When Maybe Is Good Enough: The Title V Citizen Petition

Date01 February 2011
2-2011 NEWS & ANALYSIS 41 ELR 10091
When Maybe Is Good Enough:
The Title V Citizen Petition
by John C. Evans and Donald R. van der Vaart
Donald R. van der Vaart, P.E., Ph.D., J.D., is chief of the Permits Section for the North Carolina Division of Air
Quality. He has worked as an engineer in industry, academic, and government capacities. John C. Evans, J.D.,
is a supervisor in the Permits Section of the North Carolina Division of Air Quality. He worked in the eld of
environmental regulation for government, industry, and consulting. He also served in the North Carolina Attorney
General’s oce and litigated federal air quality regulations, including the EPA NOx SIP Call and the CAIR rule.
Much has been written on the Title V program
since its inception in the 1990 Amendments to
the Clean Air Act (CA A),1 and even more if its
ancestor, the national pollutant discha rge elimination sys-
tem (NPDES) permit program in the Clean Water Act,2
is considered. Among the many improvements the Title V
program was expected to bring was the increased participa-
tion of the public to the permitting process.3 Virtually a ll
new a nd modied permits are subjected to public notice
to give the interested public an opportunity for comment.
e culmination of the comment period is an additional
45-day review granted to the U.S. Environmental Protec-
tion Agency (EPA), during which the Agency reviews the
state’s proposed permit, with its statement of basis, along-
side the comments the state received from the public. e
U.S. Congress granted EPA far more oversight authority
over the Title V operating permit program as compared
with the then-to-fore state implementation plan (SIP) con-
structed in the 1970 C AA. A mong its powers, EPA can
object to an individual proposed permit and force the
state, under threat of veto, to a mend the permit to satisf y
EPA’s view of the CA A. However, Congress also provided
oversight of EPA by the public through t he public peti-
tion process. EPA is required to respond to the public peti-
tioner, and EPA’s response is reviewable in the U.S. courts
of appeal. Unfortunately, the Title V objection process and
the citizen petition have become increasingly used or pos-
sibly abused by environmental activists, both inside and
outside EPA.4 As a result, instead of the Title V permit
1. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.
2. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607.
3.  Donald R. van der Vaart & John C. Evans,  
, 21 V. E. L.J. 5 (2002).
4. Upon being appointed EPA Administrator, Lisa Jackson stated: “[W]hat I
hope that we see at the end of this are activists who look like me—activ-
ists who represent the future demographic of our country because that’s
who’s going to be the EPA in the future.” Elaine Quijano, 
process providing an orderly administration of CAA obli-
gations, the process has become a politically infused and
often litigated mineeld.
Since the Barack Obama Administration appointed Lisa
Jackson to lead EPA, established national environmental
organizations have been successful in using the Title V
public petition process to stop the issuance, or require revi-
sion, of many Title V operating permits. e Jackson-led
Agency has found in favor of the environmental petition-
ers and ag ainst the state agencies in almost every decision
made to date by this Agency.5 While it is not particularly
surprising, given the Administrator’s pledge that “EPA is
back on the job,” what may be surprising to state and indus-
try stakeholders is the basis for granting these petitions.6
When developed, the EPA objection provision charged the
Agency to make its determinations objectively, and to use
the veto authority judiciously.7 Instead, members of t he
established national environmentalist organizations, some
of whom are now within the Agency, have found the Title
V objection process to be a useful tool to either delay or
strengthen permits.8 Environmental groups have long used
the judicial process to achieve what a deliberative legisla-
 CNN.com, Apr. 21, 2009, http://www.cnn.
com/2009/POLITICS/04/21/lisa.jackson/index.html (last visited Jan. 6,
5. Approximately 18 of 19 decisions made under the Obama Administrator
decisions have favored the Petitioners.  U.S. EPA, Region 7 Air Program,
Title V Petition Database, http://www.epa.gov/Region7/air/title5/petition-
6. Lisa Jackson declared: “e EPA is back on the job.” National Public Radio,
Top Ocial: “e EPA Is Back on the Job,” http://www.npr.org/templates/
story/story.php?storyId=113884818 (last visited Jan. 6, 2011).
7. “While EPA has an important role of providing guidance and oversight, the
agency should not unduly interfere with the states’ implementation of the
permit program.” A L H   C A A A-
  1990, 1044 (1993).
8. e fast relationship between environmental nongovernmental organiza-
tions (NGOs) and the current EPA was recently evidenced in the Freedom
of Information Act disclosure of e-mails between the Sierra Club and EPA.
In a February 2009 e-mail, David Bookbinder, Chief Climate Counsel for
the Sierra Club, provided a list of pending PSD permits and requested a
meeting with EPA to discuss how the Sierra Club should object to these
projects. In a response e-mail, written less than three hours after the ques-
tion was posed, Robert Sussman, Senior Policy Counsel to the EPA Ad-
Authors’ Note: e views expressed by both authors are solely those of
the authors and do not represent the views or positions of the North
Carolina Division of Air Quality.
Copyright © 2011 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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