FCAA- Title V Overview
Title V Permit Program Requirements
Title V of the federal Clean Air Act (CAA), as amended in 1990, creates an operating permits program that is implemented by the states. The outline that follows provides a brief overview of the program requirements.
U.S. EPA Implementing Regulation
The United States Environmental Protection Agency (U.S. EPA) promulgated its final implementing regulation for the operating permits program in 40 CFR Part 70 (57 Federal Register 32250) on July 21, 1992. This regulation defines the minimum elements of California district operating permit programs. However, some of these elements may be revised in subsequent rulemakings.
Title V Operating Permit Programs
California air districts, which are authorized to issue permits to stationary sources by the California Health and Safety Code, were required to develop and submit to the U.S. EPA operating permit programs by November 15, 1993. Consulting with the California Air Pollution Control Officers Association (CAPCOA) Title V Task Force, the Air Resources Board (ARB) developed a model Title V operating permit program and rule. This model program and rule form the basis for many California district Title V operating permit programs. The California district programs based on the ARB model include the following elements:
- Provisions for permit applications and determination of the completeness of applications,
- The most recent presumptive minimum fee (per ton per year of each regulated air pollutant except carbon monoxide, and Consumer Price Index-adjusted) to cover permit program costs.
- Authority to issue permits containing required terms and conditions,
- Provisions to allow reasonable operating flexibility, specifically including authorization of changes by simply giving a minimum seven-day (many districts chose a 30-day) prior notice if the emissions allowable under the permit would not be exceeded and the proposed changes would not constitute a Title I (of the CAA) modification,
- Procedures for permit issuance, including opportunity for public comment, public hearing (upon request), and judicial review,
- Procedures for permit revisions, which vary according to the nature of the change involved, and
- Enforcement authorities, including civil and criminal penalties (up to $10,000 per day per violation of permit conditions or nonsubmittal of an application).
California District Title V Program History
Initial Program Approval
- U.S. EPA, Region IX, granted interim approval to 34 district Title V programs that became effective between June 1995 and March 1997 (the recently created Antelope Valley Air Pollution Control District was granted interim approval effective January 18, 2001-January 21, 2003).
- U.S. EPA, Region IX, granted complete Title V program approval effective November 30, 2001 that included a three-year Title V permitting deferral for State permit-exempt agricultural equipment used in the growing of crops or the raising of fowl or animals.
- Citizen lawsuits filed against U.S. EPA prompted a settlement agreement that required U.S. EPA to issue a Notice of Deficiency (NOD) on May 22, 2002 that started a 18-month clock for statewide sanctions to take effect November 23, 2003 (2:1 offset ratio for new and modified sources) and May 23, 2004 (withdrawal of federal highway funds), unless H&SC Section 42310(e) is amended to remove the agricultural permit exemption.
Removal of the Agricultural Permit Exemption
- On September 22, 2003, Governor Davis signed legislation (SB 700) that removes the exemption from permitting agricultural sources from State law.
- On November 5, 2003, ARB submitted a letterto U.S. EPA that revises the State's Title V operating permit programs to resolve California's Title V program deficiency by providing the Attorney General's opinion and the chaptered legislation (SB 700). This action stopped the sanctions scheduled to go into effect on November 23, 2003.
Final Program Approval
- On November 21, 2003, U.S. EPA published a Federal Register notice of approval of a revision to 34 State Title V operating permit programs that returns the Title V Operating Permit program to those 34 California air districts. Those air districts now have the authority to issue Title V permits to major stationary agricultural sources because the agricultural permit exemption was removed from State law on January 1, 2004.
- On January 15, 2004, U.S. EPA published a Federal Register notice of approval of the Antelope Valley Air Pollution Control District's Title V program that returns the Title V Operating Permit program to the district. This air district now has the authority to issue Title V permits to major stationary agricultural sources because the agricultural permit exemption was removed from State law on January 1, 2004.
In general, the sources that must submit applications include the following:
- Any "major source" under the general definitions in the CAA,
- Any "affected source" under the acid rain requirements of Title IV of the CAA, or
- Any solid waste incinerator subject to Section 129(e) of the CAA,
- Any source in a source-category designated by rule of the U.S. EPA.
Owners or operators of sources required to obtain Title V operating permits, were required to prepare and submit applications within one year after the U.S. EPA approved the state / district program. However, in California, many districts required applications from certain sources earlier (within three or six months of program approval).
The permit applications contained: descriptions of emissions points, emissions rates, and a range of other types of emissions-related information as required by the district; a description (or citation) of all applicable federal (air pollution control) requirements, including test methods for determining compliance; any exemptions from otherwise applicable federal requirements; a compliance plan for all sources; proposed methods for certifying compliance and a statement of the source's compliance status; a certification statement; and other information.
Permit Terms and Conditions
The Title V operating permit must contain certain terms and conditions, while others are optional.
The required terms and conditions include the following:
- Emissions limitations and standards for all applicable federal requirements,
- Permit duration (generally five years),
- Monitoring and related recordkeeping and reporting requirements,
- Provision stating that noncompliance constitutes a violation of the Act,
- Authorization for modifying, revoking, reopening, reissuing, or terminating a permit for cause,
- Provision for payment of annual fees,
- Identification of terms that are federally enforceable,
- Compliance certification and reporting requirements, and
- Authorization for emergencies to constitute an affirmative defense to enforcement action.
The optional terms and conditions may include the following:
- Provisions for alternative operating scenarios,
- Provisions for emissions caps, and
- Provisions for a permit shield.
Permit Issuance Procedures
The procedures for issuing permits include the following requirements:
- A 60-day period to determine application completeness,
- Application shield for operating without a Title V permit for sources that submit timely, complete applications,
- Transmission to U.S. EPA of a copy of each permit application and of each proposed final permit,
- Notice to "affected states" (all contiguous states whose air quality may be affected and others within 50 miles of the source),
- Public notice and opportunity for hearing,
- Opportunity for the U.S. EPA to object to a proposed permit within 45 days of receipt and to override state/district decisions,
- Opportunity for citizen petition within 60 days after the end of 45-day U.S. EPA review period if U.S. EPA fails to object, and
- Opportunity for judicial review.
Currently, there are three permit revision tracks. (Proposed revisions to 40 CFR Part 70 are expected to extensively change this component of the program.)
- "Administrative permit amendments" include minor name changes and typographical errors and they can be made immediately upon submittal of the amendment request.
- "Minor permit modifications" generally include changes that only result in de minimis emissions increases, as long as the changes do not constitute a modification under Title I of the CAA, and they can be made after the U.S. EPA has reviewed the permit revision application and proposed permit.
- "Significant modifications" are all other permit modifications and are subject to the same review procedures as for initial permit issuance.
Permit Renewals and Reopenings
An application for permit renewal must be submitted at least six months prior to the end of the permit term. Permits may be reopened to correct the permit or to add new applicable federal requirements. The procedures used in initial permitting are also used in renewals and reopenings.