements for a source are

in one document;

(2) increase consistency with the CWA, the

Resource Conservation and Recovery

Act (RCRA), and the Federal Insecticide,

Fungicide, and Rodenticide Act (FIFRA),

which have permit programs, a nd a CAA

operating permit requirement makes it

easier to coordinate cross-media programs;

(3) obtain emissions data and related informa-

tion from sources of pollution to assist in

the development of accurate inventories

and SIPs;

(4) increase nationwide consistency in how air

emissions are controlled;

(5) develop baseline information from air pol-

lution sources to facilitate emissions trad-

ing and oset acquisition;

(6) provide money to pay for state air pollution

control programs through the use of per-

mit fees, thus, making state air pollution

control programs nancially self-sucient;

(7) simplify the SIP by putting details in

permits and, thereby, avoid numerous

time-consuming SIP revisions (under the

pre-1990 law an emissions trade had to be

processed as a SIP revision);

(8) facilitate the development and implementa-

tion of a hazardous chemical emission con-

trol program under CAA §112;

(9) tie together prevention of signicant dete-

rioration (PSD), nonattainment, hazardous

air pollutants (HAPs), and acid rain pro-

grams in an integrated air pollution control

program;

(10) provide a process for states to impose more

stringent state requirements;

(11) make it easier for the public to discover the

requirements imposed on sources, to facili-

tate public participation in determining

what requirements to impose, and make it

easier to bring citizen suits;

(12) provide the source, the regulating agencies,

and the public with a clear understanding

of the applicable monitoring, recordkeep-

ing, and reporting requirements; and

(13) provide permission for inspections.

§3. State Responsibilities in Creating

a Permit Program

e majority of the operating permits issued under

the C AA are issued by the states pursuant to the