Operating Permits

AuthorArnold W. Reitze, Jr.
Page 237
Chapter 8:
Operating Permits
§1. Introduction
e 1990 Clean A ir Act (CA A) Amendments cre-
ated Subchapter V, which was t he rst to man-
date a comprehensive operating permit program
to regu late 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 progra ms 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 un necessarily burdensome on sources. As
of 2008, state and local authorities had issued more
than 16,000 permits.2 Approximately 350,000
non-major sources potentially may be aected by
a federal operating permit requirement at some
time in t he 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 tha n the CWA §402 permit program
that was part of the C WA 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).
e permit program ties together ma ny 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 bec ause 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 t hat
a source knows its obligations under the C AA.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 standa rd 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 (CA A
§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).
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 t he only major regulatory
act implemented by t he U.S. Environmental Pro-
tection Agency (EPA) that had no operating per-
mit. With the Subchapter V program, EPA has the
ability to coordinate c ontrol 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 f ull, 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 add itional 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 becau se
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, a nd 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 a ir
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 progra ms 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, t hereby, 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 CA A §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
(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 pa rticipation 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

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