leslie s. ritts, partner [email protected] 1 new source review & title v permit update: american...

11 Leslie S. Ritts, [email protected]

New Source Review & New Source Review & Title V Permit Update: Title V Permit Update:

American Public Power AssociationAmerican Public Power Association2005 Engineering and Operations Technical 2005 Engineering and Operations Technical

ConferenceConference

April 18, 2005April 18, 2005

Leslie Sue RittsLeslie Sue RittsHogan & Hartson L.L.P.Hogan & Hartson L.L.P.

555 13555 13thth Street, NW Street, NWWashington, DC 20004Washington, DC 20004

202-637-6573202-637-6573


Topics of DiscussionTopics of Discussion 2002/2003 New Source Review (NSR) 2002/2003 New Source Review (NSR)

Reform Rules Reform Rules – ImplementationImplementation– Litigation on NSR Reform RulesLitigation on NSR Reform Rules– Future NSR ReformsFuture NSR Reforms

EPA’s NSR Enforcement InitiativeEPA’s NSR Enforcement Initiative Title V UpdateTitle V Update

– Title V Task ForceTitle V Task Force– Compliance CertificationCompliance Certification


NSR BASICS NSR BASICS NSR established by Parts C and D of NSR established by Parts C and D of

Title I of the Clean Air Act.Title I of the Clean Air Act.– Permit required for major new sources Permit required for major new sources

with major emissions or major with major emissions or major modifications of major sources with modifications of major sources with significant emissions increasesignificant emissions increase

Facilities may qualify for the Routine Facilities may qualify for the Routine Maintenance Repair and Replacement Maintenance Repair and Replacement (RMRR) exclusion.(RMRR) exclusion.

Dual State and EPA Authorities.Dual State and EPA Authorities.


EPA Rules and EPA Rules and GuidanceGuidance

EPA promulgated NSR regulations first in 1974, and EPA promulgated NSR regulations first in 1974, and then revised the regulations in 1978, 1980, 1992, then revised the regulations in 1978, 1980, 1992, 2002 and 2003.2002 and 2003.

Current regulations can be found at 40 CFR Current regulations can be found at 40 CFR §§ 51.165; 40 CFR 51.165; 40 CFR §§ 51.166; and 40 CFR 51.166; and 40 CFR §§ 52.21. 52.21.

EPA Guidance, Applicability Determinations, and EPA Guidance, Applicability Determinations, and EAB decisions.EAB decisions.– See See In Re: Rochester Public UtilitiesIn Re: Rochester Public Utilities, PSD Appeal No. 03-, PSD Appeal No. 03-

03.03.

– See Applicability Determination for DTE’s Monroe Power See Applicability Determination for DTE’s Monroe Power Plant (May 23, 2000), 65 FR 77623 (Dec 12, 2000)Plant (May 23, 2000), 65 FR 77623 (Dec 12, 2000)

– http://www.epa.gov/region07/programs/artd/air/policy/http://www.epa.gov/region07/programs/artd/air/policy/search.htmsearch.htm


NSR ImplementationNSR Implementation


2002/2003 NSR 2002/2003 NSR Reform RulesReform Rules

December 31, 2002 rule (67 Fed. December 31, 2002 rule (67 Fed. Reg. 80186) (NSR 2002)Reg. 80186) (NSR 2002)

– Effective date March 3, 2003Effective date March 3, 2003

October 27, 2003 rule (68 Fed. October 27, 2003 rule (68 Fed. Reg. 61248) (NSR 2003)Reg. 61248) (NSR 2003)

– Planned Effective date December Planned Effective date December 26, 2003 (stayed)26, 2003 (stayed)


2002 NSR Reform Rule2002 NSR Reform Rule NSR 2002 ReformsNSR 2002 Reforms

– Computation of baseline actual emissions Computation of baseline actual emissions for non-utilitiesfor non-utilities

– Actual to projected-actual methodology for Actual to projected-actual methodology for determining emissions increasesdetermining emissions increases

– Plantwide applicability limits (PALs)Plantwide applicability limits (PALs)– Clean unitsClean units– Pollution control projectsPollution control projects– Records for demand growthRecords for demand growth


Litigation Litigation 2002 NSR Reform Rule2002 NSR Reform Rule

Lawsuit filed in the D.C. Circuit Court of Lawsuit filed in the D.C. Circuit Court of Appeals challenging 2002 rules (as well as Appeals challenging 2002 rules (as well as 1992 and 1980 rules) .1992 and 1980 rules) .– State of New York et al. v. EPAState of New York et al. v. EPA (Case No. 02-1387) (Case No. 02-1387)

Failed Motion for StayFailed Motion for Stay Reconsideration of RuleReconsideration of Rule Argument held on Jan. 25, 2005Argument held on Jan. 25, 2005

– Decision expected late spring/summerDecision expected late spring/summer– Possible OutcomesPossible Outcomes– Effect on ImplementationEffect on Implementation


Litigation Litigation 2002 NSR Reform Rule2002 NSR Reform Rule

Industry petitioners/Industry IntervenorsIndustry petitioners/Industry Intervenors– Industry (i.e., the Utility Air Regulatory Group, et al.) Industry (i.e., the Utility Air Regulatory Group, et al.)

contends that EPA’s practices over the past two decades, contends that EPA’s practices over the past two decades, including the new reform rules are illegal.including the new reform rules are illegal.

– UARG argues that the capacity to emit should be examined UARG argues that the capacity to emit should be examined based on maximum hourly emissions rates and not total based on maximum hourly emissions rates and not total actual emissions from the facility.actual emissions from the facility.

– Success of industry petitioners would result in remand of Success of industry petitioners would result in remand of the NSR rules to incorporate the maximum hourly emission the NSR rules to incorporate the maximum hourly emission rate test.rate test.

– EPA Defense: They argue that the 1980 and 1992 rules EPA Defense: They argue that the 1980 and 1992 rules are based on actual emissions.are based on actual emissions.

Industry Intervenors attempting to protect baseline, Industry Intervenors attempting to protect baseline, actual-to-future actual methodology, PALs, clean units, actual-to-future actual methodology, PALs, clean units, and PCPsand PCPs


Implementation NSR Implementation NSR 20022002

(Delegated States)(Delegated States) Rule effective on March 3, 2003Rule effective on March 3, 2003 Delegation states must complyDelegation states must comply

– MA terminated delegation agreement. [68 MA terminated delegation agreement. [68 Fed. Reg. 35, 881 (June 17, 2003)]Fed. Reg. 35, 881 (June 17, 2003)]

– EPA withdrew delegation from local EPA withdrew delegation from local programs with authority in NV and CA. [68 programs with authority in NV and CA. [68 Fed. Reg. 19, 371 (April 21, 2003)]Fed. Reg. 19, 371 (April 21, 2003)]

NV revising SIP to incorporate NSR 2002.NV revising SIP to incorporate NSR 2002.

– MN has implemented NSR 2002.MN has implemented NSR 2002.


Implementation NSR Implementation NSR 2002 (SIP states)2002 (SIP states)

States must submit revised SIPs by States must submit revised SIPs by January 2, 2006 January 2, 2006

– Several states in process of adopting NSR Several states in process of adopting NSR 2002 (Including CO and OH). 2002 (Including CO and OH).

– Several states have legislation pending Several states have legislation pending that endorses the NSR reform rules that endorses the NSR reform rules promulgated by EPA (AK, TX and IN). promulgated by EPA (AK, TX and IN).


2003 NSR Reform2003 NSR Reform NSR 2003 ReformsNSR 2003 Reforms

– Incorporates Equipment Replacement Provision (ERP) into Incorporates Equipment Replacement Provision (ERP) into RMRR exclusion.RMRR exclusion.

ERP exclusion applies if:ERP exclusion applies if:– It involves replacement of an existing component with an It involves replacement of an existing component with an

identical or functionally equivalent component;identical or functionally equivalent component;

– Replacement cost is less than 20% of entire unit’s current Replacement cost is less than 20% of entire unit’s current replacement value;replacement value;

– Replacement does not change equipment’s basic design Replacement does not change equipment’s basic design parameters (BDP) and;parameters (BDP) and;

– Replacement does not cause emissions limits to be Replacement does not cause emissions limits to be exceeded.exceeded.


Litigation Litigation 2003 ERP Rule2003 ERP Rule

Lawsuit filed with D.C. Circuit Lawsuit filed with D.C. Circuit Court of Appeals Court of Appeals – State of New York, et. al. v. EPAState of New York, et. al. v. EPA, ,

(Case No. 03-1380).(Case No. 03-1380). On December 24, 2003 the Court On December 24, 2003 the Court

held in favor of held in favor of State/Environmental Group State/Environmental Group Motions for Emergency Stay.Motions for Emergency Stay.


Litigation Litigation 2003 ERP Rule2003 ERP Rule

Briefing scheduleBriefing schedule– Petitioners’ briefs due 90 days after EPA final Petitioners’ briefs due 90 days after EPA final

action on pending reconsideration (anticipated action on pending reconsideration (anticipated March 2005).March 2005).

Final action was to be taken by December 28, 2004 Final action was to be taken by December 28, 2004 on the reconsideration but is still outstanding. on the reconsideration but is still outstanding.

– EPA brief due 90 days after petitioners’ briefs due EPA brief due 90 days after petitioners’ briefs due (anticipated June 2005).(anticipated June 2005).

– Final briefs due 77 days after EPA brief due Final briefs due 77 days after EPA brief due (anticipated September 2005).(anticipated September 2005).

– Oral Argument (anticipated December Oral Argument (anticipated December 2005/January 2006).2005/January 2006).

– Decision (Anticipated July – December 2006).Decision (Anticipated July – December 2006).


Reconsideration Reconsideration NSR 2003NSR 2003

EPA granted request to reconsider certain EPA granted request to reconsider certain aspects of ERP.aspects of ERP.– Legal basis for ERP Legal basis for ERP

– Basis for selecting the cost threshold (20% of unit Basis for selecting the cost threshold (20% of unit replacement) replacement)

Initiated new public comment on July 1, 2004 Initiated new public comment on July 1, 2004 (final action to be taken within 180 days).(final action to be taken within 180 days).

EPA continues to believe that 2003 reform is EPA continues to believe that 2003 reform is legally justified.legally justified.


Other NSR IssuesOther NSR Issues IGCC as PSD BACT (COIGCC as PSD BACT (CO22))

Increments (Recent NOIncrements (Recent NOxx Increment Increment Rulemaking)Rulemaking)

FLM IssuesFLM Issues– Endangered Species IssuesEndangered Species Issues

Haze RulesHaze Rules NSR Transition in Nonattainment NSR Transition in Nonattainment

AreasAreas


Future NSR RulesFuture NSR Rules NSR in Ozone and PSD Nonattainment NSR in Ozone and PSD Nonattainment

Areas (NAAQS Rule Reconsideration)Areas (NAAQS Rule Reconsideration)

Aggregation of ProjectsAggregation of Projects

Debottlenecking and Emissions IncreaseDebottlenecking and Emissions Increase

ODS Significance LevelsODS Significance Levels

Fugitive Emissions (Severed from NSR Fugitive Emissions (Severed from NSR Reform Litigation)Reform Litigation)

FLAG IssuesFLAG Issues


NSR NSR Enforcement LitigationEnforcement Litigation

EPA began actively enforcing asserted EPA began actively enforcing asserted violations of the NSR regulations with regards violations of the NSR regulations with regards to the coal-fired electric utility industry in the to the coal-fired electric utility industry in the late 1990s. late 1990s.

EPA targets alleged modifications that EPA targets alleged modifications that increased production and/or emissions (GADS) increased production and/or emissions (GADS) for which no NSR permit was obtained.for which no NSR permit was obtained.

Factors examined in application of RMRRFactors examined in application of RMRR– the nature and extent of alleged modification,the nature and extent of alleged modification,– the purpose, the purpose, – the frequency, the frequency, – and the cost. and the cost.


Settled Enforcement Settled Enforcement CasesCases

As of March 2005, settlements As of March 2005, settlements have been entered into with nine have been entered into with nine companies operating coal-fired companies operating coal-fired power plants. power plants.

Settlements generally result in the Settlements generally result in the installation of required pollution installation of required pollution control devices, civil penalties and control devices, civil penalties and environmental mitigation projects. environmental mitigation projects.


Settled Enforcement CasesSettled Enforcement Cases

* Consent decrees filed but not yet approved.* Consent decrees filed but not yet approved.

◊ ◊ Consent decree stayed by court pending Consent decree stayed by court pending discovery.discovery.

Company/Company/UnitsUnits

SettlementSettlement

DateDate

PenaltiesPenalties PollutionPollution

Control CostControl Cost

EnvironmentaEnvironmental Mitigationl Mitigation

TECo/10TECo/10 Feb. 2000Feb. 2000 $3.5 mil.$3.5 mil. ~$1 bil.~$1 bil. ~$10-11 mil.~$10-11 mil.

PSE & G /4PSE & G /4 Jan. 2002Jan. 2002 $1.4 mil.$1.4 mil. ~$337 mil.~$337 mil. ~$6 mil.~$6 mil.

VEPCo/20VEPCo/20 April 2003April 2003 $5.3 mil.$5.3 mil. ~$1.2 bil.~$1.2 bil. ~$13.9 mil.~$13.9 mil.

WEPCo ◊ /23WEPCo ◊ /23 April 2003April 2003 $3.1 mil.$3.1 mil. ~$600 mil.~$600 mil. ~$20-25 mil.~$20-25 mil.

SIGECo/3SIGECo/3 June 2003June 2003 $0.6 mil.$0.6 mil. ~$22 mil.~$22 mil. ~$2.5 mil.~$2.5 mil.

Santee Santee Cooper*/12Cooper*/12

June 2004June 2004 $2.0 mil.$2.0 mil. ~$400 mil. ~$400 mil. ~$4.5 mil.~$4.5 mil.

Mirant/12Mirant/12 Sept. 2004Sept. 2004 $0.5 mil.$0.5 mil. ~$133 mil.~$133 mil. ~$1 mil.~$1 mil.

Illinois PowerIllinois Power March 2005March 2005 $9 mil.$9 mil. ~500 mil~500 mil ~$15 mil.~$15 mil.

Ohio EdisonOhio Edison March 2005March 2005 $8.5 mil$8.5 mil ~$1.1 bill~$1.1 bill ~$10 mil~$10 mil


Pending NSR Pending NSR Enforcement CasesEnforcement Cases

Currently EPA has eight enforcement lawsuits Currently EPA has eight enforcement lawsuits pending against coal-fired electric utilities. pending against coal-fired electric utilities. – Two settled in March. Two settled in March.

Additionally, EPA issued a NOV to Westar Additionally, EPA issued a NOV to Westar Energy, Inc. in early 2004, a NOV to Indiana Energy, Inc. in early 2004, a NOV to Indiana Public Service Co. in September 2004, and a Public Service Co. in September 2004, and a NOV against Louisiana Generating on February NOV against Louisiana Generating on February 15, 2005. 15, 2005.

EPA Continues To Issue Section 114 EPA Continues To Issue Section 114 Information Requests (Region VI and Region IV)Information Requests (Region VI and Region IV)


Enforcement Utility Cases Enforcement Utility Cases Scheduled for TrialScheduled for Trial

Alabama PowerAlabama Power Briefing on standards for RMRR test and emissions rate test due Briefing on standards for RMRR test and emissions rate test due October 13, 2004. Trial expected August 2006.October 13, 2004. Trial expected August 2006.

AEPAEP Currently in mediation. Trial expected June 2005Currently in mediation. Trial expected June 2005

CinergyCinergy Trial scheduled 2006.Trial scheduled 2006.

Duke EnergyDuke Energy Summary judgment granted for industry in August 2003. Summary judgment granted for industry in August 2003. Appeal to Fourth Circuit. Argued Feb. 3, 2005.Appeal to Fourth Circuit. Argued Feb. 3, 2005.

East Kentucky East Kentucky Complaint filed January 2004 and answered June 2004. Liability Complaint filed January 2004 and answered June 2004. Liability trial set for December 2005.trial set for December 2005.

Georgia PowerGeorgia Power Administratively terminated (can be reactivated).Administratively terminated (can be reactivated).

Illinois PowerIllinois Power Liability trial ended June 2003. Decision anticipated 2005. Liability trial ended June 2003. Decision anticipated 2005. Settled March 2005Settled March 2005..

Ohio EdisonOhio Edison Judgment granted for EPA July 2003. Remedy trial to begin in Judgment granted for EPA July 2003. Remedy trial to begin in January 2005 pushed back. January 2005 pushed back. Settled March 2005Settled March 2005..

TVATVA Administrative order case dismissed by District Court. Supreme Administrative order case dismissed by District Court. Supreme Court denied certiorari.Court denied certiorari.


Recent DecisionsRecent Decisions Ohio EdisonOhio Edison (Judge Sargus) and (Judge Sargus) and Southern Southern

Indiana Gas & Electric Co.Indiana Gas & Electric Co. (Judge McKinney) (Judge McKinney) courts upheld EPA’s interpretation of RMRR. courts upheld EPA’s interpretation of RMRR. – Routine determined within the unit.Routine determined within the unit.

– Emissions increases not based on unit’s hourly Emissions increases not based on unit’s hourly emissions rates, but based on total annual emissions emissions rates, but based on total annual emissions (GADS).(GADS).

See See United States v. Ohio Edison CoUnited States v. Ohio Edison Co., 276 F. ., 276 F. Supp. 2d 829, 859 (S.D. Ohio 2003) and Supp. 2d 829, 859 (S.D. Ohio 2003) and United United States v. Southern Ind. Gas & Elec. CoStates v. Southern Ind. Gas & Elec. Co., 245 F. ., 245 F. Supp. 2d 994, 1009 (S.D. Ind. 2003).Supp. 2d 994, 1009 (S.D. Ind. 2003).


Recent DecisionsRecent Decisions Duke EnergyDuke Energy (Judge Bullock) (Judge Bullock)

– Routine determined within the industry. Routine determined within the industry.

– EPA has burden to show that the facility change EPA has burden to show that the facility change does not fall within the RMRR exclusion. does not fall within the RMRR exclusion.

– Emissions increases based on unit’s hourly Emissions increases based on unit’s hourly emissions rates not on total annual emissions emissions rates not on total annual emissions (GADS). (GADS).

– Court held, in opposition to the majority of cases, Court held, in opposition to the majority of cases, that a violation of NSR requirements is an on-going that a violation of NSR requirements is an on-going violation rather than a one-time violation. violation rather than a one-time violation.

Decision on appeal argued February 3, 2005 Decision on appeal argued February 3, 2005 ((U.S. v. Duke Energy, Case No. 04-1763 , 4U.S. v. Duke Energy, Case No. 04-1763 , 4thth Circ.)Circ.) Decision expected spring/summer 2005. Decision expected spring/summer 2005.


Citizen’s SuitCitizen’s SuitEnforcement CasesEnforcement Cases

September 21, 2004, Sierra Club issued a September 21, 2004, Sierra Club issued a complaint to the owners of the Stuart complaint to the owners of the Stuart Plant in Ohio for NSR violations. Plant in Ohio for NSR violations.

– Allegations include many routine replacements Allegations include many routine replacements not traditionally included in Complaint.not traditionally included in Complaint.

– Alleges both major modifications under PSD, Alleges both major modifications under PSD, SIP, NSPS (D and Da) and opacity violations.SIP, NSPS (D and Da) and opacity violations.


Citizen’s Suit NSR Citizen’s Suit NSR Enforcement CasesEnforcement Cases

CompanyCompany Citizen’s GroupCitizen’s Group StatusStatus

Niagara Mohawk Power Niagara Mohawk Power Corp.Corp.

State of New YorkState of New York Liability trial set for Liability trial set for March 2006.March 2006.

TVA (Cobalt Plant – TVA (Cobalt Plant – Alabama)Alabama)

Nat’l Parks Conservation Nat’l Parks Conservation Assn. Assn.

Summary judgment Summary judgment granted for TVA granted for TVA September 2004.September 2004.

TVA (Bull Run Plant – TN)TVA (Bull Run Plant – TN) Nat’l Parks Conservation Nat’l Parks Conservation Assn.Assn.

Trial set for September Trial set for September 2005. 2005.

Tucson Electric Power Tucson Electric Power Co. (TEPCo)Co. (TEPCo)

Grand Canyon TrustGrand Canyon Trust Ninth Circuit vacated Ninth Circuit vacated and remanded decision and remanded decision favoring TEPCo. favoring TEPCo. Rehearing on decision Rehearing on decision being sought. being sought.

Stuart Plant: Dayton Stuart Plant: Dayton Power & Light, Cincinnati Power & Light, Cincinnati General & Elec. Co., and General & Elec. Co., and Columbus Southern Columbus Southern Power Co. Power Co.

Sierra ClubSierra Club Complaint filed Complaint filed September 2004.September 2004.


Recent DecisionsRecent Decisions Tucson Electric Power CompanyTucson Electric Power Company

– Remanded favorable decision to Remanded favorable decision to defendant. defendant.

Tennessee Valley Authority (TVA - Tennessee Valley Authority (TVA - Cobalt Plant)Cobalt Plant)

– Granted summary judgment in favor of Granted summary judgment in favor of TVA finding that no evidence indicated TVA finding that no evidence indicated TVA was in violation of the CAA.TVA was in violation of the CAA.


Effect of NSR 2003Effect of NSR 2003

EPA states that the 2003 ERP regulation EPA states that the 2003 ERP regulation is not retroactive and should have no is not retroactive and should have no impact on ongoing litigation or impact on ongoing litigation or settlement negotiations. EPA IG settlement negotiations. EPA IG disagrees.disagrees.

Industry believes that EPA’s underlying Industry believes that EPA’s underlying legal arguments in the enforcement legal arguments in the enforcement and settlement actions have been and settlement actions have been weakened. weakened.


Future NSR Future NSR EnforcementEnforcement

EPA has stated that it will still enforce NSR EPA has stated that it will still enforce NSR under the “old” reinterpreted NSR regulations.under the “old” reinterpreted NSR regulations.

Some, including EPA IG, note NSR enforcement Some, including EPA IG, note NSR enforcement since October 2003 has involved only those since October 2003 has involved only those facilities that violate the new rule (recent facilities that violate the new rule (recent NOVs issued under reinterpreted standards). NOVs issued under reinterpreted standards).

EPA document leaked to the press in July 2004 EPA document leaked to the press in July 2004 lists with between 14 and 22 utility companies lists with between 14 and 22 utility companies that the EPA has referred to the DOJ for that the EPA has referred to the DOJ for enforcement or for which NOVs are pending.* enforcement or for which NOVs are pending.*

** The accuracy of this document cannot be authenticated. The accuracy of this document cannot be authenticated.


Title V UpdateTitle V Update NODs Issued To A Dozen State Programs in 1999-NODs Issued To A Dozen State Programs in 1999-

2000, But All Programs Now Approved Despite 2000, But All Programs Now Approved Despite Some Citizens’ Petitions Alleging Additional Some Citizens’ Petitions Alleging Additional Program InsufficienciesProgram Insufficiencies

90% of All Title V Permits Issued90% of All Title V Permits Issued

– 10% remaining are generally large integrated 10% remaining are generally large integrated refineries and chemical plantsrefineries and chemical plants

20% of All Permits in Renewal Phase 20% of All Permits in Renewal Phase

Multiple Permits On Appeal In Individual StatesMultiple Permits On Appeal In Individual States

Approx. 5 Dozen Permits Petitioned On By Approx. 5 Dozen Permits Petitioned On By Environmental Groups and Before EPA Environmental Groups and Before EPA AdministratorAdministrator


Issues on RenewalIssues on Renewal Compliance Assurance Monitoring Compliance Assurance Monitoring

(“CAM”) Plans(“CAM”) Plans

PSD/NSR/Minor NSRPSD/NSR/Minor NSR

Incorporation of MACT Standards Incorporation of MACT Standards (now less of an issue for most (now less of an issue for most utilities)utilities)

Monitoring, Notwithstanding EPA Monitoring, Notwithstanding EPA 2004 “Umbrella Monitoring” Rule2004 “Umbrella Monitoring” Rule


EPA Title V Task ForceEPA Title V Task Force

Purpose – To make Purpose – To make recommendations to Federal recommendations to Federal Clean Air Act Advisory Committee Clean Air Act Advisory Committee by August 2005by August 2005

MembershipMembership

Public HearingsPublic Hearings

Docket Closed March 31, 2005Docket Closed March 31, 2005


Issues Raised During Title V Issues Raised During Title V Task Force HearingsTask Force Hearings

Inadequate MonitoringInadequate Monitoring Change Management (keeping permit current)Change Management (keeping permit current) Title I and Title V (NSR/Old SIPs)Title I and Title V (NSR/Old SIPs) Incorporation by ReferenceIncorporation by Reference Public ProcessesPublic Processes Statement of BasisStatement of Basis Compliance SchedulesCompliance Schedules SSMsSSMs Compliance CertificationsCompliance Certifications


IG Report On Title VIG Report On Title VMarch 2005March 2005

““Substantial Changes Needed in Substantial Changes Needed in Implementation and Oversight of Title V Implementation and Oversight of Title V Permits If Program Goals Are To Be Permits If Program Goals Are To Be Fully Realized” (Report No. 20050P-Fully Realized” (Report No. 20050P-00010) 00010) March 9, 2005.March 9, 2005.

T-V Program partially successful in T-V Program partially successful in encouraging accountability, encouraging accountability, enforceability, (emission reductions?)enforceability, (emission reductions?)


IG CriticismsIG Criticisms Permits Clarity (incorporation by Permits Clarity (incorporation by

reference is a problem, permit reference is a problem, permit organization poor, missing citations)organization poor, missing citations)

Statements of Basis Missing for Most Statements of Basis Missing for Most Applicable RequirementsApplicable Requirements

Monitoring InadequateMonitoring Inadequate

Annual Compliance Certifications VaryAnnual Compliance Certifications Vary

Practical Enforceability ConcernsPractical Enforceability Concerns


Title V OutcomesTitle V Outcomes 1992 Litigation1992 Litigation

1996 Permit Revision Proposed Rule1996 Permit Revision Proposed Rule

Umbrella Monitoring Rule, and New Umbrella Monitoring Rule, and New §§ 70.6 rulemakings 70.6 rulemakings

Compliance Certification Guidance??Compliance Certification Guidance??

Credible Evidence and Compliance Credible Evidence and Compliance CertificationsCertifications


ConclusionsConclusions NSR – What Happens When The NSR – What Happens When The

Courts Weigh InCourts Weigh In NSR – State Discretion To Pare NSR – State Discretion To Pare

Back NSR ReformsBack NSR Reforms– EPA “Substantive Equivalence” Test EPA “Substantive Equivalence” Test – Indiana, the test case?Indiana, the test case?

Title V – Settled, But UnsettledTitle V – Settled, But Unsettled– Compliance CertificationsCompliance Certifications– MonitoringMonitoring

leslie s. ritts, partner [email protected] 1 new source review & title v permit update: american...

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