1150 Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 70 and 71 

[EPA–HQ–OAR–2023–0401; FRL–9118–01– 

OAR] 

RIN 2060–AV61 

Clarifying the Scope of ‘‘Applicable 

Requirements’’ Under State Operating 

Permit Programs and the Federal 

Operating Permit Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) proposes to update its 

title V operating permit program 

regulations to more clearly reflect the 

EPA’s existing interpretations and 

policies concerning when and whether 

‘‘applicable requirements’’ established 

in other Clean Air Act (CAA or the Act) 

programs should be reviewed, modified, 

and/or implemented through the title V 

operating permits program. Specifically, 

this action clarifies the limited 

situations in which requirements under 

the New Source Review (NSR) 

preconstruction permitting program 

would be reviewed using the EPA’s 

unique title V oversight authorities. 

Additionally, this action clarifies that 

requirements related to an owner or 

operator’s general duty to prevent 

accidental releases of hazardous 

substances are not ‘‘applicable 

requirements’’ for title V purposes and 

are not implemented through title V. 

DATES: Comments: Comments must be 

received on or before March 11, 2024. 

Public hearing: If anyone contacts the 

EPA requesting a public hearing by 

January 15, 2024, the EPA will hold a 

virtual public hearing. Please refer to 

the SUPPLEMENTARY INFORMATION section 

for additional information on requesting 

and registering for a public hearing. 

ADDRESSES: You may send comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2023–0401, by any of the 

following methods: 

• Federal eRulemaking Portal: 

https://www.regulations.gov (our 

preferred method). Follow the online 

instructions for submitting comments. 

• Email: a-and-r-docket@epa.gov. 

Include Docket ID No. EPA–HQ–OAR– 

2023–0401 in the subject line of the 

message. 

• Fax: (202) 566–9744. Attention 

Docket ID No. EPA–HQ–OAR–2023– 

0401. 

• Mail: U.S. Environmental 

Protection Agency, EPA Docket Center, 

OAR Docket, Mail Code 28221T, 1200 

Pennsylvania Avenue NW, Washington, 

DC 20460. 

• Hand Delivery or Courier: EPA 

Docket Center, WJC West Building, 

Room 3334, 1301 Constitution Avenue 

NW, Washington, DC 20004. The Docket 

Center’s hours of operations are 8:30 

a.m.–4:30 p.m., Monday–Friday (except 

Federal Holidays). 

Instructions: All submissions received 

must include the Docket ID No. for this 

rulemaking. Comments received may be 

posted without change to https://

www.regulations.gov, including any 

personal information provided. For 

detailed instructions on sending 

comments and additional information 

on the rulemaking process, see the 

SUPPLEMENTARY INFORMATION section of 

this document. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Matthew Spangler, Air Quality Policy 

Division, Office of Air Quality Planning 

and Standards (C504–05), 

Environmental Protection Agency, 

Research Triangle Park, NC; telephone 

number: (919) 541–0327; email address: 

spangler.matthew@epa.gov. 

SUPPLEMENTARY INFORMATION: The 

Information presented in this document 

is organized as follows: 

I. Public Participation in This Proposed 

Rulemaking 

A. Does this action apply to me? 

B. Where can I get a copy of this document 

and other related information? 

C. What should I consider as I prepare my 

comments? 

D. How do I request and participate in a 

virtual public hearing? 

II. Purpose of This Regulatory Action 

III. Background on Title V Operating Permits 

and CAA ‘‘Applicable Requirements’’ 

A. The Title V Permitting Process, Public 

Participation, and the EPA’s Oversight 

Role 

B. Purpose and Function of Title V Permits 

C. Regulatory Definition of ‘‘Applicable 

Requirements’’ 

D. Requirements That Are Not ‘‘Applicable 

Requirements’’ for Purposes of Title V 

Permitting 

E. Self-Implementing Applicable 

Requirements (e.g., NSPS, NESHAP) 

F. Requirements Defined Through Title V 

Permitting 

G. Applicable Requirements Related to the 

NAAQS and SIPs 

IV. Interface Between NSR and Title V 

Permitting 

A. Background: Historical and Current EPA 

Positions 

B. Proposed Action 

C. Interaction With NSR Permitting, 

Oversight, and Enforcement 

D. Impacts of Proposed Action 

E. Rationale for Proposed Action 

F. Alternative Approaches 

V. The General Duty Clause Concerning the 

Prevention of Accidental Releases of 

Hazardous Substances 

A. Background and Summary of Proposed 

Action 

B. Rationale for Proposed Action 

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review, Executive Order 

13563: Improving Regulation and 

Regulatory Review, and Executive Order 

14094: Modernizing Regulatory Review 

B. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations and Executive Order 14096: 

Revitalizing Our Nation’s Commitment 

to Environmental Justice for All 

VII. Statutory Authority 

I. Public Participation in This Proposed 

Rulemaking 

A. Does this action apply to me? 

Entities potentially affected by this 

proposed rulemaking include state, 

local, and Tribal air pollution control 

agencies that administer title V 

operating permit programs (‘‘permitting 

authorities’’), owners and operators of 

emissions sources in all industry groups 

who hold or apply for title V operating 

permits, and any person or group who 

participates in the title V permitting 

process. 

B. Where can I get a copy of this 

document and other related 

information? 

The EPA has established a docket for 

this rulemaking under Docket ID No. 

EPA–HQ–OAR–2023–0401. All 

documents in the docket pertaining to 

this action are listed on the https://

www.regulations.gov website. Although 

listed in the index, some information 

may not be publicly available, e.g., 

Confidential Business Information (CBI), 

Proprietary Business Information (PBI), 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the internet and may be 

viewed with prior arrangement with the 

EPA Docket Center. In addition to being 

available in the docket, an electronic 

copy of this Federal Register document 

will be posted at https://www.epa.gov/ 

title-v-operating-permits/currentregulations-and-regulatory-actions. 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 1151 

Additionally, a number of documents 

that are relevant to this proposed 

action—in particular, prior EPA orders 

responding to petitions challenging 

individual title V permits—are available 

through the EPA’s website at https://

www.epa.gov/title-v-operating-permits/ 

title-v-petition-database. 

C. What should I consider as I prepare 

my comments? 

Submit your comments, identified by 

Docket ID No. EPA–HQ–OAR–2023– 

0401, at https://www.regulations.gov 

(our preferred method), or the other 

methods identified in the ADDRESSES

section. Once submitted, comments 

cannot be edited or removed from the 

docket. The EPA may publish any 

comment received to its public docket. 

Do not submit information containing 

CBI to the EPA through https://

www.regulations.gov. Clearly mark the 

part or all of the information that you 

claim to be CBI. For CBI information on 

any digital storage media that you mail 

to the EPA, mark the outside of the 

digital storage media as CBI and then 

identify electronically within the digital 

storage media the specific information 

that is claimed as CBI. In addition to 

one complete version of the comments 

that includes information claimed as 

CBI, you must submit a copy of the 

comments that does not contain the 

information claimed as CBI directly to 

the public docket through the 

procedures outlined in Instructions. If 

you submit any digital storage media 

that does not contain CBI, mark the 

outside of the digital storage media 

clearly that it does not contain CBI. 

Information not marked as CBI will be 

included in the public docket and the 

EPA’s electronic public docket without 

prior notice. Information marked as CBI 

will not be disclosed except in 

accordance with procedures set forth in 

40 Code of Federal Regulations (CFR) 

part 2. Our preferred method to receive 

CBI is for it to be transmitted 

electronically using email attachments, 

File Transfer Protocol (FTP), or other 

online file sharing services (e.g., 

Dropbox, OneDrive, Google Drive). 

Electronic submissions must be 

transmitted directly to the OAQPS CBI 

Office using the email address, 

oaqpscbi@epa.gov, and should include 

clear CBI markings as described later. If 

assistance is needed with submitting 

large electronic files that exceed the file 

size limit for email attachments, and if 

you do not have your own file sharing 

service, please email oaqpscbi@epa.gov 

to request a file transfer link. If sending 

CBI information through the postal 

service, please send it to the following 

address: OAQPS Document Control 

Officer (C404–02), OAQPS, U.S. 

Environmental Protection Agency, 

Research Triangle Park, North Carolina 

27711, Attention Docket ID No. EPA– 

HQ–OAR–2023–0401. The mailed CBI 

material should be double wrapped and 

clearly marked. Any CBI markings 

should not show through the outer 

envelope. 

D. How do I request and participate in 

a virtual public hearing? 

To request a virtual public hearing, 

contact Ms. Pam Long at (919) 541–0641 

or by email at long.pam@epa.gov by 

January 15, 2024. If requested, the 

virtual hearing will be held on January 

24, 2024. The hearing will convene at 

9:00 a.m. Eastern Time (ET) and will 

conclude at 3:00 p.m. ET. The EPA may 

close a session 15 minutes after the last 

pre-registered speaker has testified if 

there are no additional speakers. The 

EPA will announce further details at 

https://www.epa.gov/title-v-operatingpermits. 

Upon publication of this document in 

the Federal Register, the EPA will begin 

pre-registering speakers for the hearing, 

if a hearing is requested. To register to 

speak at the virtual hearing, please use 

the online registration form available at 

https://www.epa.gov/title-v-operatingpermits or contact Ms. Pam Long at 

(919) 541–0641 or by email at 

long.pam@epa.gov. The last day to preregister to speak at the hearing will be 

January 22, 2024. Prior to the hearing, 

the EPA will post a general agenda that 

will list pre-registered speakers in 

approximate order at: https://

www.epa.gov/title-v-operating-permits. 

The EPA will make every effort to 

follow the schedule as closely as 

possible on the day of the hearing; 

however, please plan for the hearing to 

run either ahead of schedule or behind 

schedule. 

Each commenter will have 3 minutes 

to provide oral testimony. The EPA 

encourages commenters to provide the 

EPA with a copy of their oral testimony 

electronically (via email) by emailing it 

to long.pam@epa.gov. The EPA also 

recommends submitting the text of your 

oral testimony as written comments to 

the rulemaking docket. 

The EPA may ask clarifying questions 

during the oral presentations but will 

not respond to the presentations at that 

time. Written statements and supporting 

information submitted during the 

comment period will be considered 

with the same weight as oral testimony 

and supporting information presented at 

the public hearing. 

Please note that any updates made to 

any aspect of the hearing will be posted 

online at https://www.epa.gov/title-voperating-permits. While the EPA 

expects the hearing to go forward as set 

forth earlier, please monitor our website 

or contact Ms. Pam Long at (919) 541– 

0641 or by email at long.pam@epa.gov 

to determine if there are any updates. 

The EPA does not intend to publish a 

document in the Federal Register 

announcing updates. 

If you require the services of a 

translator or special accommodations 

such as audio description, please preregister for the hearing with Ms. Pam 

Long and describe your needs by 

January 16, 2024. The EPA may not be 

able to arrange accommodations without 

advanced notice. 

II. Purpose of This Regulatory Action 

This rulemaking concerns the 

relationship between the CAA’s title V 

operating permit program and certain 

types of ‘‘applicable requirements’’ 

established under different sections of 

the CAA. Many of the EPA’s past 

statements on this topic are included 

within the EPA Administrator’s 

responses to citizen petitions 

challenging title V permits issued to 

individual facilities. Though publicly 

available, these Orders may not be 

widely read by members of the public 

and/or permitting authorities. This 

rulemaking is intended to bring greater 

awareness to the EPA’s current 

approach to ‘‘applicable requirements’’ 

within the context of title V so that the 

public, permitting authorities, and the 

EPA can focus their resources on using 

the title V permitting process to address 

issues that can be most effectively 

resolved through title V. Specifically, 

this proposed rule addresses three 

issues that have been the source of 

public interest and, at times, 

misunderstanding. This rule also 

proposes to update the EPA’s 

regulations to better express the EPA’s 

existing positions on these topics. 

First, section III. of this preamble 

includes background on the EPA’s 

existing position regarding general 

topics involving ‘‘applicable 

requirements,’’ which the EPA does not 

propose to change. In summary, the title 

V operating permit program is a vehicle 

for compiling air quality control 

requirements from other CAA programs 

and for providing conditions necessary 

to assure compliance with such 

requirements, but it is not a vehicle for 

creating or changing applicable 

requirements from those other 

programs. The EPA has a regulatory 

definition of the term ‘‘applicable 

requirement’’ that guides the interaction 

between title V and other CAA 

programs. Some programs establish 

‘‘self-implementing’’ requirements that 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
1152 Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 

1By contrast, the EPA is proposing to revise the 

EPA’s regulations to more clearly reflect the EPA’s 

positions regarding the issues discussed in sections 

IV. and V. of this preamble. 

2For information about EPA oversight over the 

content and implementation of EPA-approved state 

part 70 programs, see 42 U.S.C. 7661a(i) and 40 CFR 

70.10. 

3Under 40 CFR part 71, the EPA (or an agency 

delegated to issue permits on EPA’s behalf) issues 

title V permits to sources in most areas of Indian 

Country, on the Outer Continental Shelf, 

can be incorporated into title V permits 

without further review. Other programs 

contain only general requirements that 

can, in certain circumstances, be further 

defined through title V. Section III.G. of 

this preamble summarizes existing EPA 

positions about how these concepts 

affect requirements related to the 

National Ambient Air Quality Standards 

(NAAQS) and State Implementation 

Plans (SIPs). 

Second, Section IV. of this preamble 

addresses the intersection between title 

V operating permits and NSR 

preconstruction permits issued under 

title I of the CAA and focuses on the 

limited situations in which NSR 

requirements would be reviewed using 

the EPA’s unique title V oversight 

authorities. 

Section IV.A. discusses the EPA’s 

historical and current positions on the 

intersection between permits issued 

under title I and title V, which have 

changed over time. Section IV.B. 

explains in more detail the EPA’s 

existing position, which the EPA 

proposes to codify through this 

rulemaking. In summary, the EPA’s 

current position is that provided a 

source obtains an NSR permit under 

EPA-approved (or EPA-promulgated) 

title I rules, with public notice and the 

opportunity for comment and judicial 

review, such NSR permit establishes the 

NSR-related ‘‘applicable requirements’’ 

of the SIP (or Federal Implementation 

Plan, FIP) for purposes of incorporation 

into a title V permit. As with 

‘‘applicable requirements’’ established 

under other CAA authorities, the EPA 

would not revisit those NSR permitting 

decisions through the title V process. 

The EPA’s framework applies similarly 

regardless of: (i) the stage of the title V 

permitting or oversight process at issue; 

(ii) the NSR permit’s origin (i.e., from a 

SIP or a FIP), (iii) the type of substantive 

NSR requirement at issue (e.g., NSR 

permit terms or major NSR 

applicability); and (iv) the procedures 

by which the NSR permit is 

incorporated into the title V permit (e.g., 

sequentially or concurrently issued 

permits). However, there are situations 

in which the title V permitting process 

is the appropriate venue for addressing 

NSR permitting issues, including where 

NSR requirements have not been 

established through a sufficient title I 

permitting process, or where NSR issues 

and title V issues involve substantive 

overlap. Although the EPA believes that 

the existing regulations may properly be 

read to support the EPA’s existing 

position, the EPA proposes amendments 

to make this position more explicit. 

Updating the EPA’s regulations will 

allow the agency to apply its existing 

approach nationwide and will resolve 

issues stemming from conflicting court 

decisions from two federal Courts of 

Appeals. 

Section IV.C. discusses the extent to 

which this proposal will (or will not) 

impact NSR permitting, NSR oversight 

tools, and NSR enforcement tools. 

Section IV.D. further discusses the 

limited impacts this proposed rule is 

expected to have on the EPA, permitting 

authorities, regulated entities, and the 

public. Overall, this proposed rule is 

meant to provide clarity about the 

appropriate mechanisms that should be 

used to address concerns with NSR 

permits. This proposed rule should 

create an incentive for permitting 

authorities to offer opportunities for 

meaningful public involvement in NSR 

permitting actions, and should 

encourage the public to take advantage 

of those opportunities (instead of 

attempting to use title V oversight tools 

to resolve concerns with NSR permits). 

Section IV.E. details the EPA’s legal 

and policy rationale for the EPA’s 

existing (and proposed to be codified) 

position. In sum, the EPA’s 

interpretation is supported by the text of 

title V, the structure and purpose of title 

V, and the structure of the CAA as a 

whole. The EPA has the discretion 

under the statute to apply this approach, 

which reflects better policy than 

alternative approaches. This proposed 

rule ensures that applicable 

requirements established in different 

CAA programs are treated consistently 

in title V permitting. The EPA’s 

proposal better accounts for procedural, 

resource-related, and practical 

limitations associated with title V 

oversight tools while incentivizing the 

use of proper title I avenues of review. 

Lastly, this approach respects the 

finality of NSR permitting decisions. 

Section IV.F. solicits comment on 

three alternative approaches that would 

involve using title V permits to address 

substantive NSR issues in additional, 

targeted situations, while explaining 

why these alternatives are not preferred 

by the EPA. 

Third, Section V. of this preamble 

addresses a distinct and severable topic 

related to the ‘‘General Duty Clause’’ of 

CAA section 112(r)(1), which concerns 

the prevention of accidental releases of 

hazardous substances. This proposal 

seeks to codify the EPA’s wellestablished position that this General 

Duty Clause is not an ‘‘applicable 

requirement’’ and is not implemented 

through title V. 

III. Background on Title V Operating 

Permits and CAA ‘‘Applicable 

Requirements’’ 

This section of the preamble contains 

background information about the title 

V program and explains how different 

types of ‘‘applicable requirements’’ of 

the CAA are treated in title V permits. 

This discussion is intended to clarify 

multiple related topics that may have 

been a source of confusion to the public, 

regulated entities, and permitting 

authorities over the years. The EPA is 

not proposing any changes to the 

agency’s longstanding interpretations or 

policies discussed in this section. The 

EPA also considers these interpretations 

and policies to be consistent with, and 

accurately reflected in, the EPA’s 

existing regulations in 40 CFR parts 70 

and 71. Thus, the EPA is not proposing 

to revise the EPA’s regulations in order 

to reflect these existing interpretations 

and policies.1

A. The Title V Permitting Process, 

Public Participation, and the EPA’s 

Oversight Role 

Congress amended the CAA in 1990 

to add, among other provisions, title V. 

CAA Amendments of 1990, Public Law 

101–549, sections 501–507, 104 Stat. 

2399, 2635–48 (1990) (codified at 42 

U.S.C. 7661–7661f). Title V established 

an operating permit program for major 

sources of air pollution and certain 

other sources. 

The title V program, like other 

provisions of the CAA, involves an 

exercise of cooperative federalism, 

meaning that responsibility for the 

program is divided between states and 

the EPA. Under title V, states were 

required to develop and submit to the 

EPA for approval title V permitting 

programs consistent with requirements 

promulgated by the EPA in 40 CFR part 

70. 42 U.S.C. 7661a(b), (d).2 Most states, 

certain local agencies, and one Tribe 

now have approved part 70 programs. 

Under these EPA-approved state 

programs, permitting authorities issue 

the vast majority of title V permits (this 

preamble refers to such permits as 

‘‘state-issued’’ permits). The EPA 

directly issues title V permits only in 

limited circumstances.3


khammond on DSKJM1Z7X2PROD with PROPOSALS2
Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 1153 

jurisdictions where the EPA has determined that a 

state has not adequately implemented its part 70 

program, and for specific sources where a state has 

not satisfied an EPA objection to, or reopening of, 

a state-issued permit. See 40 CFR 71.4. 

4For more information about title V petitions, see 

the preambles of the proposed and final petitions 

rule, 81 FR 57822 (Aug. 24, 2016) and 85 FR 6431 

(Feb. 5, 2020). Copies of petitions and the EPA’s 

petition orders are available on the EPA’s public 

title V petitions database, https://www.epa.gov/titlev-operating-permits/title-v-petition-database. 

5The EPA’s regulations also define the specific 

‘‘applicable requirements’’ with which each title V 

permit must assure compliance. 40 CFR 70.2, 71.2. 

The definition and concept of ‘‘applicable 

requirements’’ are discussed in more detail later in 

this preamble. 

6See 42 U.S.C. 7661c(c); 40 CFR 70.6(c)(1); Sierra 

Club v. EPA, 536 F.3d 673, 674–45, 680 (D.C. Cir. 

2008) (‘‘Title V did more than require the 

compilation in a single document of existing 

applicable emission limits and monitoring 

requirements. It also mandated that ‘[e]ach permit 

issued under [Title V] shall set forth . . . 

monitoring . . . requirements to assure compliance 

with the permit terms and conditions.’ . . . [T]he 

Act requires: a permitting authority may 

supplement an inadequate monitoring requirement 

so that the requirement will ‘assure compliance 

with the permit terms and conditions.’ ’’ (citations 

omitted)); see also, e.g., In the Matter of CITGO 

Refining and Chemicals Co., L.P., West Plant, Order 

on Petition No. VI–2007–01 at 6–8 (May 28, 2009). 

7See 42 U.S.C. 7661c(a), (b), (c); 40 CFR 

70.6(a)(1), (a)(3), (c), 71.6(a)(1), (a)(3), (c); see also, 

e.g., In the Matter of Suncor Energy (U.S.A.), Inc., 

Commerce City Refinery, Plant 2 (East), Order on 

Petition Nos. VIII–2022–13 & VIII–2022–14 at 13– 

17 (July 31, 2023) (Suncor East Order). 

Most title V permit actions (including 

initial permits, renewal permits, and 

significant permit modifications) 

involve public notice and an 

opportunity for comment and a hearing 

on draft permits and revisions. See 42 

U.S.C. 7661a(b)(6); 40 CFR 

70.4(d)(3)(iv), 70.7(h). These 

opportunities are similar to those 

provided in other CAA programs. 

Additionally, Congress provided the 

EPA and the public with unique 

oversight tools for state-issued title V 

permits. The CAA requires permitting 

authorities to submit a proposed title V 

permit to the EPA Administrator for 

review for a 45-day review period before 

issuing the permit as final. 42 U.S.C. 

7661d(a)(1); 40 CFR 70.8(a). The 

Administrator shall object to issuance of 

a proposed permit within that 45-day 

review period if the Administrator 

determines that the permit does not 

satisfy applicable requirements of the 

CAA or the requirements of part 70. 42 

U.S.C. 7661d(b)(1); 40 CFR 70.8(c). If the 

Administrator does not object to a 

permit during the 45-day EPA review 

period, any person may petition the 

Administrator within 60 days after the 

expiration of the 45-day review period 

to take such action (hereinafter ‘‘title V 

petition’’ or ‘‘petition’’). 42 U.S.C. 

7661d(b)(2), 40 CFR 70.8(d), 70.12, 

70.13, 70.14. Many of the issues 

concerning ‘‘applicable requirements’’ 

that are addressed in this rulemaking 

have been raised, and addressed, in title 

V petitions and the EPA’s orders 

responding to such petitions.4

The CAA also provides the EPA with 

the authority—at the agency’s 

discretion—to determine that cause 

exists to ‘‘terminate, modify, or revoke 

and reissue’’ a state-issued title V 

permit. 42 U.S.C. 7661d(e). This process 

is often called ‘‘reopening for cause’’ 

and is described in 40 CFR 70.7(f) and 

(g). Among other criteria, a permit may 

be reopened for cause when necessary 

to assure compliance with applicable 

requirements. 40 CFR 70.7(f)(1)(iv). 

Although this proposed rule is 

primarily focused on the EPA’s 

oversight of state-issued title V permits, 

the concepts discussed in this preamble 

related to ‘‘applicable requirements’’ are 

relevant to nearly all aspects of the title 

V permitting process in some shape or 

form. For example, these concepts guide 

the information that permittees must 

include in title V permit applications, 

the required content of title V permits 

drafted and issued by permitting 

authorities (including the EPA), the 

scope of issues properly subject to the 

public’s input during the title V 

permitting process, and the scope of 

issues considered by the EPA in 

exercising its oversight roles (including 

the EPA’s review of title V permits 

issued by states and consideration of 

citizen petitions on those permits). 

B. Purpose and Function of Title V 

Permits 

The title V permitting program was 

created to assist with compliance and 

enforcement of air pollution controls 

established under other CAA programs. 

Before this program existed, the CAA 

pollution control requirements that 

might apply to a particular source could 

be found in many different provisions of 

the Act along with various federal and 

state regulations and permits. One court 

opinion summarized the relationship 

between title V and other CAA programs 

as follows: 

Under the regulatory regime established by 

the [CAA], emission limits for pollutants and 

monitoring requirements that measure 

compliance applicable to any given 

stationary source of air pollution are 

scattered throughout rules promulgated by 

states or EPA, such as [SIPs], new source 

performance standards [NSPS], and national 

emission standards for hazardous air 

pollutants [NESHAP]. Before 1990, regulators 

and industry were left to wander through this 

regulatory maze in search of the emission 

limits and monitoring requirements that 

might apply to a particular source. Congress 

addressed this confusion in the 1990 

Amendments by adding title V of the Act, 

which created a national permit program that 

requires many stationary sources of air 

pollution to obtain permits that include 

relevant emission limits and monitoring 

requirements. 

Sierra Club v. EPA, 536 F.3d 673, 674 

(D.C. Cir. 2008) (citations omitted). 

Thus, one key function of title V is to 

consolidate applicable requirements 

established under other CAA programs. 

This consolidation function is embodied 

in CAA section 504(a), which states, in 

part: ‘‘Each permit issued under this 

subchapter shall include enforceable 

emission limitations and standards . . . 

and such other conditions as are 

necessary to assure compliance with 

applicable requirements of this chapter, 

including the requirements of the 

applicable implementation plan.’’ 42 

U.S.C. 7661c(a). The EPA’s regulations 

implementing title V contain language 

similar to the statute. See 40 CFR 

70.6(a)(1), 71.6(a)(1).5 The EPA’s 

regulations also require that ‘‘The 

permit shall specify and reference the 

origin of and authority for each term or 

condition, and identify any difference in 

form as compared to the applicable 

requirement upon which the term or 

condition is based.’’ 40 CFR 

70.1(a)(1)(i), 71.1(a)(1)(i). 

In addition to consolidating existing 

applicable requirements, CAA section 

504 provides the EPA with the authority 

to use title V permits to establish 

additional requirements necessary to 

assure compliance with existing 

applicable requirements. For example, it 

is well established that title V permits 

may be used to create or supplement 

monitoring requirements when 

necessary in order to assure compliance 

with underlying applicable 

requirements that do not themselves 

contain sufficient monitoring 

provisions.6 Various compliance 

assurance requirements are included 

within title V and the EPA’s 

implementing regulations; not all are 

restricted to monitoring.7

Beyond title V’s consolidation and 

compliance assurance functions, title V 

generally does not impose new 

pollution control requirements on 

sources or provide a vehicle to modify 

such requirements established under 

other CAA programs. Thus, the EPA’s 

regulations expressly provide: ‘‘All 

sources subject to these regulations shall 

have a permit to operate that assures 

compliance by the source with all 

applicable requirements. While title V 

does not impose substantive new 

requirements, it does require that . . . 

certain procedural measures be adopted 

especially with respect to compliance.’’ 

40 CFR 70.1(b) (emphasis added). For 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
1154 Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 

8Similar requirements appear in other parts of 

title V. ‘‘Schedule of compliance. The term 

‘schedule of compliance’ means a schedule of 

remedial measures, including an enforceable 

sequence of actions or operations, leading to 

compliance with an applicable implementation 

plan, emission standard, emission limitation, or 

emission prohibition’’ 42 U.S.C. 7661(3). ‘‘Nothing 

in this subsection shall be construed to alter the 

applicable requirements of this chapter that a 

permit be obtained before construction or 

modification.’’ 42 U.S.C. 7661a(a). Permitting 

authorities ‘‘have adequate authority to . . . issue 

permits and assure compliance . . . with each 

applicable standard, regulation, or requirement 

under this chapter.’’ 42 U.S.C. 7661a(b)(5). The 

regulations to implement the program shall include 

a ‘‘requirement that the applicant submit with the 

application a compliance plan describing how the 

source will comply with all applicable 

requirements under this chapter.’’ 42 U.S.C. 

7661b(b). However, like section 504, these sections 

do not specify the scope of the term ‘‘applicable 

requirements’’ or how the permitting authority or 

the EPA is to determine what the applicable 

requirements are for an individual source as part of 

its title V permit. 

9This definition also indicates that requirements 

that have been promulgated or approved at the time 

of permit issuance, but with which the source is not 

yet required to comply, are applicable requirements 

that must be included in a title V permit. 40 CFR 

70.2, 71.2. The EPA is not aware of any issues or 

confusion concerning this element of the definition, 

which is not discussed further in this preamble. 

10The list includes, in summary, requirements 

from: (1) SIPs and FIPs under CAA title I; (2) 

preconstruction permits under CAA title I; (3) CAA 

section 111 (NSPS and existing source rules); (4) 

CAA section 112 (NESHAP); (5) title IV (acid rain); 

(6) CAA sections 504(b) or 114(a)(3) (certain types 

of enhanced monitoring); (7) CAA sections 126(a)(1) 

and (c) (interstate pollution); (8) CAA section 129 

(solid waste incineration); (9) CAA section 183(e) 

(consumer and commercial products); (10) CAA 

section 193(f) (tank vessels); (11) CAA section 328 

(outer continental shelf permits); (12) CAA title VI 

(stratospheric ozone); and (13) any NAAQS, but 

only as it would apply to temporary sources under 

CAA section 504(e). 

additional information about the 

purpose and function of title V, see 

section IV.E.2. of this preamble. 

In summary, the title V operating 

permit program is a vehicle for 

compiling air quality control 

requirements from other CAA programs 

and for providing requirements 

necessary to assure compliance with 

such requirements, but not for creating 

or changing applicable requirements. 

Put simply, title V is a catch-all, not a 

cure-all. The discussion throughout the 

remainder of this preamble builds upon 

these longstanding general principles, 

which the EPA does not propose to 

change through this rulemaking. 

C. Regulatory Definition of ‘‘Applicable 

Requirements’’ 

As previously explained, CAA section 

504(a) requires that title V permits 

‘‘include enforceable emissions 

limitations and standards . . . and such 

other conditions as are necessary to 

assure compliance with applicable 

requirements of this chapter, including 

the requirements of the applicable 

implementation plan.’’ 42 U.S.C. 

7661c(a).8 However, the term 

‘‘applicable requirements’’ is not 

defined in the Act and the statute does 

not otherwise specify how to determine 

the ‘‘applicable requirements of this 

chapter’’ for a particular source. When 

the EPA developed regulations to 

implement the title V program, the 

agency specifically defined the term 

‘‘applicable requirement’’ as it relates to 

title V permitting. This subsection of the 

preamble addresses general topics 

associated with this regulatory 

definition. The subsections that follow 

elaborate on these general concepts with 

more specific examples about how these 

concepts impact different types of 

requirements. 

As an initial matter, it is important to 

recognize that ‘‘applicable requirement’’ 

is a legal term of art with a precise 

meaning that is unique to title V. Its 

meaning is closely aligned with the 

primary function of title V permits: to 

consolidate and assure compliance with 

the substantive requirements 

established under other CAA programs. 

Thus, in general, the EPA’s definition of 

‘‘applicable requirement’’ focuses on 

those substantive requirements of other 

CAA programs that must be 

incorporated into a source’s title V 

permit, and with which the title V 

permit must assure compliance. This 

means that not all CAA requirements 

are considered ‘‘applicable 

requirements’’ for title V purposes. 

However, the fact that some CAA 

requirements are not considered 

‘‘applicable requirements’’ for title V 

purposes does not diminish the 

independent enforceability or 

importance of those requirements. It 

simply means that those requirements 

are not primarily implemented or 

enforced using title V permits. 

The EPA’s regulations define 

‘‘applicable requirement’’ to mean ‘‘all 

of the of the following as they apply to 

emissions units in a part 70 source,’’ 9

followed by a list of 13 types of CAAbased requirements that qualify. 40 CFR 

70.2; see 40 CFR 71.2 (similar 

definition).10

Perhaps the most straightforward 

aspect of this definition is that, in order 

to qualify as an ‘‘applicable 

requirement’’ for title V purposes, the 

requirement must be based on the CAA 

and, more specifically, one of the CAA 

sections specifically identified in this 

definition. Requirements that are not 

based on (i.e., derived from) the CAA 

are not ‘‘applicable requirements’’ of the 

CAA with which a title V permit must 

assure compliance. Further, not all CAA 

requirements qualify as ‘‘applicable 

requirements’’ for title V purposes. 

Some sections of the CAA were 

intentionally omitted from the list of 13 

types of ‘‘applicable requirements’’ 

because these sections either do not 

apply to stationary sources that must 

obtain title V permits, or these sections 

are not implemented through title V for 

other reasons. See section III.D.2. of this 

preamble for more information. 

A similarly important definitional 

element is that ‘‘applicable 

requirements’’ only include the listed 

types of CAA requirements ‘‘as they 

apply to emission units in a part 70 

source.’’ Requirements of the CAA that 

do not directly apply to a source’s 

emission units are not ‘‘applicable 

requirements’’ for title V purposes, as 

discussed in section III.D.3. of this 

preamble. 

Additionally, the requirements of title 

V itself (and the EPA’s part 70 and 71 

implementing regulations) are not 

technically considered ‘‘applicable 

requirements’’ but are nonetheless 

centrally important to title V permitting. 

See section III.D.4. of this preamble for 

more information. 

The definition of ‘‘applicable 

requirement’’ can also affect the manner 

in which requirements that are 

considered applicable requirements are 

implemented through title V. In 

summary, some applicable requirements 

can be described as ‘‘selfimplementing.’’ Once established, those 

requirements should entail little to no 

review through the title V permitting 

process. Other applicable requirements 

may require further site-specific 

evaluation in order to define the precise 

requirements that apply to individual 

emission units. In certain 

circumstances, the latter type of 

applicable requirements may be further 

defined using the title V permitting 

process. These topics are discussed in 

more detail in sections III.E. and III.F. of 

this preamble. 

D. Requirements That Are Not 

‘‘Applicable Requirements’’ for 

Purposes of Title V Permitting 

Sources subject to title V may be 

subject to a variety of requirements both 

within and beyond the CAA. Not all of 

these requirements are ‘‘applicable 

requirements’’ that must be included in 

a title V permit and with which the title 

V permit must assure compliance. 

Requirements that are not applicable 

requirements fall into several categories, 

discussed in the following subsections. 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 1155 

11The EPA’s regulations provide that title V 

permit issuance may be coordinated with the 

issuance of permits under the CWA and RCRA, but 

that does not mean those other requirements are 

subject to review through title V. 40 CFR 70.1(e), 

71.1(d). 

12See, e.g., In The Matter of Gateway Generating 

Station, Order on Petition No. IX–2013–1 at 12–14 

(Oct. 15, 2014); In the Matter of Monroe Electric 

Generating Plant, Order on Petition No. 6–99–2 at 

27 (June 11, 1999). 

13See, e.g., In the Matter of AK Steel Dearborn 

Works, Order on Petition No. V–2016–16 at 17–19 

(Jan. 15, 2021) (AK Steel Order); In the Matter of 

Orange Recycling and Ethanol Production Facility, 

Pencor-Masada Oxynol, LLC, Order on Petition No. 

II–2000–07 at 32–33 (May 2, 2001) (Pencor-Masada 

I Order). Note that federal executive orders may be 

more directly relevant to EPA-issued title V permits 

under part 71 (as well as other types of EPA-issued 

permits). 

14This includes requirements that may be 

designed to implement a CAA requirement, but 

which the EPA has not yet approved (including 

SIPs, state plans under CAA section 111(d), and 

state programs under CAA section 112(l), and part 

70 programs). 

15See, e.g., In the Matter of Salt River Project 

Agricultural Improvement & Power District, Agua 

Fria Generating Station, Order on Petition No. IX– 

2022–4 at 14 (July 28, 2022) (SRP Agua Fria Order); 

In the Matter of Shintech, Inc., Order on Petition 

at 14 (Sept. 10, 1997) (Shintech I Order). 

16See, e.g., In the Matter of Harquahala 

Generating Station Project, Order on Petition at 5 

(July 2, 2003) (Harquahala Order). 

17For example, the EPA has used and will use 

title V oversight tools to assess whether state laws 

should be considered federally enforceable 

‘‘applicable requirements’’ with which a title V 

permit must assure compliance. See, e.g., In the 

Matter of Georgia-Pacific Consumer Operations 

LLC, Crossett Paper Operations, Order on Petition 

Nos. VI–2018–3 & VI–2019–12 at 14–15 (Feb. 22, 

2023). The EPA has also considered whether title 

V permit terms are appropriately designated as 

federally enforceable requirements or state-only 

requirements. See, e.g., In the Matter of ExxonMobil 

Corp., Baytown Chemical Plant, Order on Petition 

No. VI–2020–9 at 24–26 (Mar. 18, 2022) 

(ExxonMobil Baytown Chemical Order). 

Additionally, the EPA will consider whether stateonly requirements or permit terms would impair 

the effectiveness or enforceability of applicable 

requirements or other federally enforceable title V 

permit terms. See, e.g., Harquahala Order at 5. 

Finally, note that any terms of a title V permit that 

are not designated as ‘‘state only’’ or ‘‘not federally 

enforceable’’ (or similar) become federally 

enforceable upon permit issuance and are subject to 

the part 70 requirements that govern federally 

enforceable terms of title V permits, including 

requirements related to monitoring, recordkeeping, 

and reporting. 40 CFR 70.6(b)(1)–(2); see, e.g., In the 

Matter of ExxonMobil Fuels & Lubricant Co., Baton 

Rouge Refinery, Reforming Complex and Utilities 

Unit, Order on Petition Nos. VI–2020–4, VI–2020– 

6, VI–2021–1, & VI–2021–2 at 16 & 16 n.26 (Mar. 

18, 2022). 

18Questions sometimes arise regarding whether 

an internal combustion engine used at a stationary 

source should be considered a nonroad engine or 

a part of the stationary source. See, e.g., 42 U.S.C. 

7550(10); 7602(z); 40 CFR 1068.30. This topic is 

beyond the scope of the current rulemaking. 

1. Requirements Not Derived From the 

CAA 

Many sources subject to title V are 

also subject to federal laws beyond the 

CAA, including environmental laws 

administered by the EPA or other 

federal agencies (e.g., the Clean Water 

Act (CWA); Safe Drinking Water Act; 

Resource Conservation and Recovery 

Act (RCRA); Comprehensive 

Environmental Response, 

Compensation, and Liability Act; 

National Environmental Policy Act, 

Emergency Planning and Community 

Right-to-Know Act, Endangered Species 

Act, and other statutes). Other federal 

laws may also impact the decisionmaking of state permitting authorities 

(e.g., the Civil Rights Act of 1964). 

These other federal laws—including the 

statutes and any implementing 

regulations—are not ‘‘applicable 

requirements’’ for title V purposes. Such 

requirements do not need to be included 

in title V permits, and title V permits do 

not need to assure compliance with 

these requirements. Further, whether a 

permittee or permitting authority has 

satisfied those requirements is beyond 

the scope of issues that the EPA can 

address through its title V-based 

oversight authorities, including the 

EPA’s objection authority and public 

petition opportunity.11 This is selfevident from the plain language of the 

CAA and the EPA’s regulations, which 

limit the EPA’s objection authority to 

permits that ‘‘are not in compliance 

with the applicable requirements of [the 

CAA].’’ 42 U.S.C. 7661b(1), (2); see 40 

CFR 70.8(c)(1), 70.12(a)(2). Nonetheless, 

the EPA sometimes receives title V 

petitions requesting the EPA’s objection 

to the issuance of operating permits on 

the basis of alleged violations of laws 

other than the CAA. The EPA has 

denied all of those petition claims.12

Other federal authorities are 

sometimes invoked in the context of 

title V permitting (and in particular, title 

V petitions), including presidential 

executive orders. Because executive 

orders are not legally binding on state 

permitting authorities and are generally 

not based on the CAA, they do not 

establish ‘‘applicable requirements’’ that 

states must implement through title V 

permitting. Accordingly, the EPA has 

denied title V petition claims alleging 

that state permitting authorities failed to 

satisfy executive orders.13

Many state permitting authorities 

have air quality laws that are not 

derived from the CAA and/or are not 

included as part of an EPA-approved 

state program.14 These ‘‘state-only’’ 

requirements are not, standing alone, 

enforceable by the EPA and are not 

applicable requirements for title V 

purposes. Thus, these requirements do 

not need to be included in title V 

permits, title V permits do not need to 

assure compliance with these 

requirements, and these requirements 

are beyond the scope of the EPA’s title 

V oversight tools. For these reasons, the 

EPA has denied numerous title V 

petition claims alleging that title V 

permits fail to satisfy state-only laws 

and requirements.15

State permitting authorities may, at 

their discretion, include requirements 

based on state-only enforceable laws 

within title V permits, but they are 

required to designate such permit terms 

as ‘‘state-only’’ or ‘‘not federally 

enforceable.’’ 40 CFR 70.6(b)(2). Again, 

these requirements are not ‘‘applicable 

requirements’’ for purposes of title V 

permitting. Thus, from the EPA’s 

perspective, properly labeled state-only 

permit terms are not considered part of 

the title V permit; they may be 

physically present in the document, but 

they are not legally present for purposes 

of federal enforceability and oversight. 

As such, these permit terms are not 

subject to the EPA’s objection authority 

nor the title V petition process. 40 CFR 

70.6(b)(2). The EPA has denied many 

title V petition claims challenging the 

content of state-only permit terms.16

Note, however, that there are some 

limited situations in which state-only 

requirements intersect with title V 

requirements.17 Additionally, the CAA 

requires states to provide the public 

with an opportunity to raise concerns 

with any conditions of a title V permit, 

including state-only conditions, through 

judicial review in state court systems. 

See 42 U.S.C. 7661a(b)(6); 40 CFR 

70.4(b)(3)(x)–(xii). This opportunity 

exists in parallel to the unique oversight 

authorities (e.g., the EPA’s objection 

authority and public petition 

opportunity) that extend only to 

federally enforceable requirements of 

title V permits. 

2. CAA Requirements That Are Not 

Specifically Identified in 40 CFR 70.2 

The CAA is a large and complex 

statute, composed of many different 

programs. Not all of these programs are 

implemented in the same manner 

through title V or establish ‘‘applicable 

requirements’’ for title V purposes. 

One notable example is title II of the 

CAA, which concerns emission 

standards for internal combustion 

engines in mobile sources and nonroad 

engines. Even if such emission units are 

located at a stationary source, they are 

not regulated as a stationary source 

because they are excluded from the 

definition of ‘‘stationary source.’’ See 42 

U.S.C. 7602(z).18 Thus, title II 

requirements with which a stationary 

source must comply are not included 

within the EPA’s title V-focused 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
1156 Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 

19One notable exception is the Outer Continental 

Shelf permitting requirements under CAA section 

328, 42 U.S.C. 7627, which are considered 

applicable requirements for title V purposes. 40 

CFR 70.2, 71.2. 

20See, e.g., In the Matter of Hu Honua Bioenergy 

Facility, Order on Petition No. IX–2011–1 at 6–7 

(Feb. 7, 2014) (Hu Honua I Order). 

21See, e.g., In the Matter of Exxon Chemical 

Americas, Baton Rouge Polyolefins Plant, Order on 

Petition No. 6–00–1 at 10–11 (Apr. 12, 2000). 

22See, e.g., In the Matter of Century Aluminum 

of South Carolina, Inc., Order on Petition No. IV– 

2023–09 at 19–20 (November 2, 2023) (Century 

Aluminum Order). However, note that there are 

limited circumstances under which procedural 

issues associated with other CAA programs 

(namely, the issuance of NSR permits) may be 

implicated in title V. See section IV.B.5.a. of this 

preamble for further discussion. 

23By contrast, issues related to the procedures 

used to issue a title V permit are of central 

relevance to the title V program, and the unique 

title V oversight tools available to the EPA and the 

public generally may be used to address those 

deficiencies. See section III.D.4. of this preamble for 

more information on such part 70 requirements. 

24These general provisions are not considered 

applicable requirements for two reasons: (i) they are 

not specified within the regulatory definition’s list 

of 13 types of CAA requirements (as discussed in 

the preceding subsection of the preamble), and (ii) 

they do not apply to emission units at a source (as 

discussed in this subsection). 

25See, e.g., In the Matter of Plains Marketing LP 

and Four Other Facilities, Order on Petition Nos. 

IV–2023–1 & IV–2023–3 at 50 (Sept. 18, 2023). Note 

that EPA has also indicated that title V permits 

cannot be drafted in such a way that would 

preclude the use of all credible evidence in 

enforcement proceedings. See, e.g., In the Matter of 

Valero Refining-Texas, L.P., Valero Houston 

Refinery, Order on Petition No. VI–2021–8 at 70 

(June 30, 2022) (Valero Houston Order). 

26Part 70 requirements do not meet the regulatory 

definition of ‘‘applicable requirement’’ because they 

are not included within the definition’s list of 13 

types of CAA requirements. Moreover, some part 70 

requirements (e.g., procedural requirements) do not 

directly apply to emission units. 

27The phrase ‘‘part 70 requirements’’ is based on 

various portions of the part 70 regulations that refer 

to the ‘‘requirements of this part’’ as a distinct, and 

additional, source of requirements from ‘‘applicable 

requirements’’ based on other CAA programs. See 

40 CFR 70.4(b)(3)(v), 70.6(a)(9)(iii), 70.6(a)(10)(iii), 

70.7(a)(1)(iv), 70.8(b)(2), 70.8(c)(1), 70.12(a)(2). This 

concept is also relevant with respect to EPA-issued 

permits under 40 CFR part 71, where a similar 

distinction exists between ‘‘applicable 

regulatory definition of ‘‘applicable 

requirement.’’ 

Other substantive CAA programs 

relevant to stationary sources are 

similarly not identified in the EPA’s 

regulatory definition of ‘‘applicable 

requirement’’ for title V purposes 

because Congress did not intend for 

them to be implemented through the 

title V program. For further information 

about one example—the ‘‘General Duty 

Clause’’ concerning the prevention of 

accidental releases of hazardous 

substances under CAA section 

112(r)(1)—see section V. of this 

preamble. Another example is the 

Greenhouse Gas Reporting Program in 

40 CFR part 98. That program applies to 

stationary sources and uses the 

authorities provided in CAA sections 

114 and 208 to collect greenhouse gas 

emissions information, but it is not an 

applicable requirement for title V 

purposes. Similarly, the Air Emissions 

Reporting Requirements program in 40 

CFR part 51, subpart A imposes 

information-gathering requirements that 

are generally not implemented through 

title V. 

Some CAA provisions are more 

general in nature and do not impose 

substantive requirements that are 

incorporated into title V permits. For 

example, title III of the CAA includes 

general provisions related to a number 

of cross-cutting topics. See 42 U.S.C. 

7601–7628. Although some of these 

requirements may directly or indirectly 

impact title V permitting, most 

provisions within title III are not 

‘‘applicable requirements’’ for title V 

purposes.19

3. Requirements That Do Not Apply to 

Emission Units 

Not all requirements from CAA 

programs identified in the EPA’s 

regulatory definition of ‘‘applicable 

requirement’’ are considered applicable 

requirements for title V purposes. This 

is because the definition only includes 

such requirements ‘‘as they apply to 

emission units in a part 70 source.’’ 40 

CFR 70.2, 71.2. Applicable requirements 

generally include the substantive 

requirements from other provisions of 

the Act that dictate the ongoing 

operations of emission units at the 

source. After all, as the name of this 

program suggests, title V operating 

permits are fundamentally designed to 

specify the conditions under which a 

source’s emission units must operate. 

Further, a key purpose of the title V 

program is to assure that the source 

complies with the requirements to 

which it is subject. See 42 U.S.C. 

7661a(a). 

Therefore, requirements of the CAA 

that do not directly apply to individual 

emission units at a part 70 source are 

not ‘‘applicable requirements’’ for title V 

purposes. Many of the CAA provisions 

that do not apply to emission units at a 

title V source could be described as 

programmatic or procedural in nature. 

For example, CAA requirements that 

specify actions that the EPA must take 

in order to establish or oversee different 

CAA programs (such as promulgating 

rules, taking action on state rules, and 

other programmatic oversight activities) 

are not applicable requirements that 

need to be reflected in a source’s title V 

permit.20 Similarly, the CAA requires 

state air agencies to undertake various 

activities related to the establishment 

and implementation of different CAA 

programs, including attainment 

planning requirements (e.g., in 

developing SIPs).21 State permitting 

authorities are also subject to various 

requirements (mostly procedural) 

related to the issuance of non-title V 

permits (e.g., NSR permits).22 In general, 

the EPA does not believe that Congress 

intended the title V program to serve as 

a vehicle to catch or correct 

programmatic or procedural problems 

associated with the establishment of 

applicable requirements in other CAA 

programs.23 Instead, again, the title V 

program was designed to ensure that 

regulated sources comply with all the 

substantive air pollution control 

requirements to which they are subject. 

Thus, to the extent these requirements 

only directly regulate EPA or state 

actions—and do not result in 

requirements directly applicable to 

emission units at a title V source—they 

are not applicable requirements for title 

V purposes. 

Also, the CAA contains many crosscutting general provisions (e.g., in title 

III of the CAA) that are not considered 

applicable requirements because they 

do not directly apply to emission units 

at part 70 sources.24 The same is true for 

various cross-cutting regulatory 

provisions. To the extent these 

provisions are relevant to the 

implementation or enforcement of the 

title V program, they are independently 

enforceable and do not need to be 

explicitly specified in a title V permit. 

One example that often arises in the 

context of title V petitions is that of 

‘‘credible evidence.’’ EPA, states, and 

citizens can use any credible evidence 

to prove compliance and noncompliance with the CAA, including 

compliance and non-compliance with 

title V permits. See 42 U.S.C. 7413(a), 

7604(a)(1), 7604(f)(4); 62 FR 8314 (Feb. 

24, 1997). The EPA has repeatedly held 

that title V permits need not include 

language affirmatively restating the 

existence of this principle.25

4. ‘‘Part 70 Requirements’’ 

As previously stated, the definition of 

‘‘applicable requirement’’ in 40 CFR 

70.2 and 71.2, and the manner in which 

this phrase is used throughout the EPA’s 

title V regulations, focus on CAA 

requirements arising from other CAA 

programs beyond title V. By contrast, 

the requirements within title V and the 

EPA’s part 70 and 71 regulations are not 

technically considered ‘‘applicable 

requirements.’’ 26 Instead, the EPA 

generally refers to these as ‘‘part 70 

requirements.’’ 27


khammond on DSKJM1Z7X2PROD with PROPOSALS2
Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 1157 

requirements’’ derived from other CAA programs 

and the requirements of part 71 that are derived 

from title V of the Act. See, e.g., 40 CFR 71.10(g)(1). 

However, given that this issue most often arises in 

the context of state-issued part 70 permits, this 

preamble uses the term ‘‘part 70 requirements’’ to 

refer to requirements derived from title V. 28The permit shield is discussed in more detail 

in section IV.C.3. of this preamble to the extent it 

impacts NSR permitting decisions. 

29This is in contrast with some other programs 

the EPA administers, such as certain requirements 

under the CWA. Some new requirements under the 

CWA only become effective once they are 

incorporated into a source’s National Pollutant 

Discharge Elimination System (NPDES) permit. See, 

e.g., Texas Oil & Gas Ass’n et al v. US EPA, 161 

F.3d 923, 928 (5th Cir. 1998) (‘‘Despite their central 

role in the framework of the CWA, [Effluent 

Limitation Guidelines, or ELGs] are not selfexecuting. They cannot be enforced against 

individual dischargers, and individual dischargers 

are under no legal obligations to obey limits set by 

ELGs. Rather, ELGs achieve their bite only after 

they have been incorporated into NPDES permits.’’ 

(citing American Paper Inst. v. EPA, 996 F.2d 346, 

350 (D.C. Cir. 1993); American Petroleum Inst., 661 

F.2d 340, 344 (5th Cir. 1981)). 

30The manner in which such requirements may 

be included in or incorporated by reference into, a 

title V permit is beyond the scope of this 

rulemaking. For more information about 

incorporation by reference, see, for example, 

ExxonMobil Baytown Chemical Order at 16–19 and 

White Paper Number 2 for Improved 

Implementation of the Part 70 Operating Permits 

Program, 36–41 (Mar. 5, 1996). 

31See, e.g., In the Matter of Borden Chemical, Inc. 

Formaldehyde Plant, Order on Petition No. 6–01– 

1 at 48–49 (Dec. 22, 2000). 

32The EPA has established formal and informal 

processes for EPA to resolve questions regarding the 

applicability of NSPS, NESHAP, and section 111(d) 

and section 129 rules, called the ‘‘applicability 

determination’’ process. See 40 CFR 60.5, 61.06, 

62.02(b)(2); EPA Process Manual for Responding to 

Requests Concerning Applicability and Compliance 

Requirements of Certain Clean Air Act Stationary 

Source Programs, Appx B (July 2020), available at 

https://www.epa.gov/sites/default/files/2020-07/ 

documents/111-112-129_process_manual.pdf. 

This distinction is meaningful 

because the regulatory use of the term 

‘‘applicable requirement’’ is closely tied 

to the core purpose of title V: to 

consolidate and assure compliance with 

the substantive requirements from other 

CAA programs, but not to create or 

modify such requirements. Thus, as 

previously described, the title V 

permitting process and title V oversight 

tools are generally not used to 

reevaluate the content of ‘‘applicable 

requirements’’ from other CAA 

programs. 

By contrast, many ‘‘part 70 

requirements’’ are directly implemented 

through title V permitting, as these 

requirements relate to the content of 

title V permits and the process used to 

issue them. For example, the 

requirements that dictate the content of 

title V permits are part 70 requirements 

(not applicable requirements). These 

include, for example, the requirement 

that title V permits include and assure 

compliance with ‘‘applicable 

requirements’’ established elsewhere, 

and the authority to impose, as 

necessary, additional monitoring and 

other compliance assurance provisions. 

See, e.g., 40 CFR 70.6(a), (c). Further, 

the requirements related to public 

participation in title V permits, the 

availability of information, and related 

procedural requirements are all part 70 

requirements (not applicable 

requirements). See 40 CFR 70.7(h). Title 

V and the part 70 regulations contain 

other unique title V authorities—such as 

the ‘‘permit shield’’ under CAA section 

504(f) and 40 CFR 70.6(f).28 The 

important distinction between these 

part 70 requirements and applicable 

requirements from other CAA programs 

is that part 70 requirements are properly 

subject to the additional oversight 

mechanisms unique to title V (including 

the EPA objection authority, public 

petition opportunity, and other 

programmatic oversight authorities). 

E. Self-Implementing Applicable 

Requirements (e.g., NSPS, NESHAP) 

Turning to CAA provisions that are 

considered ‘‘applicable requirements,’’ 

not all applicable requirements are 

treated the same in title V permits. This 

subsection addresses applicable 

requirements with the most 

straightforward title V implementation, 

often referred to as ‘‘self-implementing’’ 

or ‘‘self-executing’’ requirements. The 

hallmark of a self-implementing 

requirement is that the underlying 

statutory or regulatory provision defines 

the requirements applicable to a given 

emission unit with enough specificity 

for these requirements to be 

independently and immediately 

enforceable, even before going through 

the permitting process.29 In other words, 

these applicable requirements require 

no further case-specific decisionmaking 

(e.g., through a permitting process) in 

order to define the precise requirements 

to which a source is subject. Such 

requirements consist of prescribed 

emission standards, operational 

limitations, testing, monitoring, 

recordkeeping, reporting, and other 

compliance assurance requirements. 

These requirements are explicitly 

identified within an EPA regulation 

(e.g., NSPS under CAA section 111, 

NESHAP under CAA section 112, 

Federal Plan under CAA section 111(d), 

similar rules under CAA section 129, or 

a FIP under CAA section 110(c)) or an 

EPA-approved state regulation (e.g., SIP 

under CAA section 110(a) or a State 

Plan under CAA sections 111(d) or 129). 

Such self-implementing applicable 

requirements should generally be 

included in, or incorporated into, a title 

V permit without further review.30 It 

would not be appropriate, for example, 

to use the title V permitting process to 

reevaluate the stringency of a Maximum 

Achievable Control Technology (MACT) 

standard promulgated by the EPA 

through rulemaking under CAA section 

112.31 The same is true with respect to 

the content of self-implementing 

standards contained in SIPs, as 

discussed further in section III.G. of this 

preamble. 

Central to the concept of ‘‘applicable 

requirements’’ is the fact that each 

applicable requirement is established 

through its own dedicated process, 

which includes the ability for the public 

to participate in the development of 

and, if necessary, challenge the 

substantive sufficiency of the 

requirement. For example, the EPA 

regulations referenced in preceding 

paragraphs are generally undertaken 

under CAA section 307, which 

establishes various procedural and 

public participation-related 

requirements, as well as the opportunity 

for judicial review of final regulations. 

See 42 U.S.C. 7607(b)–(d). The 

promulgation and approval of SIPs often 

involves two such rulemakings—one at 

the state level and one at the federal 

level. Thus, the fact that selfimplementing applicable requirements 

are not substantively re-evaluated 

through title V does not mean the public 

is without recourse; it simply means 

that the title V permitting process was 

not designed to collaterally attack or 

reopen these previously-finalized 

applicable requirements. 

Given title V’s key role in 

consolidating applicable requirements, 

questions often arise during the 

permitting process as to which CAA 

requirements are applicable to a given 

source or emission unit. To the extent 

that applicability is clearly established 

within the applicable requirement itself 

(e.g., a source-specific SIP provision) or 

some other type of final agency action 

(e.g., a formal EPA applicability 

determination under CAA sections 111, 

112, or 129), applicability would not be 

subject to further scrutiny through title 

V.32 However, there are cases where the 

applicability of a requirement— 

including a requirement that could 

otherwise be described as ‘‘selfimplementing’’—has not been 

conclusively established prior to title V 

permit issuance. In these cases, the title 

V permitting process can and should be 

used to determine which requirements 

apply to the source, so that the title V 

permit can include and assure 

compliance with those requirements. 

For example, determining which NSPS 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
1158 Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 

33Under CAA section 112(g)(2), if the EPA has 

not established a MACT standard for a source 

category, the EPA or the state must establish a caseby-case MACT emission limit prior to certain 

construction activities at a major source of HAPs. 

Similarly, under CAA section 112(j)(2), if the EPA 

has not established a MACT standard for a source 

category, a new or existing major source’s title V 

operating permit must include a case-by-case 

MACT limit. See also 40 CFR 63.40–44 

(implementing regulations for 112(g)), 63.50–56 

(implementing regulations for 112(j)). 

34See 61 FR 68384, 68393, 68395 (Dec. 27, 1996) 

(‘‘Where EPA determines that the MACT 

determination made by the permitting authority 

fails to meet any of the requirements of § 63.43 

[and] where the MACT determination is made part 

of a source’s part 70 permit, EPA may veto issuance 

of the permit in accordance with the provisions of 

40 CFR 70.8(c).’’); id. at 68395 (‘‘If, during the EPA’s 

review of the section 112(g) determination, it 

becomes apparent that the determination is not in 

compliance with the Act, then EPA must object to 

the issuance or revision of that permit.’’); In the 

Matter of American Electric Power Service Corp., 

Southwest Electric Power Co., John W. Turk Plant, 

Order on Petition No. VI–2008–01 at 15–16 (Dec. 

15, 2009); In the Matter of Shintech Inc., PVC Plant, 

Order on Petition No. 6–03–1 at 16–21 (July 3, 

2003). 

35Other requirements of CAA section 111 NSPS 

and section 112 NESHAP regulations may require 

further definition through various types of sitespecific operational plans. These plans are 

generally developed outside of the title V 

permitting process, but to the extent they are 

necessary to impose or assure compliance with an 

applicable requirement of the NSPS or NESHAP, 

they must be included or incorporated into title V 

permits. See, e.g., Valero Houston Order at 25–26. 

36As with essentially all other portions of this 

preamble, the explanations in this section reflect 

existing policies, as expressed in prior rule 

preambles, guidance documents, and numerous 

title V petition orders. 

37 40 CFR 70.2 (defining ‘‘applicable 

requirement’’ to include the NAAQS ‘‘but only as 

it would apply to temporary sources’’); 57 FR at 

32276 (‘‘Under the Act, NAAQS implementation is 

a requirement imposed on States in the SIP; it is 

not imposed directly on a source. In its final rule, 

EPA clarifies that the NAAQS and the increment 

and visibility requirements under part C of title I 

of the Act are applicable requirements for 

temporary sources only.’’); 56 FR at 21732–33 (‘‘The 

EPA does not interpret compliance with the 

NAAQS to be an ‘applicable requirement’ of the 

Act.’’). 

or NESHAP subpart is applicable to a 

source may require further site-specific 

factual analysis through the permitting 

process. Additionally, within a given 

NSPS or NESHAP rule, there may be 

multiple different sets of requirements 

that apply differently to emission units 

with different characteristics. In these 

situations, it may be necessary to use 

the title V permitting process to decide 

(and identify) which specific 

requirements within a NSPS or 

NESHAP rule apply to each emission 

unit at a source. In these cases, the title 

V permitting process can and should be 

used to determine which requirements 

apply to the source, so that the title V 

permit can include and assure 

compliance with those requirements. 

Finally, even for self-implementing 

applicable requirements, the title V 

permitting process may be used to 

determine whether additional 

compliance assurance provisions (e.g., 

monitoring) are necessary. See 42 U.S.C. 

7661c(c); 40 CFR 70.6(c)(1); Sierra Club 

v. EPA, 536 F.3d at 680. Further 

guidance on determining the sufficiency 

of monitoring and other compliance 

assurance provisions is beyond the 

scope of this rulemaking. 

F. Requirements Defined Through Title 

V Permitting 

Although title V generally does not 

impose substantive new requirements, 

title V permits sometimes serve as the 

vehicle to further define applicable 

requirements from other CAA programs. 

This most often occurs when the 

underlying applicable requirement 

provides general direction and requires 

further source-specific analysis to define 

the precise requirements that apply to a 

given source or emission unit. Some 

underlying applicable requirements 

expressly identify title V permits as the 

vehicle for this analysis; others may be 

more open-ended about the vehicle used 

to define the applicable requirement; 

and still others may specify a different 

vehicle for establishing these 

requirements (e.g., NSR permits, 

discussed further in section IV. of this 

preamble). 

Unlike applicable requirements that 

are established in full elsewhere, where 

the details of an applicable requirement 

are defined for the first time through the 

title V permitting process, questions 

about the content of such an applicable 

requirement are subject to title V’s 

unique oversight tools, including the 

EPA’s objection authority and the public 

petition opportunity. 

For example, CAA section 112(g) 

requires the development of case-bycase Maximum Achievable Control 

Technology (MACT) limits prior to 

certain construction activities at a major 

source of HAPs where there is no 

NESHAP under CAA section 112(d).33

These limits can—and in some cases, 

must—be established through the title V 

process. In such cases where a title V 

permit is used to establish a case-bycase MACT limit, questions about both 

the applicability and the content of such 

a limit (i.e., whether the limit properly 

reflects MACT) are subject to the unique 

oversight tools of title V.34

Other requirements of CAA section 

112 NESHAP and section 111 NSPS 

regulations may require further 

definition through, for example, various 

types of site-specific operational plans. 

These plans are generally developed 

outside of the title V permitting process, 

but to the extent they are necessary to 

impose or assure compliance with an 

applicable requirement of the NSPS or 

NESHAP, they must be included or 

incorporated into title V permits.35 The 

title V permitting process may also be 

used for similar case-by-case decisions 

based on underlying SIP provisions, as 

discussed further in the following 

subsection of this preamble. 

In these situations, it is not the title 

V permit that establishes the applicable 

requirement itself. The applicable 

requirement is still based on the 

underlying statutory or regulatory 

provision, but the title V permit defines 

the precise details of the applicable 

requirement. Essentially, the title V 

permitting process is used to develop 

the specific ‘‘enforceable emission 

limitations and standards . . . and such 

other conditions as are necessary to 

assure compliance with the [more 

general underlying] applicable 

requirements. . . .’’ 42 U.S.C. 7661c(a). 

Absent an underlying CAA-based 

authority, title V permits should 

generally not be used to impose new 

substantive requirements. 40 CFR 

70.1(b). 

G. Applicable Requirements Related to 

the NAAQS and SIPs 

CAA requirements associated with the 

NAAQS and SIPs reflect the full 

spectrum of issues discussed in the 

preceding subsections of this preamble. 

Some are not applicable requirements 

for title V purposes; others are selfimplementing applicable requirements 

that need no further review during title 

V; still others may be defined through 

title V permitting; and many are 

established in the NSR permitting 

process. Perhaps due to the variability 

and complexity of issues related to the 

NAAQS and SIPs, the EPA has received 

numerous title V petitions raising 

concerns that the EPA was not able to 

address through that mechanism. The 

EPA hopes that the following discussion 

will help reduce confusion about the 

issues that are—and are not— 

redressable through title V oversight 

tools.36

Beginning with the NAAQS, it is wellestablished that the NAAQS are not 

themselves applicable requirements 

because they do not apply directly to 

sources.37 That is, the promulgation of 

a NAAQS does not, in and of itself, 

automatically result in emission limits 

or other control measures applicable to 

a source. Instead, the NAAQS create an 

obligation on states to develop SIPs (and 

on EPA to promulgate FIPs, as 

necessary) that contain requirements 

necessary to achieve and maintain the 

NAAQS. 42 U.S.C. 7410(a)(1), (c)(1). 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 1159 

38See, e.g., In the Matter of Piedmont Green 

Power, Order on Petition Number IV–2015–2 at 28– 

29 (Dec. 13, 2016) (Piedmont Green Power Order); 

In the Matter of Pacificorp’s Jim Bridger and 

Naughton Electric Utility Steam Generating Plants, 

Order on Petition No. VIII–00–1 at 23–24 (Nov. 16, 

2000). 

39See, e.g., 56 FR at 21757 (‘‘Where SIP 

requirements are clear, the part 70 permit must 

adopt these limitations and reestablish them as 

permit conditions that implement the SIP. Where 

the SIP requirements are ambiguous or absent, the 

permit could provide a way of resolving questions 

as to how the SIP applies and is enforced.’’). 

40See, e.g., In the Matter of TransAlta Centralia 

Generation, LLC, Order on Petition at 11–12 (Apr. 

28, 2011). 

41See In the Matter of In the Matter of Alabama 

Power Co., Barry Generating Plant, Order on 

Petition No. IV–2021–5 at 11–14 (June 14, 2022) 

(granting a claim related to a SIP provision that 

required owner/operators of a certain type of source 

to ‘‘[d]emonstrate, to the satisfaction of the [state], 

that sulfur oxides emitted, either alone or in 

contribution to other sources, will not interfere with 

attainment and maintenance of any primary or 

secondary [NAAQS]’’); In the Matter of Duke 

Energy, LLC, Asheville Steam Electric Plant, Order 

on Petition No. IV–2016–06 at 11–17 (June 30, 

2017) (granting claim related to a SIP requirement 

that ‘‘the permit shall contain a condition 

requiring’’ controls more stringent than the 

applicable emission standards when necessary to 

prevent a violation of the NAAQS—a provision the 

state had previously relied upon to establish limits 

in individual permits); In the Matter of Duke 

Energy, LLC, Roxboro Steam Electric Plant, Order 

on Petition No. IV–2016–07 at 10–15 (June 30, 

2017) (same as Duke Asheville); In the Matter of 

Public Service of New Hampshire, Schiller Station, 

Order on Petition No. VI2014–04 at 8–13 (July 28, 

2015) (granting claim related to a SIP requirement 

to ‘‘apply special emission limits to the stationary 

sources on a case-by-case basis to insure [sic] that 

their air quality impacts’’ do not interfere with 

NAAQS attainment in adjacent states). 

42See In the Matter of EME Homer City 

Generation LP and First Energy Generation Corp., 

Order on Petition Nos. III2012–06, III–2012–07, and 

III–2013–02 at 15–16 (July 30, 2014) (SIP provision 

stated ‘‘No person may permit air pollution as that 

term is defined in the act’’); In the Matter of 

TransAlta Centralia Generation, LLC, Order on 

Petition at 7 (April 28, 2011) (SIP provision 

prohibited ‘‘emissions detrimental to persons or 

property’’); In the Matter of Hercules, Inc., Order on 

Petition at 8 (Nov. 10, 2004) (SIP provision 

prohibited emissions that would cause injury or 

unreasonably interfere with enjoyment of life or use 

of property). 

43See, e.g., In the Matter of Oxbow Calcining LLC, 

Order on Petition No. VI–2020–11 at 10–12 (June 

14, 2022) (addressing a situation where a state 

permitting authority took enforcement action 

against a source that allegedly caused a violation of 

a NAAQS, on the basis that this alleged violation 

also violated permit terms reflecting a general SIP 

provision prohibiting air pollution). 

44See, e.g., 51.166(w)(10)(v); ExxonMobil 

Baytown Chemical Order 9 at 13–14. 

The specific measures contained in each 

state’s EPA-approved SIP to achieve the 

NAAQS are the applicable requirements 

with which sources must comply. 40 

CFR 70.2. For purposes of title V 

permitting, this means that a state does 

not have any general obligation to 

establish emission limitations or other 

standards within a title V permit in 

order to protect the NAAQS. Whether 

such requirements are necessary is 

largely dependent on the relevant terms 

of the SIP. 

Some applicable requirements in SIPs 

could be described as ‘‘selfimplementing’’ in a manner similar to 

the EPA’s NSPS and NESHAP standards 

discussed in section III.E. of this 

preamble. For example, a sourcespecific SIP provision may impose a 

specific numerical emission limit or 

operational limit on a specific source. 

Or, a SIP provision, ‘‘permit by rule,’’ or 

‘‘general permit’’ within the SIP may 

impose similar requirements on a 

category of sources or emission units. 

Such requirements should be included 

in the source’s title V permit without 

further review (except, of course, to 

ensure that the permit contains 

sufficient monitoring and other 

compliance assurance conditions). 

Nonetheless, the EPA has received 

many title V petitions challenging such 

requirements contained in an EPAapproved SIP. Some petitions have 

directly challenged the SIP provision 

itself, asserting that the SIP requirement 

was incorrectly established or failed to 

satisfy certain legal requirements 

governing SIPs. More often, petitions 

have challenged permit terms that 

repeat verbatim an approved SIP 

provision; such claims effectively 

challenge the SIP itself. As the EPA has 

explained, if an alleged problem lies 

with the content of the SIP, the proper 

remedy would be a ‘‘SIP Call’’ under 

CAA section 110(k), not a title V 

petition. Until the EPA approves a 

corrective SIP revision or issues a FIP, 

the SIP provision remains an 

‘‘applicable requirement’’ that should be 

incorporated unchanged into the title V 

permit. The EPA has consistently 

denied title V petition claims on this 

basis.38

Other SIP requirements are less 

specific and must be further defined in 

subsequent proceedings (generally 

before the state) that involve a factspecific analysis of the relevant affected 

sources and emission units.39

Depending on the nature of the SIP 

provisions at issue, this analysis may 

involve, for example, various methods 

of qualitatively or quantitatively 

assessing a source’s impact on the 

NAAQS (including, but not limited to, 

ambient air dispersion modeling). This 

analysis may also result in case-by-case 

emission limits designed to protect the 

NAAQS. Determining the proper venue 

for satisfying or defining these general 

SIP requirements depends on the 

specific language contained in the SIP, 

as discussed in the following 

paragraphs. 

In general, most SIP provisions 

provide that case-by-case decisions 

necessary to fulfill general SIP 

requirements will proceed either 

through subsequent rulemaking 

actions 40 or through the NSR permitting 

process (as discussed in section IV. of 

this preamble). Once established, the 

more specific requirements of the SIP, 

as defined through those processes, are 

generally not subject to further review 

during the title V permitting process. 

However, some SIP requirements may 

be defined for the first time in a title V 

permit, in which case the contents of 

these requirements are reviewable using 

the unique title V oversight tools. Again, 

whether a SIP-based requirement is 

reviewable through the title V process 

depends on the specific SIP provision at 

issue. For example, the EPA has 

reviewed (and granted) title V petitions 

requesting analysis of a source’s impacts 

on the NAAQS or case-specific emission 

limits designed to protect the NAAQS in 

situations where the SIP provisions at 

issue specifically suggested that such 

requirements would be implemented 

through title V.41 In such cases, the EPA 

has generally provided the permitting 

authority the opportunity to interpret 

the relevant SIP provisions and to 

explain the scope, timing, and 

applicability of these provisions as they 

relate to the source in question. 

The EPA has also addressed other, 

more general SIP provisions that do not 

explicitly require any specific action 

during the title V process. These 

provisions often take the form of broad, 

general prohibitions on air pollution, 

and these SIP provisions are not always 

directly tied to the NAAQS or any 

specific federal requirements. The EPA 

has explained that states have discretion 

under these general SIP provisions to 

determine that it is not necessary to 

impose source-specific limits through 

title V permits.42 However, this does not 

prevent states from using title V to 

address such general requirements.43

Although uncommon, some SIP 

provisions expressly identify title V 

permits as a vehicle for establishing or 

modifying SIP-based limits. For 

example, some SIP provisions based on 

the EPA’s Plantwide Applicability Limit 

(PAL) rules expressly identify title V 

renewal permits as a potential vehicle 

for adjusting a PAL.44 Where the title V 

process is specifically identified in a SIP 

as a means of establishing or defining an 

applicable requirement of the SIP, 

questions related to these requirements 

maybe properly raised during the title V 

permitting process. 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
1160 Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 

45For purposes of this preamble, the terms ‘‘title 

I permit’’ and ‘‘NSR permit’’ are used 

interchangeably to describe a preconstruction 

permit issued to satisfy the NSR-related 

requirements of title I of the Clean Air Act. 

IV. Interface Between NSR and Title V 

Permitting 

Since the title V program was created 

in the early 1990s, the EPA, state 

permitting authorities, and other 

interested stakeholders have grappled 

with questions related to the 

intersection of the title I (NSR) 45

preconstruction permitting programs 

and the title V operating permit 

program. Among other issues, one has 

persisted: in what situations, and to 

what extent, should the unique title V 

oversight tools (e.g., the EPA’s objection 

authority and the public petition 

opportunity) be used to address alleged 

deficiencies related to title I permitting 

decisions? This issue implicates various 

questions about the relationship 

between title V permits and applicable 

requirements established in other CAA 

programs. For example, when is an 

applicable requirement considered 

established, such that it should be 

incorporated into a title V permit 

without further substantive review? 

Should applicable requirements 

established under NSR permitting 

programs be treated the same as 

applicable requirements established 

under other CAA programs? The EPA’s 

answer to these questions has changed 

over time, and two federal circuit courts 

have reached differing conclusions on 

the matter, as discussed in section 

IV.A.3. of this preamble. 

This action proposes to codify the 

reasonable approach that the EPA has 

implemented on a case-by-case basis 

since 2017, as further described and 

justified in sections IV.A.3., IV.B., and 

IV.E. of this preamble. In short, 

provided a source obtains an NSR 

permit under EPA-approved (or EPApromulgated) title I rules, with public 

notice and the opportunity for comment 

and judicial review, that NSR permit 

establishes and defines the relevant 

NSR-related applicable requirements of 

the SIP (or FIP) for purposes of title V. 

As with applicable requirements 

established under other CAA authorities 

(e.g., NSPS, NESHAP), the EPA would 

not revisit those NSR decisions through 

the title V process. 

This approach creates an incentive for 

permitting authorities to provide 

opportunities for meaningful public 

involvement through the most 

appropriate venue—the NSR permitting 

process. However, to the extent that the 

public is deprived of the opportunity to 

participate in the NSR permitting 

process, the title V process will serve as 

a backstop to ensure that each title V 

permit contains all applicable 

requirements. In other words, even 

under the EPA’s current (and proposed) 

framework, there are certain situations 

in which the EPA would review 

substantive NSR issues through the title 

V permitting process, as explained in 

more detail in section IV.B.5. of this 

preamble. 

The EPA is also soliciting comment 

on alternative approaches, presented in 

section IV.F. of this preamble, that 

would involve using title V to review 

NSR decisions in more situations. 

The proposed regulatory changes 

related to NSR permitting are distinct 

and severable from the proposed change 

related to the general duty clause under 

CAA section 112(r)(1), discussed in 

section V. of this preamble. 

A. Background: Historical and Current 

EPA Positions 

1. NSR Programs (1977–Present) 

The title I (NSR) preconstruction 

permitting program was established 

before the title V operating permits 

program. The NSR program is based on 

the 1977 Amendments to the CAA. The 

overall NSR program is comprised of 

three sub-programs, as discussed later. 

The NSR program was designed to 

protect public health and welfare from 

the effects of air pollution and to 

preserve and/or improve air quality 

throughout the nation. See 42 U.S.C. 

7470(1), (2), (4). The NSR program 

requires certain stationary sources of air 

pollution to obtain air pollution permits 

prior to beginning construction. 

Construction of new sources and the 

modification of certain sources with 

emissions above statutory and/or 

regulatory thresholds are subject to 

‘‘major source’’ NSR requirements. New 

sources and modifications below the 

relevant emissions thresholds may be 

subject to minor NSR requirements or 

excluded from NSR altogether. 

The major NSR program includes two 

distinct programs that each have unique 

requirements for new or modified 

sources. The applicability of these two 

programs depends on whether the area 

where the source is located is exceeding 

the NAAQS for one or more pollutants. 

The PSD program, based on 

requirements in part C of title I of the 

CAA, applies to pollutants for which the 

area is not exceeding the NAAQS (areas 

designated as attainment or 

unclassifiable) and to regulated NSR 

pollutants for which there are no 

NAAQS. 42 U.S.C. 7470–7479. The 

Nonattainment NSR (NNSR) program, 

based on part D of title I of the CAA, 

applies to pollutants for which the area 

is not meeting the NAAQS (areas 

designated as nonattainment). 42 U.S.C. 

7501–7515. 

To implement the CAA requirements 

for these programs, most states have 

EPA-approved SIPs containing PSD and 

NNSR preconstruction permitting 

programs that meet the minimum 

requirements reflected in the EPA’s 

major NSR program regulations at 40 

CFR 51.166 and 51.165. Upon EPA 

approval of a SIP, the state or local air 

agency becomes the permitting 

authority for major NSR permits for 

sources within its boundaries and issues 

permits under state law. Currently, state 

and local air agencies issue the vast 

majority of major NSR permits each 

year. When a state or local air agency 

does not have an approved NSR 

program, federal regulations (40 CFR 

52.21, through incorporation into a FIP) 

apply and either the EPA issues the 

major NSR permits or a state or local air 

agency issues the major NSR permits on 

behalf of the EPA by way of a delegation 

agreement. For sources located in Indian 

Country, 18 U.S.C. 1151, the EPA is the 

permitting authority for major NSR. 

The permitting program for 

construction of new and modified nonmajor sources and minor modifications 

to major sources is known as the minor 

NSR program. In addition to the specific 

major NSR requirements in CAA 

sections 165 and 173, CAA section 

110(a)(2)(C) requires states to develop a 

program to regulate the construction 

and modification of any stationary 

source ‘‘as necessary to assure that 

[NAAQS] are achieved.’’ 42 U.S.C. 

7410(a)(2)(C). The CAA and the EPA’s 

regulations are less prescriptive 

regarding minimum requirements for 

minor NSR, so air agencies generally 

have more flexibility in designing minor 

NSR programs in their EPA-approved 

SIPs. See 40 CFR 51.160–51.164. Minor 

NSR permits are almost exclusively 

issued by state and local air agencies, 

although the EPA issues minor NSR 

permits in many areas of Indian 

Country. See 40 CFR 49.151–49.165. 

The applicability of the PSD, NNSR, 

and/or minor NSR programs to a 

stationary source must be determined in 

advance of construction and is a 

pollutant-specific determination. Thus, 

a stationary source may be subject to the 

PSD program for certain pollutants, 

NNSR for some pollutants, and minor 

NSR for others. 

2. Original Title V Approach to NSR 

(1990–1997) 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 1161 

46See sections IV.E.2. and IV.E.3. of this preamble 

for further discussion of legislative intent. 

47See In the Matter of Maui Electric Co., Ltd., 

Order on Petition (June 16, 1999) In the Matter of 

Hawaii Electric Light Co. Ltd., Order on Petition 

(Apr. 3, 1998); In the Matter of Kawaihae 

Cogeneration, Order on Petition (Mar. 10, 1997) 

(Kawaihae Order). 

48See, e.g., In the Matter of East Kentucky Power 

Cooperative, Inc., Hugh L. Spurlock Generating 

Station, Order on Petition, 5 n.2 (Aug. 30, 2007) 

(Spurlock I Order); In the Matter of Carmeuse Lime 

and Stone, Order on Petition No. V–2010–1 at 7 n.1 

(Nov. 4, 2011); see also Hu Honua I Order at 3 n.4. 

49For example, within the 1997 Kawaihae Order, 

in which the EPA declined to review the merits of 

a PSD permit issued under delegated federal 

authority, the EPA also announced the following 

(without explanation): ‘‘In contrast, where a state or 

local government has a SIP-approved PSD program 

and the [EAB] lacks jurisdiction to entertain PSD 

permit appeals, the merits of PSD issues are ripe for 

consideration in a timely veto petition under Title 

V.’’ Kawaihae Order at 3. 

50Shintech I Order at 3 n.2 (emphasis added) 

(citation omitted). 

51Letter from John S. Seitz, U.S. EPA, to Robert 

Hodanbosi, STAPPA/ALAPCO (May 20, 1999), 

available at https://www.epa.gov/sites/production/ 

files/2015-08/documents/hodan7.pdf. 

As noted previously, the title V 

program was established in the 1990 

CAA Amendments. The legislative 

history articulates Congress’s intent 

that, notwithstanding the enactment of 

title V, NSR permits would continue to 

be issued as they had for over a decade, 

and that title V permits would be used 

to incorporate those requirements, but 

not to alter or impose additional NSRrelated requirements.46 The text of the 

CAA implicitly reflects this paradigm. 

However, the statute does not 

unambiguously prescribe the details of 

how EPA should approach the 

intersection of the NSR and title V 

permitting programs. 

Thus, when the EPA promulgated the 

original title V implementing 

regulations in 1991 and 1992, the 

agency sought to provide clarity through 

multiple regulatory provisions, both of 

which were introduced earlier in this 

preamble. Again, 40 CFR 70.1(b) states: 

‘‘All sources subject to these regulations 

shall have a permit to operate that 

assures compliance by the source with 

all applicable requirements. While title 

V does not impose substantive new 

requirements, it does require that . . . 

certain procedural measures be adopted 

especially with respect to compliance.’’ 

Additionally, the EPA created a 

definition of ‘‘applicable requirement’’ 

in 40 CFR 70.2 (and later, 71.2) that 

includes, in relevant part: ‘‘all of the 

following as they apply to emissions 

units in a part 70 source . . . (1) Any 

standard or other requirement provided 

for in the applicable implementation 

plan approved or promulgated by EPA 

through rulemaking under title I of the 

Act that implements the relevant 

requirements of the Act, including any 

revisions to that plan promulgated in 

part 52 of this chapter; (2) Any term or 

condition of any preconstruction 

permits issued pursuant to regulations 

approved or promulgated through 

rulemaking under title I, including parts 

C or D, of the Act.’’ 

In the preamble of this initial part 70 

rulemaking effort, the agency spoke 

directly to the intersection of title V and 

title I permitting. The EPA did not 

express an intention to use the title V 

permitting process to review the 

substance of applicable requirements 

established in preconstruction 

permitting programs under title I of the 

CAA. To the contrary, the EPA stated 

that ‘‘[a]ny requirements established 

during the preconstruction review 

process also apply to the source for 

purposes of implementing title V. If the 

source meets the limits in its NSR 

permit, the title V operating permit 

would incorporate these limits without 

further review.’’ 56 FR 21712, 21738–39 

(May 10, 1991) (emphasis added). The 

EPA stated clearly that ‘‘[t]he intent of 

title V is not to second-guess the results 

of any State NSR program.’’ Id. at 21739 

(emphasis added). The EPA stated that 

‘‘[d]ecisions made under the NSR and/ 

or PSD programs (e.g., Best Available 

Control Technology [BACT]) define 

applicable SIP requirements for the title 

V source and, if they are not otherwise 

changed, can be incorporated without 

further review into the operating permit 

for the source.’’ Id. at 21721 (emphasis 

added). The preamble to the final rule 

further confirms that ‘‘[d]ecisions made 

under the NSR and/or PSD programs 

define certain applicable SIP 

requirements for the title V source.’’ 57 

FR 32250, 32259 (July 21, 1992) 

(emphasis added). 

3. Revised Title V Approach to NSR 

(1997–2017) 

Once state permitting authorities 

began issuing title V permits in the midto-late-1990s, the EPA began receiving 

public petitions challenging those 

permits. Some of the earliest title V 

petitions included challenges to various 

types of NSR permitting decisions, 

proving a test to the statements the EPA 

made when promulgating its part 70 

rules. The EPA’s approach ultimately 

differed depending on whether the 

underlying NSR permit was issued 

under the EPA’s federal PSD rules (40 

CFR 52.21, administration of which was 

delegated to many states at the time) or 

under EPA-approved SIP rules. 

For NSR permits issued under the 

federal rules, the EPA’s petition 

responses from 1997 onward followed 

the agency’s interpretations and 

statements of intent from the early 

1990s. In other words, the EPA declined 

to use the title V petition process to 

review the merits of NSR permits issued 

by the EPA or a delegated agency under 

a FIP. The EPA’s reasoning at the time 

was that appeals of such NSR permits 

are governed by 40 CFR 124.19 and are 

heard exclusively by the EPA 

Environmental Appeals Board (EAB). 

Thus, the EPA concluded that it need 

not entertain claims that such permits 

are deficient when raised in a petition 

to object to a title V permit.47 The EPA 

consistently reiterated the same or 

similar statements in the decades that 

followed.48

However, starting in 1997, the EPA 

adopted a different approach to title V 

permitting with respect to NSR permits 

issued by state permitting authorities 

under EPA-approved SIP rules.49 The 

EPA began to interpret section (1) of the 

definition of ‘‘applicable requirement’’ 

to allow the EPA, states, and the public 

to use the title V permitting process to 

examine the propriety of prior title I 

permitting decisions. For instance, in 

the 1997 Shintech I Order, the EPA 

stated: 

Where a state or local government has a 

SIP-approved PSD program, the merits of 

PSD issues can be ripe for consideration in 

a timely petition to object under Title V. 

Under 40 CFR 70.1(b), ‘‘all sources subject to 

Title V must have a permit to operate that 

assures compliance by the source with all 

applicable requirements.’’ Applicable 

requirements are defined in section 70.2 to 

include ‘‘(1) any standard or other 

requirement provided for in the applicable 

implementation plan approved or 

promulgated by EPA through rulemaking 

under Title I of the [Clean Air] Act . . . .’’ 

The [state] defines ‘‘federal applicable 

requirement,’’ in relevant part, to include 

‘‘any standard or other requirement provided 

for in the Louisiana [SIP] approved or 

promulgated by EPA through rulemaking 

under title I of the Clean Air Act that 

implements the relevant requirements of the 

Clean Air Act, including any revisions to that 

plan promulgated in 40 CFR part 52, subpart 

T.’’ Thus, the applicable requirements of the 

Shintech Permits include the requirement to 

obtain a PSD permit that in turn complies 

with the applicable PSD requirements under 

the Act, EPA regulations, and the Louisiana 

SIP.50

In a 1999 letter responding to requests 

from permitting authorities, the Director 

of the EPA Office of Air Quality 

Planning and Standards articulated the 

agency’s then-current understanding of 

the interaction of title I and title V.51

The letter stated that ‘‘applicable 

requirements include the requirement to 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
1162 Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 

52See, e.g., Approval and Promulgation of 

Implementation Plans; Oregon, 68 FR 2891, 2899 

(Jan. 22, 2003); see also Approval and Promulgation 

of Implementation Plans; Idaho; Designation of 

Areas for Air Quality Planning Purposes; Idaho, 68 

FR 2217, 2221 (Jan. 16, 2003). 

53 In the Matter of Roosevelt Regional Landfill, 

Order on Petition, 9 (May 4, 1999). 

54See, e.g., Spurlock I Order at 4–5 (Aug. 30, 

2007) (‘‘The standard of review applied by the EAB 

in its review of federal PSD permits has been 

explained in numerous orders of the EAB. In short, 

in such appeals, the burden is on a petitioner to 

demonstrate that review is warranted. Ordinarily, a 

PSD permit will not be reviewed by the EAB unless 

the decision of the permitting authority was based 

on either a clearly erroneous finding of fact or 

conclusion of law, or involves an important matter 

of policy or exercise of discretion that warrants 

review. Thus, when a response to a petition to 

object to a title V permit requires the Administrator 

to determine whether an approved state’s PSD 

permitting decision was adequately explained and 

meets the requirements of its SIP, EPA believes it 

is appropriate to apply a similar standard of review 

to that employed by the EAB in its review of federal 

PSD permits. When EPA promulgated the 

regulations governing the EAB’s exercise of its 

review authority, the Agency noted that the power 

of review ‘should be only sparingly exercised.’ 

Similar deference to the permitting authority is also 

justified in the case of a PSD permit issued by a 

state with an approved PSD program, as is the case 

here.’’ (quoting 45 FR 33290, 33412 (May 19, 1980); 

citing In re Prairie State Generating Company, 13 

E.A.D. 1 (EAB 2006); In re Kawaihae Cogeneration, 

7 E.A.D. 107 (EAB 1997)). 

55 In the Matter of Appleton Coated, LLC, Order 

on Petition Nos. V–2013–12 & V–2013–15 at 5 (Oct. 

14, 2016) (Appleton Order) (citations omitted). 

56 In the Matter of Georgia Pacific Consumer 

Products LP Plant, Order on Petition No. V–2011– 

1 at 17 (July 23, 2012); Spurlock I Order at 19; see 

In the Matter of Chevron Products Company, 

Richmond, California Facility, Order on Petition 

No. IX–2004–08 at 9 (Mar. 15, 2005). Note that this 

statement is based on the EPA policy articulated in 

the 1999 letter discussed in footnote 51. 

obtain preconstruction permits that 

comply with applicable preconstruction 

review requirements under the Act, EPA 

regulations, and SIP’s.’’ The letter 

expressed the view that section 505(b) 

of the Act provides a form of corrective 

action in addition to all the other 

enforcement authorities the EPA has 

under the Act. It stated that generally 

the agency will not object to a title V 

permit for NSR determinations ‘‘made 

long ago during a prior preconstruction 

permitting process.’’ However, regarding 

recently issued NSR permits, the EPA 

indicated it may object to improper NSR 

determinations. Additionally, the letter 

said that the EPA could object to a title 

V permit where ‘‘EPA believes that an 

emission unit has not gone through the 

proper preconstruction permitting 

process.’’ 

The EPA has also used this reading of 

the agency’s oversight authority under 

title V as part of the justification for 

approving state PSD programs.52 In 

these approvals, the EPA pointed to its 

authority under title I, sections 113 and 

167, and stated that title V ‘‘has added 

new tools’’ for addressing concerns with 

implementation of PSD requirements by 

allowing for objection to title V permits 

under section 505(b) of the Act. 

However, the authority to revisit an 

issued preconstruction permit does not 

appear to have been dispositive to the 

approval of these PSD programs, as EPA 

could still conduct oversight using its 

title I-based authorities. 

The EPA implicitly or explicitly 

followed this approach in responding to 

title V petitions between 1997 and 2017. 

In general, the petition claims at issue 

alleged two types of defects related to 

NSR: First, some claims alleged flaws 

with the terms of major NSR permits 

issued by a state permitting authority— 

for example, that BACT limits in a PSD 

permit were not stringent enough. The 

EPA refers to these claims as addressing 

‘‘NSR permit content.’’ Second, other 

claims alleged that a facility should 

have received a major NSR permit, 

instead of a minor NSR permit, to 

authorize the construction of a new 

source or modification. The EPA refers 

to these claims as addressing ‘‘NSR 

applicability.’’ For both types of issues, 

the EPA indicated that the agency could 

review whether preconstruction 

permitting decisions complied with the 

requirements of the SIP. 

During this time period, the EPA often 

limited or qualified its use of title V 

authorities to address substantive NSR 

permitting issues. For example, in 1999, 

the agency stated: 

In determining BACT under a minor NSR 

program, as in implementing other aspects of 

SIP preconstruction review programs, a State 

exercises considerable discretion. Thus, EPA 

lacks authority to take corrective action 

merely because the Agency disagrees with a 

State’s lawful exercise of discretion in 

making BACT-related determinations. State 

discretion is bounded, however, by the 

fundamental requirements of administrative 

law that agency decisions not be arbitrary or 

capricious, be beyond statutory authority, or 

fail to comply with applicable procedures.53

Applying this framework, the EPA has 

also drawn an analogy between this 

approach and the standard used by the 

EAB in reviewing EPA-issued PSD 

permits, described as a ‘‘clearly 

erroneous’’ standard.54 More recently, 

the agency summarized this framework 

as follows: 

Where a petitioner’s request that the 

Administrator object to the issuance of a title 

V permit is based in whole, or in part, on a 

permitting authority’s alleged failure to 

comply with the requirements of its 

approved PSD program (as with other 

allegations of inconsistency with the Act), 

the burden is on the petitioner to 

demonstrate to the Administrator that the 

permitting decision was not in compliance 

with the requirements of the Act, including 

the requirements of the SIP. As the EPA has 

explained in describing its authority to 

oversee the implementation of the PSD 

program in states with approved programs, 

such requirements include that the 

permitting authority: (1) follow the required 

procedures in the SIP; (2) make PSD 

determinations on reasonable grounds 

properly supported on the record; and (3) 

describe the determinations in enforceable 

terms. As the permitting authority for [the 

state’s] SIP-approved PSD program, [the state 

agency] has substantial discretion in issuing 

PSD permits. Given this discretion, in 

reviewing a PSD permitting decision in the 

title V petition context, the EPA generally 

will not substitute its own judgment for that 

of [the state]. Rather, consistent with the 

decision in Alaska Dep’t of Envt’l 

Conservation v. EPA, 540 U.S. 461 (2004), in 

reviewing a petition to object to a title V 

permit raising concerns regarding a state’s 

PSD permitting decision, the EPA generally 

will look to see whether the petitioner has 

shown that the state did not comply with its 

SIP-approved regulations governing PSD 

permitting, or whether the state’s exercise of 

discretion under such regulations was 

unreasonable or arbitrary.55

Between 1997 and 2017, the EPA 

occasionally articulated further 

restrictions on the use of title V 

oversight tools to address title I 

permitting issues. For example, on at 

least three occasions, the EPA indicated 

that ‘‘the Agency generally does not 

object to the issuance of a title V permit 

due to concerns over BACT or related 

determinations made long ago during a 

prior preconstruction permitting 

process.’’ 56

Additionally, on at least one occasion, 

the EPA suggested that the title V 

petition demonstration burden may 

require a final determination that NSR 

applies before the EPA can use the title 

V process to overturn an NSR 

applicability decision made by the 

permitting authority. The EPA found 

‘‘that [the state] has not reached a final 

determination in this permitting context 

that PSD is an applicable requirement 

for these sources, that the USEPA has 

not determined otherwise, and that a 

court has not issued a determination in 

the litigation context. Accordingly, there 

is no requirement under the facts of this 

case for the permits to include either 

PSD limits or a compliance schedule for 

the source to come into compliance 

with such limits at this time.’’ The EPA 

concluded that ‘‘even if [the state] were 

to recognize that the potential for 

noncompliance [with title I 

preconstruction permitting 

requirements] exists, it is not required to 

pursue inquiries further in the title V 

context,’’ but instead could pursue the 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 1163 

57 In the Matter of Midwest Generation-Joliet 

Generating Station and Will County Generating 

Stations, Order on Petition No. V–2005–2 at 9–10 

(June 14, 2007). 

58 In the Matter of PacifiCorp Energy, Hunter 

Power Plant, Order on Petition No. VIII–2016–4 

(Oct. 16, 2017). 

59PacifiCorp-Hunter I Order at 10–11. As the EPA 

explained: ‘‘This interpretation applies to the facts 

of this Claim, where a permitting authority issued 

a source-specific title I preconstruction permit 

subject to public notice and comment and for which 

judicial review was available.’’ Id. at 11 n.21. 

60PacifiCorp-Hunter I Order at 19 (citing 42 

U.S.C. 7661c(a); 40 CFR 70.6(a)(3), 70.6(c)(1)). 

61 In the Matter of Big River Steel, LLC, Order on 

Petition No. VI–2013–10 (Oct. 31, 2017). 

62See, e.g., PacifiCorp-Hunter I Order at 11 n.21 

(‘‘This interpretation applies to the facts of this 

Claim, where a permitting authority issued a 

source-specific title I preconstruction permit subject 

to public notice and comment and for which 

judicial review was available. The EPA is not 

considering at this time whether other 

circumstances may warrant a different approach.’’); 

Sierra Club v. EPA, 926 F.3d 844, 850 (D.C. Cir. 

2019) (emphasizing the case-specific nature the 

EPA’s decision to apply the interpretation at issue 

in PacifiCorp-Hunter I, as well as the case-specific 

nature of any future EPA decisions to apply or not 

apply the same interpretation to different fact 

patterns). 

63 In recent permitting decisions and title V 

petitions, the EPA has observed that both state 

permitting authorities and public petitioners have 

often misapplied, misinterpreted, or ignored the 

interpretations and policies expressed in these 

orders. 

64AK Steel Order at 9–13; In the Matter of 

Riverview Energy Corp., Order on Petition No. V– 

2019–10 at 19–29 (Mar. 26, 2020) (Riverview Order); 

In the Matter of South Louisiana Methanol, LP, St. 

James Methanol Plant, Order on Petition Nos. VI– 

2016–24 & VI–2017–014 at 8–10 (May 29, 2018) 

(South Louisiana Methanol Order); Big River Steel 

Order at 8–20. 

65 In the Matter of Delaware City Refining 

Company, LLC, Delaware City Refinery, Order on 

Petition No. III–2022–10 at 26 (July 5, 2023) 

(Delaware City Refinery Order); In the Matter of 

Valero Refining-Texas, L.P., Valero Houston 

Refinery, Order on Petition No. VI–2021–8 at 65– 

66 (June 30, 2022) (Valero Houston Order); In the 

Matters of Superior Silica Sands & Wisconsin 

Proppants, LLC, Order on Petition Nos. V–2016–18 

& V–2017–2 at 14–15 (Feb. 26, 2018) (SSS/WP 

Order); In the Matter of Tennessee Valley Authority, 

Gallatin Fossil Plant, Order on Petition Nos. IV– 

2016–11 & IV–2017–17 at 19–20 (January 30, 2018) 

(TVA Gallatin II Order). 

66Riverview Order at 19–21; Big River Steel Order 

at 8–20. 

67AK Steel Order at 9–13. 

68 In the Matter of Waelz Sustainable Products, 

LLC, Order on Petition No. V–2021–10 at 9–16 (Mar. 

14, 2023) (Waelz Order); In the Matter of Yuhuang 

Chemical Inc. Methanol Plant, Order on Petition 

Nos. VI–2017–5 & VI–2017–13 at 7–8 (Apr. 2, 2018) 

(Yuhuang II Order); In the Matter of ExxonMobil 

Corp., Baytown Olefins Plant, Order on Petition No. 

Continued 

matter through title I enforcement 

mechanisms.57

4. Current Title V Approach to NSR 

(2017–Present) 

Beginning in 2017, the EPA adopted 

a more nuanced view that, in the EPA’s 

present opinion, better reflects not only 

the statute and Congress’s intent, but 

also the EPA’s regulatory definition of 

‘‘applicable requirement’’ and the 

manner in which the title V permitting 

program interacts with other types of 

CAA requirements. As with many of the 

EPA’s views on this topic, the EPA’s 

updated view was articulated within 

Administrator-signed orders responding 

to title V petitions on individual title V 

permits. 

The first such order was the 2017 

PacifiCorp-Hunter I Order.58 There, the 

EPA interpreted the CAA and the EPA’s 

title V regulations to not require 

permitting authorities (including the 

EPA) to examine the merits of certain 

title I permitting decisions in the title V 

permitting context. Specifically, in 

response to a petition claiming that a 

PSD permit (instead of a minor NSR 

permit) was required for certain changes 

that occurred at the facility at issue 

approximately 20 years prior, the EPA 

explained: 

In circumstances such as those present 

here where a preconstruction permit has 

been duly obtained, . . . when a permitting 

authority has made a source-specific 

permitting decision with respect to a 

particular construction project under title I, 

those decisions ‘‘define certain applicable 

SIP requirements for the title V source’’ for 

purposes of title V permitting. 57 FR 32250, 

32259 (July 21, 1992). The EPA is now 

interpreting the regulations to mean that the 

issuance of a[n NSR] permit defines the 

applicability of preconstruction requirements 

under section (1) of the definition of 

‘‘applicable requirement’’ for the approved 

construction activities for the purposes of 

permitting under title V of the Act. . . . 

These source-specific permitting actions take 

the general preconstruction permitting 

requirements of the SIP—the requirement to 

obtain a particular type of permit and the 

substantive requirements that must be 

included in each type of permit—and 

evaluate at the time of the permitting 

decision whether and how to apply them to 

a proposed construction or modification.59

Further, the EPA stated: 

Consistent with this reading, permitting 

agencies and the EPA need not reevaluate— 

in the context of title V permitting, oversight, 

or petition responses—previously issued 

final preconstruction permits, especially 

those that have already been subject to public 

notice and comment and an opportunity for 

judicial review. Concerns with these final 

preconstruction permits should instead be 

handled under the authorities found in title 

I of the Act. Where a final preconstruction 

permit has been issued, whether it is a major 

or minor NSR permit, the terms and 

conditions of that permit should be 

incorporated as ‘‘applicable requirements’’ 

and the permitting authority and the EPA 

should limit its review to whether the title 

V permit has accurately incorporated those 

terms and conditions and whether the title V 

permit includes adequate monitoring, 

recordkeeping, and reporting requirements to 

assure compliance with the terms and 

conditions of the preconstruction permit.60

Shortly after issuing the PacifiCorpHunter I Order, the EPA issued the Big 

River Steel Order,61 which applied 

similar statutory and regulatory 

interpretations to a different set of facts. 

In Big River Steel, the EPA declined to 

use the title V petition process to review 

whether a PSD permit satisfied the 

relevant SIP requirements governing 

PSD permit content (including BACT) 

and modeling related to the NAAQS. 

The EPA did so notwithstanding the fact 

that the PSD permit at issue, and the 

title V permit being petitioned, were 

issued at the same time and in the same 

physical permit document. The EPA’s 

rationale was fully expressed within the 

PacifiCorp-Hunter I and Big River Steel 

Orders. To the extent those or similar 

rationales are relevant to this proposed 

rulemaking, they are presented in 

section IV.E. of this preamble. 

Since the 2017 PacifiCorp-Hunter I 

and Big River Steel Orders, the EPA has 

issued approximately 20 other title V 

petition orders addressing similar issues 

under different fact patterns. Although 

the EPA has consistently followed the 

overarching interpretations and policies 

articulated in the PacifiCorp-Hunter I 

and Big River Steel Orders, each 

decision about whether those 

interpretations were applicable 

depended on the specific facts at 

issue.62 Through these case-by-case 

decisions, the EPA has clarified various 

aspects of the EPA’s interpretation of 

the title V provisions. However, because 

those decisions are spread across many 

different orders, the EPA understands 

that not all stakeholders—including 

permitting authorities, permittees, and 

members of the public—may fully 

understand the EPA’s views about 

which types of issues are, or are not, 

subject to review through title V.63 This 

preamble summarizes the most relevant 

aspects of these prior decisions in order 

to provide additional clarity about the 

EPA’s current views. 

In some of these decisions, the EPA 

concluded that NSR permitting actions 

established the relevant ‘‘applicable 

requirements’’ for title V purposes, and 

the EPA declined to review the 

substance of those applicable 

requirements in the title V petition 

context. The EPA applied this approach 

to many different types of issues, 

including the sufficiency of major NSR 

permit terms,64 the sufficiency of minor 

NSR permit terms,65 issues related to 

modeling and the NAAQS,66 procedures 

used to issue NSR permits,67 whether 

major NSR is applicable,68 and other 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
1164 Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 

VI–2016–12 at 9–12 (ExxonMobil Baytown Olefins 

Order); PacifiCorp-Hunter I Order at 8–20. 

69 In the Matter of ExxonMobil Corp., Baytown 

Refinery, Order on Petition No. VI–2016–14 at 12– 

13 (ExxonMobil Baytown Refinery Order); 

ExxonMobil Baytown Olefins Order at 9–12 . 

70 Delaware City Refinery Order at 16; Valero 

Houston Order at 65–66; ExxonMobil Baytown 

Refinery Order at 12–13, ExxonMobil Baytown 

Olefins Order at 9–12; TVA Gallatin II Order at 19– 

20. 

71Waelz Order at 13–15; Riverview Order at 24– 

28; South Louisiana Methanol Order at 9; Yuhuang 

II Order at 7–8; SSS/WP Order at 14–15; Big River 

Steel Order at 8–20. 

72 In the Matter of Gulf Coast Growth Ventures, 

LLC, Olefins, Derivative, & Utilities Plant, Order on 

Petition No. VI–2021–3 at 17–19 (May 12, 2022) 

(Gulf Coast Growth Ventures Order); ExxonMobil 

Baytown Chemical Order at 20–21; South Louisiana 

Methanol Order at 10–11; Yuhuang II Order at 8; 

see also, e.g., Big River Steel Order at 17, 17 n.30, 

19 n.32, 20; PacifiCorp-Hunter I Order at 16, 17, 18, 

18 n.33, 19. 

73Suncor East Order at 53–54; ExxonMobil 

Baytown Chemical Order at 13–14; In the Matter of 

Coyote Station Power Plant, Order on Petition Nos. 

VIII–2019–1 & VIII–2020–8 at 12–13 (January 15, 

202) (Coyote Station Order). 

74Suncor East Order at 45–48, 54–55; SRP Agua 

Fria Order at 11 n.18; In the Matter of Salt River 

Project Agricultural Improvement & Power District, 

Desert Basin Generating Station, Order on Petition 

No. IX–2022–3 at 12 n.20 (July 28, 2022) (SRP 

Desert Basin Order); In the Matter of BP Products 

North America, Inc., Whiting Business Unit, Order 

on Petition No. V–2021–9 at 13 n.24 (Mar. 4, 2022) 

(BP Whiting II Order). 

75Suncor East Order at 48; Coyote Station Order 

at 12. 

76The court stated its conclusion several ways, as 

the following examples illustrate: ‘‘Concluding 

EPA’s interpretation of the Title V program is 

independently persuasive and therefore entitled to 

the mild form of deference recognized by Skidmore 

v. Swift & Co., 323 U.S. 134 (1944), we deny the 

petition.’’ 969 F.3d at 242. ‘‘[W]e find [the EPA’s] 

reasoning persuasive as a construction of the 

relevant provisions of Title V and its implementing 

regulations.’’ Id. at 247. ‘‘Applying Skidmore, we 

ask whether EPA’s interpretation of Title V and its 

implementing regulations in the Hunter Order is 

persuasive. Specifically, we inquire into the 

persuasiveness of EPA’s current view that the Title 

V permitting process does not require substantive 

reevaluation of the underlying Title I 

preconstruction permits applicable to a pollution 

source. As we read it, the Hunter Order defends the 

agency’s interpretation based principally on Title 

V’s text, Title V’s structure and purpose, and the 

structure of the Act as a whole. Having examined 

these reasons and found them persuasive, we 

conclude that EPA’s current approach to Title V 

merits Skidmore deference.’’ Id. at 249. 

77 In the Matter of PacifiCorp Energy, Hunter 

Power Plant, Order on Petition Nos. VIII–2016–4 & 

VIII–2020–10 (Jan. 13, 2021). 

78 In the Matter of PacifiCorp Energy, Hunter 

Power Plant, Order on Petition No. VIII–2022–2 

(Sept. 27, 2022). 

79PacifiCorp-Hunter III Order at 16 n.29; see also 

PacifiCorp-Hunter II Order at 15 n.26. 

80See Suncor East Order at 46 n.61; Gulf Coast 

Growth Ventures Order at 17 n.28; ExxonMobil 

Baytown Chemical Order at 14 n.27; BP Whiting II 

Order at 13 n.24; Coyote Station Order at 12. 

NSR-related issues.69 Some of these 

orders involved situations where NSR 

permits were issued well before the title 

V permits being challenged,70 while 

others involved more contemporaneous 

NSR and title V permitting decisions.71

In other orders with materially 

different factual underpinnings, the EPA 

determined that it would be appropriate 

to review certain NSR-related issues 

through the title V permitting process. 

For example, the EPA substantively 

engaged with title V petition claims 

concerning the sufficiency of 

monitoring established in NSR 

permits,72 requirements involving an 

explicit overlap between NSR and title 

V,73 and other NSR issues where no 

underlying NSR permit was issued 74 or 

where the underlying NSR permit did 

not involve public notice and the 

opportunity for comment.75

Two of the EPA’s petition orders—the 

PacifiCorp Hunter I Order and the 

ExxonMobil Baytown Olefins Order— 

were challenged in different federal 

circuit courts. The U.S. Court of 

Appeals for the Fifth Circuit issued the 

first ruling, upholding the ExxonMobil 

Baytown Olefins Order. Env’t Integrity 

Project v. EPA, 969 F.3d 529 (5th Cir. 

2020). There, the court found persuasive 

the ‘‘EPA’s view that Title V permitting 

is not the appropriate vehicle for 

reexamining the substantive validity of 

underlying Title I preconstruction 

permits.’’ Id. at 253. The court’s 

conclusion was ‘‘based principally on 

Title V’s text, Title V’s structure and 

purpose, and the structure of the Act as 

a whole.’’ Id. at 249.76

Shortly thereafter, the U.S. Court of 

Appeals for the Tenth Circuit issued a 

ruling vacating and remanding the 

PacifiCorp-Hunter I Order. Sierra Club 

v. EPA, 964 F.3d 882 (10th Cir. 2020). 

Unlike the Fifth Circuit, the Tenth 

Circuit did not address the EPA’s 

statutory interpretation but instead 

rejected the EPA’s reasoning as 

inconsistent with the EPA’s regulations. 

Id. at 897. According to the Tenth 

Circuit, the EPA’s regulations require 

that title V permits ensure compliance 

with all ‘‘applicable requirements,’’ 

which the court interpreted to include 

all requirements in the SIP, including 

those related to major NSR. Id. at 885– 

86, 890–91. 

Because these two courts ruled on 

different grounds (with the Fifth Circuit 

focusing on the statute, and the Tenth 

Circuit focusing on the EPA’s existing 

regulations), the legal reasoning 

underlying their holdings is not in 

direct conflict. However, for practical 

purposes, the differing rulings have 

made it difficult for the EPA to apply a 

uniform interpretation of its current title 

V regulations nationwide. 

Within the Tenth Circuit’s 

jurisdiction, in the EPA’s subsequent 

responses to petitions on the PacifiCorpHunter permit (PacifiCorp-Hunter II 77

and PacifiCorp-Hunter III 78), the EPA 

reviewed whether a source should have 

obtained a major NSR permit for 

projects previously authorized by a 

minor NSR permit. This review was 

based on the Tenth Circuit’s decision on 

the PacifiCorp-Hunter I Order. 

In title V petition orders regarding 

permits issued by states outside of the 

Tenth Circuit, however, the EPA has 

followed a different approach. As the 

EPA has explained: 

EPA continues to believe that the 

interpretation of the CAA upheld by the Fifth 

Circuit’s decision in Environmental Integrity 

Project v. EPA, 969 F.3d 529 (5th Cir. 2020), 

is correct. EPA thus intends, where 

supported by the facts of individual permits, 

to continue to apply the reasoning of In re 

Big River Steel, LLC, Order on Petition No. 

VI–2013–10 (October 31, 2017), when issuing 

and reviewing title V permits and reviewing 

petitions on permits for sources in states 

outside of the Tenth Circuit. That is, where 

EPA has approved a state’s title I permitting 

program, duly issued preconstruction 

permits establish the NSR-related ‘‘applicable 

requirements’’ for the purposes of title V. As 

with ‘‘applicable requirements’’ established 

through other CAA authorities, the terms and 

conditions of those permits should be 

incorporated into a source’s title V permit 

without a further round of substantive review 

as part of the title V process.79

Thus, when reviewing permits issued 

by permitting authorities in states 

beyond the Tenth Circuit’s jurisdiction, 

the EPA has continued to apply its 

approach dating back to 2017 and has, 

in many instances, declined to use the 

title V process to review the substance 

of NSR permitting decisions. In the 

situations outside the Tenth Circuit 

where the EPA decided that it was 

appropriate to use the title V process to 

review certain NSR issues, these 

decisions were not based on the Tenth 

Circuit’s interpretation of the EPA’s 

regulations, but rather on factual 

distinctions that, in the EPA’s view, 

provided a basis for reviewing such 

issues under EPA’s post-2017 

interpretation of the regulations.80

As explained in the next section of 

this preamble, the EPA continues to 

maintain that the Big River Steel Order 

and subsequent title V orders reflect the 

best interpretation not only of the 

relevant statutory provisions, but also of 

the existing regulations. Nonetheless, in 

light of the differing circuit court 

decisions, the EPA considers it prudent 

to update the EPA’s regulations to 

reflect its interpretation of the statute. 

The changes proposed in this 

rulemaking will allow the EPA to apply 

a single framework across the nation by 

amending the text in the regulations. 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 1165 

81For additional information about how the 

EPA’s approach to SIP-based NSR permits comports 

with the structure of the CAA and congressional 

intent, see sections IV.E.2. and IV.E.3. of this 

preamble. 

82This is consistent with the existing regulatory 

definition of ‘‘applicable requirement,’’ which treats 

SIP-based and FIP-based requirements the same. 

See 40 CFR 70.2, 71.2 (definition of applicable 

requirement, items (1) and (2)). 83The EPA’s existing regulations reflect this fact. 

The current definition of ‘‘applicable requirement’’ 

includes ‘‘Any term or condition of any 

preconstruction permits issued pursuant to 

regulations approved or promulgated through 

rulemaking under title I, including Parts C or D, of 

the Act.’’ 40 CFR 70.2 (emphasis added). This 

definition includes not only the specifically listed 

major NSR permits (required under parts C or D), 

but also minor NSR permits issued under a SIP. 

This language, included in the 1992 final rule, 

reflects a change from the language in the 1991 

proposed rule, which only included major NSR 

permits. See 57 FR at 32276; 56 FR at 21768. 

Nonetheless, in order to provide maximum clarity 

to the public, the EPA proposes a small change to 

make the inclusion of minor NSR permit 

requirements more explicit. Note that not every 

single term of every single NSR permit is an 

‘‘applicable requirement’’ that must be included in 

a title V permit. Some terms of NSR permits may 

no longer be applicable because, for example, they 

are obsolete or extraneous. See White Paper for 

Streamlined Development of Part 70 Permit 

Applications, 7–16 (July 10, 1995). 

This action thus addresses the ruling 

from the Tenth Circuit by amending the 

regulatory language that it found to be 

in conflict with the EPA’s current 

interpretation. It also more clearly aligns 

the EPA’s regulations with the EPA’s 

statutory interpretation endorsed by the 

Fifth Circuit. 

B. Proposed Action 

The EPA proposes to update its 

regulations to more closely reflect the 

agency’s current view regarding the 

intersection between title I permitting 

and title V permitting. In sum: provided 

a source obtains an NSR permit under 

EPA-approved (or EPA-promulgated) 

title I rules, with public notice and the 

opportunity for comment and judicial 

review, such NSR permit establishes the 

NSR-related ‘‘applicable requirements’’ 

of the SIP (or FIP) for purposes of title 

V. As with ‘‘applicable requirements’’ 

established under other CAA authorities 

(e.g., NSPS, NESHAP), the EPA would 

not revisit those NSR decisions through 

the title V process. 

The following subsections of this 

preamble explore the situations in 

which NSR-related applicable 

requirements of the SIP (or FIP) would 

effectively be established through the 

NSR process, as well as situations in 

which the title V process could be used 

to further address or define those 

requirements. Determining the extent to 

which title V should be used to address 

NSR-related requirements inherently 

requires a fact-specific, case-by-case 

analysis of multiple variables associated 

with both title I and title V permitting. 

However, in general, the EPA’s 

framework applies similarly regardless 

of: (i) the stage of the title V permitting 

or oversight process at issue; (ii) the 

NSR permit’s origin (i.e., from a SIP or 

a FIP), (iii) the type of substantive NSR 

requirement at issue (e.g., NSR permit 

terms or major NSR applicability); and 

(iv) the procedures by which the NSR 

permit is incorporated into the title V 

permit (e.g., sequentially or 

concurrently issued permits). 

1. Different Stages of the Title V 

Permitting and Oversight Process 

The EPA’s views regarding the NSRtitle V interface have primarily been 

discussed in the context of one specific 

oversight tool: the EPA’s responses to 

title V petitions. This rulemaking would 

further codify the scope of issues that 

would be within, or beyond, the scope 

of the EPA’s review in responding to 

title V petitions. However, the concepts 

underlying the EPA’s current view—as 

well as this proposed rule—are not 

confined to title V petitions, but extend 

to other aspects of title V permitting. 

Specifically, the EPA’s approach is 

equally relevant: (i) when prospective 

permittees prepare title V permit 

applications; (ii) when permitting 

authorities (including EPA, where 

applicable) develop title V permits and 

respond to public comments on draft 

title V permits, (iii) when EPA reviews 

and decides whether to object to 

proposed title V permits during its 45- 

day review period; (iv) when EPA 

considers reopening title V permits for 

cause; and (v) when EPA considers 

other programmatic oversight actions 

under, for example, 40 CFR 70.10. 

2. Different Origins of NSR Permits 

As described earlier in this preamble, 

the EPA’s approach to reviewing NSR 

issues through title V diverged in the 

late-1990s, depending on whether the 

underlying NSR permit was issued 

under a state’s EPA-approved SIP rules 

(which the EPA would review) or EPApromulgated FIP rules (which the EPA 

would not review). At the time, this 

distinction was based on the differing 

routes to review such NSR permitting 

actions; appeals of SIP-based NSR 

permits were reviewed through the state 

court system, while appeals of FIPbased NSR permits proceeded through 

the EAB and federal court system. 

Instead of presenting a basis to treat 

SIP-based and FIP-based title I permits 

differently, these NSR permit appeal 

pathways highlight why they should be 

treated similarly. Both SIP-based and 

FIP-based appeal pathways promote 

public involvement and ensure the 

substantive validity of the underlying 

NSR permitting decisions. Both 

pathways are similar to those used to 

establish (and, if necessary, challenge) 

other types of applicable requirements 

of the CAA. See section IV.E.4.a. of this 

preamble for additional information. 

The fact that one pathway leads to the 

state courts, and the other pathway 

leads to the federal courts, simply 

reflects the cooperative federalism 

system established by Congress for the 

NSR program.81

Overall, the EPA does not view the 

difference between NSR-based 

requirements established pursuant to a 

SIP, or NSR-based requirements 

established pursuant a FIP, to be 

meaningful insofar as title V is 

concerned. Both processes effectively 

establish and define the NSR-related 

requirements of title I for title V 

purposes. Accordingly, the EPA’s 

proposed rule would codify the EPA’s 

current approach, which does not 

differentiate between NSR permits 

issued pursuant to a SIP or a FIP.82

3. Different Types of NSR Requirements 

The EPA’s current (and proposed) 

approach applies regardless of the types 

of NSR requirements involved. That is, 

once an NSR permit has been issued 

under EPA-approved (or EPApromulgated) title I rules, with public 

notice and the opportunity for comment 

and judicial review, that NSR permit 

defines the NSR-related requirements of 

the SIP (or FIP) that are applicable to the 

construction of the new source or 

modification that was the subject of the 

permit. The terms of both major and 

minor NSR permits are applicable 

requirements that must be included in 

title V permits.83 These permit 

conditions are not derived or created 

within or through the title V process. 

Thus, the title V permitting process 

should not be used to reevaluate the 

terms of such major NSR or minor NSR 

permits, including questions about (i) 

the content of the NSR permit (e.g., 

whether the permit limits reflect BACT), 

(ii) whether additional requirements 

(e.g., major NSR requirements) should 

have been applicable to the 

construction, and (iii) other types of 

NSR requirements (e.g., whether the 

permitting authority correctly 

determined that the construction would 

not cause or contribute to a violation of 

the NAAQS). 

This principle is perhaps most 

intuitive with respect to permit content. 

When a permitting authority authorizes 

construction by issuing either a major 

NSR permit or minor NSR permit, it 

establishes emission limits and other 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
1166 Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 

84For example, questions about whether (i) an 

emission limit that purports to satisfy BACT should 

instead be made more stringent in order to satisfy 

BACT are similar to questions about whether (ii) an 

emission limit that purports to satisfy minor NSR 

requirements should instead be made more 

stringent in order to satisfy BACT. 

85See section IV.E.4.a. of this preamble for 

additional discussion about how the EPA’s 

treatment of NSR applicability issues aligns with 

the EPA’s treatment of other types of CAA 

applicability issues. 

86 In this manner, not all NSR-based SIP 

requirements related to the NAAQS result in the 

imposition of requirements that apply to emission 

units at a source. As discussed previously, only 

those requirements that ‘‘apply to emissions units 

in a part 70 source’’ qualify as ‘‘applicable 

requirements’’ for title V purposes. 40 CFR 70.2; see 

40 CFR 71.2. 

87The references within CAA section 505(b) to 

‘‘any permit,’’ ‘‘the proposed permit,’’ ‘‘a permit,’’ 

‘‘the permit,’’ etc. apply to the title V permit that 

a permitting authority proposes to issue and 

transmits to EPA under CAA section 505(a)(1). 42 

U.S.C. 7661d(a), (b)(1), (b)(2); see also 40 CFR 

70.8(c)(1), (d) (similar language and cross-references 

as the statute), 70.12(a)(1) (requirement that 

petitioners identify the specific title V permit action 

on which the petition is based), 70.12(a)(2) (petition 

claims must be based on alleged deficiencies in the 

‘‘permit process’’ associated with the title V permit 

being petitioned). 

88See Century Aluminum Order at 19–20. 

standards necessary to satisfy the SIP 

requirements relevant to either major or 

minor NSR. For example, PSD permits 

must include emission limits reflecting 

BACT; NNSR permits must include 

emission limits reflecting the Lowest 

Achievable Emissions Rate (LAER), and 

minor NSR permits may contain 

analogous requirements depending on 

the terms of the SIP. Although SIPs 

contain general criteria for establishing 

those limits, individual permit actions 

are necessary to specifically define the 

limits for each source subject to NSR. 

Once these limitations are established 

through the NSR permitting process, the 

title V process should not be used to reevaluate whether the resulting limits 

reflect the general SIP requirements 

related to BACT, LAER, or other similar 

requirements. 

Similar concepts apply to questions 

about NSR applicability. SIPs contain 

general criteria and thresholds for 

determining the applicability of 

different SIP requirements. However, 

determining which specific 

requirements apply to individual 

emission units requires a fact-specific 

permitting exercise. When a permitting 

authority authorizes construction by 

issuing either a minor NSR permit or 

major NSR permit, it decides which 

NSR-related SIP requirements are 

applicable to different aspects of the 

project on a pollutant-by-pollutant 

basis. The resulting NSR permit might 

include PSD requirements (e.g., BACT) 

for some pollutants, NNSR requirements 

(e.g., LAER) for other pollutants, and/or 

minor NSR requirements for yet other 

pollutants. In this manner, within a 

single NSR permit action, questions 

about the applicability of different NSR 

requirements may be inextricably linked 

with questions about the content of the 

NSR permit. Further, questions about 

NSR permit content and NSR 

applicability are fundamentally similar 

because both questions seek to answer 

whether permit limits are set at a level 

stringent enough to satisfy the relevant 

general SIP requirements, and both 

questions require a highly technical 

application of general SIP criteria to 

specific circumstances at the source.84

Thus, once an NSR permit is issued, the 

limitations and other terms of that 

permit establish all relevant NSR-related 

requirements of the SIP (whether major 

or minor NSR) that apply to 

construction or modification of the 

source, and should be incorporated into 

the title V permit without further 

review.85

Permitting authorities satisfy other 

types of NSR requirements in a SIP 

when issuing NSR permits. One 

requirement that frequently arises in the 

context of title V petitions involves 

determining that the new source or 

modification will not cause or 

contribute to a violation of the NAAQS. 

Again, to satisfy this requirement, the 

state must undertake a fact-specific 

analysis through the NSR permitting 

process. This analysis may (but does not 

always) involve atmospheric dispersion 

modeling, and this may (but does not 

always) result in the imposition of 

additional permit terms that restrict 

emissions in order to protect the 

NAAQS.86 In all cases, the NSR 

permitting process is designed to ensure 

that the NSR permit ultimately contains 

whatever specific conditions are 

necessary to satisfy this NSR SIP 

requirement. Similar principles hold 

true for a variety of other substantive 

NSR requirements in SIPs, including a 

variety of requirements that are unique 

to NNSR. 

Overall, substantive issues concerning 

NSR permit content, NSR applicability, 

and other NSR requirements are 

fundamentally similar. Each of these 

decisions require a state to derive 

specific requirements for an individual 

source from general criteria in the NSR 

portion of the SIP (e.g., requirements to 

include limits reflecting certain 

technology-based criteria, to issue major 

NSR permits to projects meeting certain 

applicability criteria, or to ensure that 

permits meet certain criteria relevant to 

the NAAQS). Each of these 

determinations involve relatively 

complex, fact-specific decisionmaking, 

which occurs during the NSR permitting 

process. Once that process concludes, 

the state issues an NSR permit that 

contains these source-specific 

applicable requirements of the SIP for 

the construction project being 

authorized. Thus, under the EPA’s 

current (and proposed) approach, all 

types of different NSR-related issues are 

generally treated the same for purposes 

of title V review. The merit and validity 

of these substantive requirements are 

subject to review and correction through 

the available mechanisms for appeal of 

the NSR permit, and need not be further 

reviewed by a state permitting authority 

or the EPA through title V. 

Note that compliance with procedural 

requirements associated with the 

issuance of NSR permits are also subject 

to review in appeals of NSR permits and 

are also not directly reviewable through 

title V. However, the latter is for reasons 

not directly related to the interpretation 

of ‘‘applicable requirements’’ at issue in 

this proposed rule. Under the statute 

and the EPA’s existing regulations, the 

EPA can object to a title V permit that 

does not comply with ‘‘applicable 

requirements’’ of the CAA (as that term 

is defined in EPA regulations) or 

requirements of part 70, including 

procedural requirements of part 70. See 

42 U.S.C. 7661d(b); 40 CFR 70.8(c)(1), 

70.12(a)(2), (a)(2)(ii)–(iv). Notably, the 

EPA’s authority to object under CAA 

section 505(b) only extends to the 

particular proposed title V permit before 

the agency for review.87 Procedural 

requirements associated with NSR 

permit issuance are not ‘‘applicable 

requirements’’ for title V purposes 

because they do not ‘‘apply to emissions 

units at a part 70 source.’’ 40 CFR 70.2. 

Rather, they dictate the behavior of 

permitting authorities in issuing NSR 

permits. Procedural requirements 

associated with NSR permit issuance are 

also not part 70 requirements because 

they are not related to title V or the part 

70 regulations governing the issuance of 

a specific title V permit. Thus, alleged 

violations of procedural requirements 

associated with NSR permit issuance 

generally would not provide an 

independent basis for the EPA to object 

to a title V permit that incorporates such 

an NSR permit.88 Nonetheless, although 

procedural flaws with the issuance of an 

NSR permit would not provide a direct 

basis for the EPA to object to a title V 

permit, such procedural issues could 

impact whether other more substantive 

NSR issues should be reviewed through 

the title V process. See section IV.B.5.a. 

of this preamble for further information. 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 1167 

89Because it is the NSR permit that establishes 

the ‘‘applicable requirements’’ for title V purposes, 

the EPA has long explained that title V permits do 

not supersede title I permits—which must remain 

in effect to authorize construction and/or 

operations—even after the terms of a title I permit 

are incorporated into a title V permit. See, e.g., 69 

FR 10167, 10170 (Mar. 4, 2004); 66 FR 64039, 64040 

(Dec. 11, 2001); Letter from John S. Seitz, EPA, to 

Robert Hodanbosi & Charles Lagges, STAPPA/ 

ALAPCO, Encl. A at 4 (May 20, 1999). 

90The EPA considers it more appropriate to refer 

to the results of such streamlining as a combined 

‘‘permit,’’ as opposed to a combined ‘‘program.’’ 

This is because, although a single permit document 

may be used to satisfy both NSR and title V 

permitting requirements, the requirements of the 

NSR and title V programs are legally distinct. See 

Riverview Order at 25–26. 

91This process is similar to another mechanism 

for permit streamlining (not directly implicated by 

this rulemaking), under which a permitting 

authority may consolidate two procedures 

associated with title V permit issuance: the public’s 

review of a draft permit and the EPA’s review of 

a proposed permit. See 40 CFR 70.8(a)(1)(ii). 

92See South Louisiana Methanol Order at 9; SSS/ 

WP Order at 14–15. 

93See Waelz Order at 13–15; Riverview Order at 

24–28; Yuhuang II Order at 7–8; Big River Steel 

Order at 11–12. 

4. Different Procedures for Incorporating 

NSR Permits Into Title V Permits 

In most cases, the EPA’s current (and 

proposed) approach applies in the same 

way regardless of the procedures by 

which a state permitting authority 

incorporates the terms of an NSR permit 

into a title V permit. In other words, as 

long as a permitting authority formally 

issues an identifiable NSR permit that 

has the force of law 89—and regardless 

of whether the NSR and title V permits 

are issued sequentially, 

contemporaneously, or even in the same 

physical document—the unique title V 

oversight tools should not be used to 

review the NSR-related decisionmaking 

underlying that NSR permit. 

The EPA’s approach is most 

straightforward when an NSR permit is 

issued in final form prior to the 

initiation of any title V permitting 

action, or when an NSR permit has 

already been included in a previous 

version of a title V permit that is up for 

renewal. This is the default approach, as 

the EPA’s regulations allow regulated 

entities subject to major NSR 

preconstruction permitting 

requirements to submit a title V permit 

application within 1 year after 

beginning operation, in most cases. 40 

CFR 70.5(a)(1)(ii); 71.5(a)(1)(ii). 

Additionally, where new requirements 

become applicable to a source, 

including by virtue of a change to the 

source (e.g., minor NSR requirements), 

the timeline for reopening a source’s 

title V permit to include such 

requirements depends on the amount of 

time left in the title V permit; required 

revisions would either need to be 

completed within 18 months or at the 

next permit renewal. 40 CFR 

70.7(f)(1)(i), 71.1(f)(1)(i). Regardless of 

the specific timing, it should be 

straightforward in these instances to 

simply incorporate the applicable 

requirements from the previously 

finalized NSR permit into the title V 

permit. 

Not all NSR and title V permits are 

processed sequentially. Before 

discussing more streamlined permit 

issuance mechanisms, it is important to 

recognize that the NSR and title V 

permitting programs are based on 

distinct federal and state statutory and 

regulatory authorities and feature 

significant differences in both their 

substantive and procedural 

requirements. However, the two 

programs do feature some overlapping 

public participation requirements, 

including requirements for public 

notice, the opportunity for public 

comment, and the opportunity for 

judicial review. Accordingly, some state 

permitting authorities choose to 

streamline permit issuance by 

conducting one process that satisfies 

both sets of overlapping requirements. 

Based on the EPA’s experience, the 

mechanisms that state permitting 

authorities use to streamline the 

permitting processes vary considerably 

across the nation. Different streamlining 

mechanisms have received various 

labels, including ‘‘combined,’’ 

‘‘merged,’’ or ‘‘unified’’ permits.90 This 

preamble addresses three of the more 

common forms of streamlining. For 

example, some permitting authorities 

streamline NSR and title V permit 

issuance by processing the two permits 

concurrently, subject to overlapping 

public participation opportunities.91

There are two basic variations to this 

theme. First, the permitting authority 

could concurrently issue the NSR 

permit as a standalone document 

containing only NSR permit terms, and 

also issue a title V permit containing all 

existing title V permit terms as well as 

the new NSR permit terms. Or, second, 

the permitting authority could issue one 

permit document that contains both the 

NSR permit and title V permit 

conditions. Some permitting authorities 

employ a third mechanism, whereby the 

NSR permit is first issued with 

enhanced procedural and substantive 

requirements (based on title V 

requirements), and then the NSR permit 

requirements are subsequently 

incorporated into a title V permit 

through an administrative amendment 

process that does not require public 

participation. 

The first approach—featuring separate 

NSR and title V permit documents 

issued at or around the same time—is 

undoubtedly the clearest of the various 

streamlining approaches. There can be 

no mistaking the fact that there are two 

legally distinct permit actions, and it is 

simple to identify which requirements 

are based on the NSR regulations (and 

thus not subject to additional review 

through title V).92

The second approach is also viable, 

provided the underlying authority for 

the NSR aspects of the permit document 

are readily ascertainable from the 

permit(s) and permit record(s). See 40 

CFR 70.6(a)(1)(i). As explained in detail 

in several petition orders,93 even where 

NSR and title V permit authorizations 

are contained within one permit 

document, such a permit action actually 

reflects two legally distinct permit 

actions by the state: (i) a preconstruction 

permit issued under the EPA-approved 

title I SIP regulations governing NSR, 

and (ii) an operating permit under EPAapproved part 70 regulations governing 

title V. Again, NSR permits and title V 

permits are based on differing statutory 

and regulatory schemes, and although 

the two programs feature similarities, 

they also feature important substantive 

and procedural differences. A 

permitting authority’s decision to 

increase administrative efficiency by 

issuing a single permit document to 

satisfy the legal requirements of two 

distinct permitting programs does not 

alter the applicability of requirements 

associated with each respective 

program. For example, substantive 

requirements unique to NSR would not 

be applied to establish or evaluate nonNSR-based title V permit terms. 

Likewise, procedural requirements 

unique to title V (including the EPA’s 

objection authority and public petition 

opportunity, among other things) would 

not be extended to review substantive 

elements of the permit action unique to 

the NSR permitting process. The EPA’s 

objection authority, and the public’s 

ability to petition EPA to object, are 

confined by the CAA to title V permits. 

See 42 U.S.C. 7661d(b). Combining the 

procedures by which a permitting 

authority issues NSR and title V permits 

does not alter this basic principle. 

The EPA appreciates that the 

combined-permit approach has the 

potential to introduce more confusion 

about which types of issues can be 

raised through different public 

participation avenues. In general, 

provided the permitting authority 

complies with existing regulatory 

requirements, the EPA believes this 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
1168 Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 

94Provisions governing the right to appeal final 

title V permits in state court is provided by 42 

U.S.C. 7661a(b)(6) and 40 CFR 70.4(b)(3)(x)–(xii). 

For a discussion of equivalent opportunities to 

challenge title I permits in state court, see section 

IV.C.2. of this preamble. 95This requirement is important in all situations 

where NSR permit terms (and permit terms derived 

from other CAA programs) are incorporated into a 

title V permit. However, it is especially important 

when NSR permit authorizations are issued within 

the same document as a title V permit in the first 

instance. 

96Although the regulatory definition of 

‘‘applicable requirement’’ includes ‘‘requirements 

that have been promulgated or approved by EPA 

through rulemaking at the time of issuance but have 

future-effective compliance dates,’’ 40 CFR 70.2, 

71.2, this only covers future-effective requirements 

that have already been finalized at the time of title 

V permit issuance. 

97The EPA observes that some permitting 

authorities have EPA-approved SIP and/or title V 

program rules that differ from the EPA’s regulations 

in this respect. Specifically, some EPA-approved 

state rules reserve the EPA’s objection authority and 

public petition opportunity until the title V permit 

is administratively amended. This arrangement 

features less potential for confusion and less 

conflict with the EPA’s current (and proposed) 

approach. See AK Steel Order at 10–12. 

98For similar reasons, this process could cause 

difficulties with respect to allocating title V permit 

fees consistent with 40 CFR 70.9. 

99See 57 FR at 32289 (‘‘The primary intent of 

these ‘enhancements’ of the NSR process is to allow 

the permitting authority to consolidate NSR and 

title V permit revision procedures. As stated in the 

May 10, 1991 proposal, it is not to second-guess the 

results of any State NSR determination. For 

example, if a State does provide for EPA’s 45-day 

review in its NSR program, EPA would only be 

reviewing whether the State had conducted a BACT 

analysis, if applicable, and whether that analysis is 

faithfully incorporated in the title V permit. The 

EPA will not use its review period to object to or 

attempt to revise the State’s BACT determination. 

Correspondingly, EPA’s failure to object to the 

substance of the BACT determination will not limit 

any remedies EPA might-otherwise have under the 

Act to address a faulty BACT determination.’’). 

100See, e.g., In the Matter of Alon USA, 

Bakersfield Refinery, Order on Petition No. IX– 

2014–15 at 2–7 (Dec. 21, 2016). 

confusion can be minimized. First, the 

public could comment on all portions of 

a combined permit document during the 

comment period associated with the 

combined permit document. Similarly, 

all portions of a combined permit 

document could be challenged in a state 

court appeal of the final permit action.94

Beyond that, the available mechanisms 

to challenge different permitting 

decisions would diverge. The EPA’s 45- 

day review of the proposed permit, and 

the subsequent public petition 

opportunity, would apply only to title 

V-related aspects of the permit action. 

Likewise, unique oversight tools 

associated with title I permits (e.g., the 

EPA’s authority under CAA section 167 

to order a stop in work) would only 

apply to title I-related aspects of the 

permit action. 

Differentiating between NSR-based 

and title V-based permit terms in a 

combined permit should be 

straightforward, as all title V permits 

‘‘shall specify and reference the origin 

of and authority for each term or 

condition, and identify any difference in 

form as compared to the applicable 

requirement upon which the term or 

condition is based.’’ 40 CFR 

70.6(a)(1)(i).95 Thus, any NSR-related 

terms should be readily distinguishable 

from any non-NSR-related terms (or any 

title V-related terms related to 

monitoring and compliance assurance). 

The substance of appropriately 

designated NSR-based permit terms 

should not be subject to additional 

scrutiny through the unique title V 

oversight tools. 

Although the EPA’s approach 

generally applies the same regardless of 

whether NSR and title V permits are 

sequentially or concurrently issued, 

there are important qualifications to this 

principle. Most notably, NSR permits 

must be finalized by the time the title 

V permit is finalized in order to 

establish the ‘‘applicable requirements’’ 

for title V purposes.96 Moreover, it is 

critically important that concurrently 

issued permits (including combined 

permit documents) are clear as to the 

nature of, and the legal authority 

underlying, the permit actions reflected 

therein. This principle applies to the 

public notice announcing such permit 

action, other portions of the permit 

record available for public review, and 

the terms of the permit(s). See, e.g., 40 

CFR 70.7(h)(2), 70.7(a)(5), 70.6(a)(1)(i). 

Where NSR and title V permit 

documents have been merged to such an 

extent that it is impossible to legally 

distinguish the NSR permit action from 

the title V permit action, it may be 

necessary to use the title V process to 

review whether the NSR-related 

requirements of the SIP are included in 

the title V permit. The next subsection 

elaborates on these and other situations 

in which NSR issues would be subject 

to review through title V oversight tools. 

A third process used by some 

permitting authorities is often described 

as ‘‘enhanced NSR.’’ The EPA’s existing 

regulations allow requirements from an 

NSR permit issued with certain 

enhancements to be incorporated into a 

title V permit via administrative 

amendment procedures (instead of a 

significant modification or minor 

modification procedures, which would 

otherwise be required). To qualify for 

this type of streamlined processing, the 

NSR permit would need to be issued 

following ‘‘procedural requirements 

substantially equivalent to the 

requirements of [40 CFR] 70.7 and 70.8 

. . . that would be applicable to the 

change if it were subject to review as a 

permit modification, and compliance 

requirements substantially equivalent to 

those contained in [40 CFR] 70.6.’’ 40 

CFR 70.7(d)(1)(v); see 71.7(d)(1)(v). 

This third pathway has the potential 

to create confusion—and to conflict 

with the EPA’s current (and proposed) 

approach—because the language quoted 

earlier may be read to mean that the 

EPA’s objection authority and the public 

petition opportunity in 70.8(d) apply to 

the issuance of the NSR permit.97 This 

result is problematic for multiple 

reasons. For one, the CAA only provides 

the EPA with authority to object to the 

issuance of title V permits, not NSR 

permits. Similarly, the statutory 

obligation for the EPA Administrator to 

respond to petitions under CAA section 

505(b)(2) only applies to petitions on 

title V permits. 42 U.S.C. 7661d(b)(2). 

Moreover, even if the EPA were to 

object to the issuance of an NSR permit, 

the EPA generally lacks authority to 

enforce such objection, as the EPA 

cannot issue the NSR permit if the state 

does not resolve the EPA’s objection. 

Again, the authority to do so only 

relates to title V permits. 42 U.S.C. 

7661d(c). Further, the existence of this 

process creates more confusion about 

the scope of issues properly subject to 

review during the NSR permitting 

action than the other two streamlined 

pathways. This is because it may be 

more difficult to distinguish title I and 

title V components within a single 

‘‘enhanced NSR’’ permit.98 Based on the 

preamble of the EPA’s 1992 title V rules, 

it appears that the EPA’s original 

intention when promulgating this 

mechanism was to generally confine 

EPA’s review to the title V-based 

components of the enhanced NSR 

permit (i.e., the compliance 

requirements in 40 CFR 70.6).99

However, contradictory positions taken 

by EPA in subsequent years has created 

confusion.100

Although this third pathway reflected 

the EPA’s attempt to allow for the 

streamlining of NSR and title V permit 

procedures, it raises more issues than it 

solves, and ultimately it is not 

necessary. The other two streamlining 

mechanisms—concurrent issuance of 

NSR and title V permits either in 

separate documents or in a single 

combined permit document—cause 

fewer problems and provide more 

advantages. Specifically, concurrent 

issuance mechanisms are compatible 

with the EPA’s current (and proposed) 

approach to the title I/title V interface, 

while the ‘‘enhanced NSR’’ mechanism 

appears to erroneously suggest that the 

EPA has authority to directly object to 

title I permits. Additionally, concurrent 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 1169 

101As explained further in section IV.C.1. of this 

preamble, this view relates only to how an NSR 

permit is treated during the title V permitting 

process. It does not in any way affect the 

independent enforceability of the NSR permit itself. 

102See Suncor East Order at 45–48, 54–55 

(reviewing NSR issues where the state ‘‘has not 

issued any title I NSR permits that would establish 

the NSR-related ‘applicable requirements’ of the 

SIP’’); SRP Agua Fria Order at 11 n.18 (reviewing 

NSR applicability issues where no NSR permit had 

been issued); SRP Desert Basin Order at 12 n.20 

(same); BP Whiting II Order at 13 n.24 (reviewing 

an NSR-related emission limit that was established 

in a title V, as opposed to an NSR, permit action). 

Additionally, within a portion of the EPA’s 2017 

PacifiCorp-Hunter I Order that was not challenged 

and not subject to the Tenth Circuit’s partial 

vacatur, the EPA addressed the merits of a petition 

claim involving allegedly unpermitted 

modifications. See PacifiCorp-Hunter I Order at 26– 

31. 

103For example, within a portion of the EPA’s 

2017 PacifiCorp-Hunter I Order that was not 

challenged and not subject to the Tenth Circuit’s 

partial vacatur, the EPA addressed the merits of a 

petition claim involving a NSR permit that was 

allegedly not issued under EPA-approved SIP rules. 

See PacifiCorp-Hunter I Order at 24. Determining 

the authority underlying a preconstruction permit 

could also be relevant in other title V contexts. For 

example, states may issue preconstruction permits 

under state-only-enforceable laws (as opposed to 

federally-approved and federally-enforceable state 

laws, or federal laws). Such state-only permit 

requirements may be included in title V permits, 

but they must be labeled as ‘‘state-only’’ or ‘‘not 

federally enforceable’’ within a title V permit. 40 

CFR 70.6(b)(2). Questions about the authority 

underlying such permits would therefore be 

relevant to determining whether 40 CFR 70.6(b)(2) 

was satisfied. See, e.g., In the Matter of Phillips 66 

Co., Borger Refinery, Order on Petition No. VI– 

2017–16 at 8–10 (Sept. 22, 2021). 

104See Suncor East Order at 48 (reviewing NSRrelated issues where ‘‘the current title V renewal 

proceeding is the first permit action in which these 

NSR issues have been subject either to public notice 

and comment or the opportunity for judicial 

review,’’ among other reasons); Coyote Station 

Order at 12 (reviewing NSR-related issues ‘‘where 

no public notice was provided of the underlying 

NSR permit action,’’ among other reasons). 

issuance mechanisms allow permitting 

authorities to more clearly delineate the 

title I and title V permit actions, 

providing more clarity to the public 

about which issues may be challenged 

through different review pathways. 

Finally, concurrent issuance 

mechanisms are more efficient than the 

enhanced NSR mechanism, as 

permitting authorities need not take an 

additional, separate title V 

administrative amendment action after 

issuing an NSR permit. 

For the foregoing reasons, the EPA 

proposes to remove from its regulations 

the provisions relating to enhanced NSR 

permitting and related title V 

administrative amendments. The EPA 

solicits comment on whether state 

permitting authorities should remove 

equivalent regulations from their EPAapproved program rules, although the 

EPA does not anticipate such actions 

will be necessary. Instead, it should be 

sufficient for permitting authorities to 

simply stop using this mechanism in a 

manner that purports to provide an EPA 

objection authority and public petition 

opportunity directly on an NSR permit. 

In any case, the EPA generally will not 

use its objection authority to address the 

substance of NSR permitting decisions 

made through this process. 

The EPA specifically requests 

comments regarding additional 

mechanisms that permitting authorities 

use to streamline the issuance of NSR 

and title V permits. The EPA requests 

comments about how these differing 

approaches might impact, or be 

impacted by, the EPA’s current (and 

proposed) approach. 

5. Situations in Which the Title V 

Process Will Be Used To Review NSR 

Issues 

There are certain situations in which 

the title V permitting process is the 

appropriate venue for addressing NSR 

permitting issues. This conclusion is 

supported by the same statutory and 

regulatory interpretations underlying 

situations in which the title V 

permitting process is not appropriate for 

addressing NSR permitting issues. In 

sum, as explained further in the 

following subsections, where applicable 

requirements are conclusively 

established under another CAA 

program, they are not substantively 

addressed through title V. Where 

applicable requirements are not 

conclusively established under another 

CAA program, they are substantively 

addressed through title V. Where the 

requirements of another CAA program 

and the requirements of title V feature 

substantive overlap, such areas of 

overlap are addressed through title V. 

a. No Permit Issued Through a Title I 

Permitting Process With Public Notice 

and the Opportunity for Comment and 

Judicial Review 

Under the EPA’s current (and 

proposed) framework, title I permits 

issued with public notice and the 

opportunity for comment and judicial 

review conclusively establish NSRrelated ‘‘applicable requirements’’ of the 

SIP (or FIP) for title V purposes. But if 

NSR permitting decisions are not 

developed through a formal process that 

involves public notice and the 

opportunity for comment and judicial 

review, the public and the EPA have no 

opportunity to provide input on, or 

appeal, whether the relevant NSR 

requirements were properly established. 

In this circumstance, it would be 

inappropriate to simply incorporate any 

such NSR requirements into a title V 

permit without further review. In other 

words, where NSR-related requirements 

are not established through a public title 

I permitting process with an 

opportunity for judicial review, the 

applicable requirements of the SIP (or 

FIP) relevant to the construction project 

at issue are not yet conclusively defined 

for title V purposes.101 In such a 

situation, the title V process can and 

should be used to assure compliance 

with the relevant underlying NSRrelated applicable requirements of the 

SIP (or FIP). This approach is similar to 

how the title V process is used to define 

the specific requirements necessary to 

assure compliance with general 

requirements of other CAA programs 

that are not definitively established 

through a separate rulemaking or 

permitting process, as discussed in 

section III.F. of this preamble. 

The title V process can be used to 

review NSR issues in various situations, 

some of which the EPA has confronted 

in recent years. For example, the EPA 

has reviewed, and will continue to 

review, substantive NSR issues where 

no title I permit is issued to authorize 

the projects at issue.102 The title V 

process can be used to ensure that any 

new or modified sources that do not 

obtain an NSR permit (sometimes called 

‘‘unpermitted projects’’) comply with all 

relevant NSR-related requirements of 

the SIP (or FIP). 

If a preconstruction permit is issued, 

but not issued under title I—that is, not 

issued under NSR permitting rules that 

have been approved by EPA and 

incorporated into the SIP or FIP—then 

such a permit would not establish the 

NSR requirements of the SIP (or FIP) 

that apply to an individual source. 

Issuance of a non-title I permit does not 

reflect a determination as to which of 

the NSR requirements in a SIP (or FIP) 

apply to construction and thus does not 

fulfill any NSR requirements in the SIP 

(or FIP). In this situation, it would thus 

be appropriate to use the title V 

permitting process to assess whether 

there are NSR requirements in the SIP 

(or FIP) that apply to a construction 

project covered by a non-title I permit. 

Moreover, it would be appropriate to 

use the title V permitting process to 

explore whether a preconstruction 

permit was issued under a title I-based 

authority, as opposed to a non-title I 

authority.103

The EPA has also reviewed, and will 

continue to review, substantive NSR 

issues where the underlying NSR permit 

was not issued following public notice 

and the opportunity for comment and 

judicial review.104 As previously 

explained, this is because an NSR 

permit that is not issued following such 

procedures does not provide the title V 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
1170 Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 

105To the extent the public raises procedural 

issues related to NSR permit issuance in a title V 

petition, petitioners have the burden to demonstrate 

that the correct process was not followed, similar 

to all other title V petition issues. 42 U.S.C. 

7661d(b)(2); see 40 CFR 70.12(a)(2). 

106As explained in section IV.B.3. of this 

preamble, procedural requirements associated with 

NSR permit issuance are neither ‘‘applicable 

requirements’’ for title V purposes (because they do 

not apply to emission units at a part 70 source), nor 

are they part 70 requirements (because they are not 

related to the issuance of a specific title V permit). 

107South Louisiana Methanol Order at 10–11; see 

Gulf Coast Growth Ventures Order at 17–19; 

ExxonMobil Baytown Chemical Order at 20–21; 

Yuhuang II Order at 8; see also, e.g., Big River Steel 

Order at 17, 17 n.30, 19 n.32, 20; PacifiCorp-Hunter 

I Order at 16, 17, 18, 18 n.33, 19. 

108Suncor East Order at 53–54. 

109Coyote Station Order at 12–13. 

110ExxonMobil Baytown Chemical Order at 13– 

14. 

permit writer or public with sufficient 

assurance that the preconstruction 

permitting process has conclusively 

established the applicable NSR 

requirements of the SIP (or FIP) for that 

source for title V purposes. Thus, 

questions about the procedures used to 

issue NSR permits may be indirectly 

relevant to the EPA’s review of title V 

permits or public petitions on title V 

petitions.105 Specifically, such 

questions may inform whether it is 

appropriate to use the title V process to 

review the substance of that NSR permit 

in order to ensure that the title V permit 

reflects, and assures compliance with, 

all relevant NSR applicable 

requirements of the SIP (or FIP). It is 

important to recognize that procedural 

problems associated with the issuance 

of an NSR permit would simply present 

a basis for EPA to review the underlying 

NSR issues; such procedural problems 

would not present an independent basis 

for the EPA’s objection to the title V 

permit.106

It is also important to recognize that, 

in proposing to add text to parts 70 and 

71 referencing ‘‘public notice and the 

opportunity for public comment and 

judicial review’’ of NSR permits, this 

proposed rule would simply establish a 

precondition relevant to whether 

underlying NSR permits are insulated 

from, or subject to, additional review 

through title V. These proposed 

regulatory revisions will not impose any 

binding procedural requirements 

governing a permitting authority’s 

issuance of NSR permits. Rather, such 

procedural requirements are found in 

the relevant statutory and regulatory 

authorities governing NSR, and the SIP 

regulations that implement them. See, 

e.g., 42 U.S.C. 7475(a)(2); 40 CFR 

51.161, 51.165(i), 51.166(q). Although 

the proposed additions to parts 70 and 

71 use language similar to existing 

requirements in the NSR rules, this 

proposed rule does not seek to define 

those concepts in the context of NSR. 

Rather, outside of this title V proposed 

rule, the EPA is reviewing opportunities 

for public participation in minor NSR 

permitting. 

For title V purposes, provided an NSR 

permit is issued following public notice, 

the opportunity to comment, and the 

opportunity for judicial review, the EPA 

will consider that NSR permit as 

establishing the relevant applicable 

requirements of the SIP with respect to 

the activities being permitted. 

Accordingly, the title V permitting 

process will not be used to second-guess 

the substance of those requirements. By 

codifying such criteria through the 

current proposed rule, the EPA’s intent 

is not to create new requirements on 

NSR permitting, but rather to create an 

incentive for permitting authorities to 

offer robust opportunities for public 

involvement on NSR permit actions. In 

this manner, this proposed rule will 

reinforce existing requirements 

governing public participation on NSR 

permits and will complement the EPA’s 

ongoing efforts to improve public 

participation in minor NSR permitting 

decisions. 

b. Issues Involving Overlapping Title V 

and NSR Requirements 

The EPA has reviewed (and will 

continue to review) issues involving an 

overlap of title V and NSR requirements. 

The most notable example involves 

using title V to evaluate the sufficiency 

of monitoring and related compliance 

assurance requirements associated with 

more substantive NSR permit 

requirements. As the EPA explained in 

one title V petition order: 

Unlike the BACT determination claims 

discussed above, claims concerning whether 

a title V permit contains enforceable permit 

terms, supported by monitoring sufficient to 

assure compliance with an applicable 

requirement or permit term (such as an 

emission limit established in a PSD permit), 

are properly reviewed during title V 

permitting. The statutory obligations to 

ensure that each title V permit contains 

‘‘enforceable emission limitations and 

standards’’ supported by ‘‘monitoring . . . 

requirements to assure compliance with the 

permit terms and conditions,’’ 42 U.S.C. 

7661c(a), (c), apply independently from and 

in addition to the underlying regulations and 

permit actions that give rise to the emission 

limits and standards that are included in a 

title V permit. Therefore, the EPA will 

address the merits of those portions of the 

Petition that challenge the enforceability of 

emission limits and the sufficiency of 

monitoring conditions in the Permit.107

The EPA has also considered (and 

will continue to consider) other issues 

involving an explicit overlap between 

NSR and title V. Examples addressed to 

date include situations where a state’s 

SIP rules and part 70 program rules 

explicitly require consideration of 

NAAQS impacts in a title V permit 

proceeding; 108 where both SIP and part 

70 rules require an evaluation of the 

scope of the ‘‘stationary source’’ or 

‘‘major source’’ subject to permitting 

requirements; 109 and where SIP rules 

explicitly require consideration of 

adjustments to a PAL (a type of NSR 

permitting mechanism) in a title V 

renewal permit action.110

Notably, the EPA’s consideration of 

NSR-related issues within these past 

actions did not involve reevaluating or 

second-guessing the content of 

applicable requirements established in 

NSR permitting actions. Instead, the 

EPA’s consideration of those issues was 

based either on unique requirements of 

title V (e.g., to add supplemental 

monitoring to the requirements in 

underlying applicable requirements) or 

on directives within the SIP itself, 

which effectively provided a mandate to 

further define applicable requirements 

of the SIP through the title V process 

(instead of the NSR process). Thus, the 

limited situations in which the EPA 

does use (and proposes to continue 

using) the title V process to address 

NSR-related issues is wholly consistent 

with the EPA’s position that, in general, 

the title V process should not be used 

to second-guess or alter substantive 

applicable requirements that are 

established through a title I permitting 

process with public notice and the 

opportunity for comment and judicial 

review. 

6. Summary of Proposed Regulatory 

Changes 

In order to more clearly express the 

EPA’s current approach to the interface 

between NSR permits and title V 

permits, the EPA proposes the following 

amendments to the EPA’s regulations. 

The EPA proposes to update 

paragraphs (1) and (2) of the definition 

of ‘‘applicable requirement’’ in 40 CFR 

70.2 and 71.2. Paragraph (1) addresses 

SIP (and FIP) requirements more 

generally. This rule would add text to 

paragraph (1) to clarify that, for 

purposes of title V, where an NSR 

permit is issued under an EPA-approved 

or EPA-promulgated title I program (i.e., 

SIP or FIP), with public notice and the 

opportunity for comment and judicial 

review, then the terms and conditions of 

that preconstruction permit define the 

NSR-related applicable requirements of 

the SIP or FIP that apply to the activities 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 1171 

111As explained previously, this approach is 

analogous to how the EPA treats potential defects 

in other types of applicable requirements, including 

(non-NSR) requirements of the SIP. For instance, 

even when the EPA has made a determination that 

a provision of the SIP is not in compliance with the 

Act, the EPA will not object to a permit that 

includes that provision until there is final action to 

remove it from the SIP. See, e.g., Piedmont Green 

Power Order at 28–29. EPA’s lack of objection to the 

inclusion of that requirement in the title V permit 

does not indicate that the EPA agrees that it 

complies with the Act or applicable regulations; it 

merely indicates that a title V permit is not the 

appropriate venue to correct any such flaws in the 

SIP. 

112 If anything, this action has the potential to 

increase the availability of certain enforcement 

opportunities, as discussed in Section IV.C.4. of this 

preamble. 

113Title I of the CAA specifically contemplates 

that the ‘‘interested persons’’ who may comment on 

state-issued PSD permits include ‘‘representatives 

of the Administrator.’’ 42 U.S.C. 7475(a)(2). 

114 ‘‘In order to challenge the legality of a permit 

which a State has actually issued . . . a citizen 

must seek administrative remedies under the State 

permit consideration process, or judicial review of 

the permit in State court.’’ Staff of the 

Subcommittee on Environmental Pollution of the 

Senate Committee on Environment and Public 

Works, 95th Congress, 1st Session, A Section-bySection Analysis of S. 252 and S. 253, Clean Air Act 

Amendments 36 (1977), reprinted in 5 Legislative 

History of the Clean Air Act Amendments of 1977 

3892 (1977). Note that the U.S. Supreme Court has 

also acknowledged the primacy of state courts to 

adjudicate disputes over NSR permit terms. See 

Alaska Dep’t of Env’t Conservation v. EPA, 540 U.S. 

461, 490 n.14 (2004); see also id. at 491–94 

(addressing the relationship between state court 

review of NSR permits and federal oversight tools 

related to NSR permits). The EPA has expressed 

similar views when approving individual NSR SIPs. 

See, e,g., 77 FR 65305, 65306 (Oct. 26, 2012) (The 

EPA ‘‘interpret[s] the CAA to require an 

opportunity for judicial review of a decision to 

grant or deny a PSD permit, whether issued by EPA 

or by a State under a SIP-approved or delegated 

PSD program.’’). 

authorized by such a preconstruction 

permit. 

This rule would also add text to 

paragraph (2) to clarify that, for 

purposes of title V, the relevant terms 

and conditions of all types of NSR 

permits issued under a SIP or FIP— 

including minor NSR permits—are 

applicable requirements that must be 

included in a title V permit, regardless 

of whether the procedures referenced in 

paragraph (1) are followed. 

The EPA also proposes to remove the 

provisions in 40 CFR 70.7(d)(1)(v), 

70.7(d)(4), 71.7(d)(1)(v), and 71.7(d)(4) 

that relate to the ‘‘enhanced NSR’’ and 

title V administrative amendment 

procedures, as discussed in section 

IV.B.4. of this preamble. 

The EPA does not believe any 

additional changes to the regulations are 

necessary. However, the EPA requests 

comments on other changes to the 

regulatory text that would be necessary 

to fully effectuate the EPA’s proposed 

approach. 

C. Interaction With NSR Permitting, 

Oversight, and Enforcement 

Although this rulemaking addresses 

the intersection of the NSR and title V 

permitting programs, the EPA’s 

proposed approach only directly affects 

implementation of the title V permitting 

program. More specifically, this 

rulemaking only affects the extent to 

which the title V permitting process will 

be used to assess whether issuance of an 

NSR permit complies with the NSRrelated requirements of a SIP (or FIP). 

Thus, as explained in the following 

paragraphs, the EPA’s proposed 

approach for limiting review of NSR 

permitting decisions through the title V 

process does not affect the independent 

validity or enforceability of NSR permit 

terms or the SIP (or FIP) requirements 

upon which they are based. 

1. No Impact on the Independent 

Validity or Enforceability of NSR 

Permits 

As discussed throughout this 

preamble, where an NSR permit is 

issued following public notice and the 

opportunity for comment and judicial 

review, the terms and conditions of 

such a permit establish the NSR-related 

applicable requirements of the SIP (or 

FIP) for title V purposes. Although these 

permit terms should generally be 

incorporated into the title V permit 

without further substantive review, an 

EPA decision not to conduct that review 

in the title V process does not mean that 

the EPA agrees that the state action 

complies with NSR requirements. It 

merely indicates that a title V permit is 

not the appropriate venue to correct any 

deficiencies in the NSR permit. Thus, 

even if EPA might find an error upon 

reviewing a preconstruction permitting 

decision made by the permitting 

authority, for purposes of the title V 

operating permit, the terms of the NSR 

permit should be incorporated into the 

title V operating permit until such time 

that there is a final action to revise, 

reopen, suspend, revoke, reissue, 

terminate, or invalidate the 

preconstruction permit, such as a court 

order in a state court appeal or through 

an enforcement action.111

By the same token, if an NSR permit 

is not issued through a process that 

included public notice and the 

opportunity for comment and judicial 

review, this proposed rule would not 

address whether such a permit is valid 

or enforceable in its own right. Rather, 

this proposed rule would only affect 

how such a permit is treated through 

title V. The terms of such a permit 

would still need to be included in the 

title V permit under item (2) of the 

EPA’s regulatory definition of 

‘‘applicable requirement.’’ However, any 

such permit terms (and underlying 

permit decisions) would not be 

sufficient to conclusively define the 

NSR-related ‘‘applicable requirements’’ 

of the SIP under item (1) of the EPA’s 

regulatory definition. Therefore, 

questions about the whether the NSR 

permit satisfied the requirements of the 

SIP would be subject to review through 

the title V process. But that is the only 

consequence insofar as this proposed 

rule is concerned. Any relevant 

requirements of the SIP would remain 

fully enforceable, and the independent 

enforceability of any NSR permit issued 

without an opportunity for comment 

and judicial review would be 

determined on the basis of those 

requirements. 

2. Title I Oversight and Enforcement 

Authorities 

Under the EPA’s proposed approach 

for considering NSR permitting 

decisions through the title V permitting 

process, there are meaningful 

opportunities for the EPA and the 

public to review NSR preconstruction 

permitting decisions under title I of the 

CAA.112 Congress provided various 

mechanisms for EPA and public 

oversight of NSR permitting decisions. 

Specifically, Congress gave the EPA 

programmatic oversight authority under 

title I to disapprove state NSR 

permitting programs and call for 

revisions to those programs if the state’s 

program does not satisfy federal 

statutory and regulatory authorities 

governing NSR. 42 U.S.C. 7410(a)(2)(C), 

7410(k)(5). Further, if a state fails to 

properly implement its NSR program, 

the EPA can take additional actions. 42 

U.S.C 7413(a)(2), (a)(5). 

In terms of reviewing individual title 

I permits, each SIP must provide for 

public notice and an opportunity for 

comment on proposed NSR permits in 

its preconstruction permit program. 42 

U.S.C. 7475(a)(2); 40 CFR 51.161, 

51.165(i), 51.166(q). The EPA may 

provide feedback on state-issued NSR 

permits through this process.113

Inherent in this title I permitting 

scheme—and reflected in the 

congressional record for the 1977 CAA 

Amendments—is the understanding that 

the adequacy of state NSR permitting 

decisions would be subject to review in 

state administrative and judicial 

forums.114

Congress also provided EPA and the 

public with various enforcement 

mechanisms to address non-compliance 

with title I permitting requirements on 

a facility-by-facility basis. The EPA 

possesses the authority to issue 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
1172 Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 

115 ‘‘A part 70 permit that does not expressly state 

that a permit shield exists shall be presumed not 

to provide such a shield.’’ 40 CFR 70.6(f)(2). 

116Specifically, if the EPA does not object to a 

title V permit on its own volition, and subsequently 

denies a petition requesting that the EPA object to 

the permit, such denial may be appealed to the 

relevant U.S. Court of Appeals. 42 U.S.C. 

7661d(b)(2), 7607(b)(1). 

117See Nucor Steel-Arkansas v. Big River Steel, 

LLC, 825 F.3d 444 (8th Cir. 2016); EPA v. EME 

Homer City Generation, LP, 727 F.3d 274 (3rd Cir. 

2013); Sierra Club v. Otter Tail Power Co., 615 F.3d 

1008 (8th Cir. 2010); Romoland School Dist. v. 

Inland Empire Energy Center, LLC, 548 F.3d 738 

(9th Cir. 2008). 

118See Nucor, 825 F.3d at 452–53; Romoland, 548 

F.3d at 754–56. 

injunctive orders to halt construction. 

42 U.S.C. 7413(a)(5)(A), 7477. The EPA 

may also pursue various types of civil 

or criminal enforcement actions 

pursuant to sections 113 and 167 of the 

Act. 42 U.S.C. 7413, 7477. Under title III 

of the CAA, Congress also provided 

authority for citizens to bring 

enforcement actions seeking civil 

penalties and injunctive relief against a 

source that has violated certain NSR 

requirements. Id. 7604(a)(1), (a)(3). 

These enforcement-based tools can be 

used to address situations where a 

source failed to obtain a required major 

NSR permit (even if it obtained a minor 

source permit). See e.g., U.S. v. S. Ind. 

Gas & Elec. Co., No. IP99–1692–CM/F, 

2002 WL 1760699, at *3–5 (S.D. Ind. 

July 26, 2002); United States v. Ford 

Motor Co., 736 F. Supp. 1539, 1550 

(W.D. Mo. 1990). They can also be used 

to ensure that decisions made in 

establishing the terms of a major NSR 

permit, such as BACT limits, were made 

on reasonable grounds properly 

supported by the record. See, e.g., 

Alaska Dep’t of Env’t Conservation v. 

EPA, 540 U.S. 461 (2004) (affirming 

application of section 167 of the CAA in 

this context). 

3. Title V Permit Shields 

The incorporation of the terms and 

conditions of an NSR permit into a title 

V permit does not, by itself, diminish 

the ability of the EPA or citizens to 

enforce preconstruction permitting 

requirements. However, enforcement 

could be affected by a title V ‘‘permit 

shield’’ imposed under CAA section 

504(f) and 40 CFR 70.6(f) and 71.6(f). A 

permit shield, if part of an approved 

title V program and expressly included 

in a title V permit,115 may provide a 

sufficient defense from enforcement 

actions under certain circumstances. 

This proposed rule does not change the 

agency’s interpretation or enlarge the 

scope of a permit shield. 

There are two types of permit shields 

under title V. The first, default permit 

shield states that compliance with the 

title V permit ‘‘shall be deemed 

compliance with’’ title V. 42 U.S.C. 

7661c(f). Where a facility is entitled 

only to this default permit shield, 

requirements of the CAA outside of title 

V (including NSR requirements) are still 

independently enforceable against the 

facility. 

A permitting authority may go further 

to provide a facility with a second, more 

expansive type of permit shield. This 

more expansive permit shield has two 

prongs. Under the first prong of an 

expanded permit shield, a permitting 

authority can provide that compliance 

with the title V permit ‘‘shall be deemed 

compliance with other [non-title V] 

applicable provisions,’’ but only if ‘‘the 

permit includes the applicable 

requirements of such provisions.’’ 42 

U.S.C. 7661c(f)(1); see 40 CFR 

70.6(f)(1)(i). Where a title V permit 

includes this type of permit shield and 

also incorporates the terms of an NSR 

permit, the permit shield would provide 

that compliance with the title V permit 

would be deemed compliance with the 

specific applicable requirements 

reflected in the NSR permit. However, 

compliance with such a title V permit 

would not be deemed compliance with 

any other requirements that are not 

contained in the NSR permit. For 

example, if a source obtained a minor 

NSR permit for a project and the title V 

permit included this type of permit 

shield, compliance with the title V 

permit would not preclude an 

enforcement action alleging a violation 

of title I of the Act for failure to obtain 

a major NSR permit. 

Under the second prong of an 

expanded permit shield, a permitting 

authority can only provide a shield from 

requirements it has expressly 

determined to be non-applicable. The 

statute and regulations say this shield is 

available if the state, ‘‘in acting on the 

[title V] permit application[,] makes a 

determination relating to the permittee 

that such other provisions (which shall 

be referred to in such determination) are 

not applicable and the permit includes 

the determination or a concise summary 

thereof.’’ 42 U.S.C. 7661c(f)(2); see 40 

CFR 70.6(f)(1)(ii). In other words, this 

type of permit shield requires that the 

permitting authority make a written 

non-applicability determination during 

the title V permitting process and 

memorialize this determination within 

the title V permit record. 

Further, if a permitting authority 

chooses to include a title V permit 

shield that expressly covers NSR 

requirements that either are, or are not, 

applicable to a particular construction 

project, that decision would be based on 

title V authority and part of the title V 

permit action. As such, the NSR 

requirements covered by the title V 

permit shield would be subject to 

review and oversight through title V, 

including being subject to the EPA’s 

objection authority and the public 

petition opportunity. The availability of 

these title V oversight tools is important 

because an express title V permit shield 

effectively precludes enforcement 

through the federal court system under 

CAA sections 113 or 304. By including 

an express permit shield through title V, 

that enforcement-based oversight tool is 

replaced by oversight through the title V 

permitting process, which provides an 

alternative pathway to the federal 

courts.116

4. Other Enforcement Considerations 

As one federal Court of Appeals 

explained: ‘‘Title V itself reserves the 

EPA’s ability to bring an enforcement 

action for violations of the CAA unless 

an express ‘shield’ on the face of the 

permit bars that action. This provision 

would hardly be necessary if the EPA 

was supposed to resolve all alleged 

violations of the CAA in the permitting 

process.’’ Citizens Against Ruining the 

Environment v. EPA, 535 F. 3d 670, 678 

(7th Cir. 2008) (quoting 42 U.S.C. 

7661c(f)). However, other circuit courts 

have barred enforcement actions that 

they viewed as impermissible collateral 

attacks on permits.117 In these cases, the 

courts’ decisions were premised upon 

the notion that the EPA would assess 

the substantive validity or applicability 

of certain CAA requirements (including 

NSR requirements 118) through the title 

V petition process, and that the EPA 

Administrator’s decision in response to 

a title V petition could be challenged in 

federal court. Based on that premise, 

these courts decided that the 

jurisdictional bar in CAA section 

307(b)(2) against ‘‘[a]ctions of the 

Administrator with respect to which 

review could have been obtained’’ 

applies to bar enforcement of these the 

substantive requirements underlying 

those enforcement actions. 42 U.S.C. 

7607(b)(2). These decisions, however, 

did not identify statutory or regulatory 

text to support this premise; they may 

have been implicitly based on EPA 

practice from 1997 to 2017. 

In light of the EPA’s position since 

2017 with respect to certain NSR 

permits, the premise underlying those 

cases no longer applies. Based on the 

interpretation of the title V provisions 

discussed in this proposal, the EPA’s 

view is that the title V process does not 

operate to bar enforcement of the NSR 

permitting requirements on the basis of 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 1173 

119See Sierra Club v. Entergy Arkansas LLC, 503 

F.Supp.3d 821, 847–48 (2020) (‘‘In addition, 

plaintiffs maintain that the EPA’s interpretation of 

statutory language such that it will no longer 

oversee state Title I permit decisions through Title 

V petitions provides an additional basis upon 

which the Court should decline to find and impose 

an exhaustion requirement. The Court has 

examined the allegations in the amended complaint 

and the briefing with respect to the specific 

provisions of the CAA under which plaintiffs bring 

claims and the alleged requirements for bringing 

those claims in federal court. The Court is satisfied 

at this stage of the litigation that the Court has 

subject matter jurisdiction over plaintiffs’ claims in 

their amended complaint.’’). 

120For example, states within the Tenth Circuit’s 

jurisdiction may currently have language that 

matches the language in the EPA’s regulation that 

the court considered in Sierra Club v. EPA, 964 

F.3d 882 (10th Cir. 2020). Once the EPA revises its 

own regulations, this should provide those states 

the certainty that the EPA will not use the title V 

process to address NSR issues, even within this 

jurisdiction. However, such states may wish to 

consider the extent to which the Tenth Circuit’s 

reading of the same language affects their state law 

obligations with respect to the title V and NSR 

permitting interface. 

section 307(b)(2). This proposed rule 

will codify the EPA’s current view that 

certain NSR issues are not subject to 

review through title V processes, 

including the petition process. Because 

the EPA Administrator will not consider 

or take any action concerning the 

substantive validity of these NSR 

permitting decisions through title V, 

there is no opportunity for federal 

judicial review of these issues through 

title V, and therefore the statutory bar in 

CAA section 307(b)(2) simply does not 

apply. Therefore, enforcement of certain 

NSR-related requirements in the district 

court should no longer be viewed as a 

collateral attack on an Administrator’s 

action (or lack thereof) through title V 

for which review could have been 

obtained in an appellate court. At least 

one court that considered this issue 

since the EPA revised its interpretation 

in 2017 has declined to impose such a 

jurisdictional bar.119

D. Impacts of Proposed Action 

This proposed rule is primarily 

procedural in nature and does not 

impose any specific or direct 

requirements on any potentially affected 

stakeholders. Additionally, given that 

this proposed rule seeks to codify the 

EPA’s existing policies and 

interpretations that have been in place 

since 2017, most of these effects will not 

arise from this regulatory action itself. 

The following paragraphs summarize 

the anticipated indirect impacts of 

EPA’s current and proposed approach. 

1. Impacts on the EPA 

This action most directly affects the 

EPA itself, and specifically the EPA’s 

actions in overseeing both the title V 

and NSR permitting programs. This 

action will codify the EPA’s current 

framework regarding the scope of issues 

that EPA will—and will not—review 

through unique title V permitting 

mechanisms, including the EPA’s 45- 

day review of title V permits and the 

EPA’s responses to citizen petitions 

challenging title V permits. Reflecting 

this existing approach more directly in 

regulations will provide consistency 

across the country and ensure that the 

EPA’s permitting oversight resources are 

most effectively focused on the issues 

where such oversight can achieve the 

greatest results. For example, by not 

reviewing complex NSR issues through 

its title V oversight tools, the EPA can 

prioritize using those tools to ensure 

that title V permits assure compliance 

with substantive requirements 

established in other CAA programs, 

such as by requiring additional 

monitoring, recordkeeping, and 

reporting when necessary. This action 

further emphasizes the EPA’s 

commitment to using its existing title I 

oversight tools to address title I 

permitting issues. As discussed in 

section IV.E.4.b. of this preamble, those 

title I oversight tools are more effective 

means of addressing title I issues than 

the EPA’s title V oversight tools. 

2. Impacts on State, Local, and Tribal 

Permitting Authorities 

This rule may also impact state, local, 

and Tribal permitting authorities that 

issue title V and/or NSR permits. From 

the EPA’s experience, it appears that 

many, if not most, permitting authorities 

already implement their title V and NSR 

programs in a manner consistent with 

the EPA’s current (and proposed) 

approach. That is, these permitting 

authorities do not use the title V 

permitting process to revisit NSR 

permitting decisions that they 

themselves previously made. For 

permitting authorities that have not 

been implementing the EPA’s current 

approach, this action is expected to 

decrease administrative burdens. 

Permitting authorities should generally 

only have to address NSR-related 

permitting issues once: during the NSR 

permitting process. 

The EPA does not expect it will be 

necessary for most permitting 

authorities to revise their regulations or 

to submit revised part 70 regulations or 

SIP regulations for EPA approval as a 

result of this proposed rule. The EPA 

views its existing part 70 and part 71 

regulations—and, by extension, the 

equivalent regulations in EPA-approved 

state rules—to be consistent with the 

EPA’s existing (and proposed) approach. 

This proposed rule is intended to make 

EPA’s regulations clearer. Nonetheless, 

permitting authorities that desire the 

greater certainty associated with the rule 

revisions proposed in this action are 

welcome to make changes to their 

regulations similar to those the EPA is 

proposing.120 The EPA specifically 

solicits comments from permitting 

authorities about their ability (or 

inability) to implement the EPA’s 

proposed approach without changes to 

their EPA-approved part 70 program 

rules. 

The current proposed rule does not 

itself mandate any requirements 

governing the issuance of NSR permits. 

However, permitting authorities may 

choose to change some of their NSR 

permitting practices in order to realize 

benefits in their permitting programs. 

For example, in order to ensure that the 

EPA will not use its title V oversight 

tools to revisit a permitting authority’s 

NSR permitting decisions, permitting 

authorities may increase the amount of 

public participation opportunities 

offered on minor NSR permit actions. 

The EPA strongly encourages permitting 

authorities to provide for robust and 

meaningful public participation 

opportunities on NSR permitting 

actions, consistent with existing 

statutory and regulatory requirements 

and EPA guidance. 

Permitting authorities that currently 

process NSR and title permit actions 

through streamlined processes should 

consider the best way to achieve their 

administrative efficiency goals while 

maintaining the maximum amount of 

clarity regarding the distinctions 

between title I and title V permit 

actions. In particular, the EPA strongly 

encourages permitting authorities that 

currently employ an ‘‘enhanced NSR’’ 

framework to stop using such 

procedures and instead consider other 

mechanisms for streamlining. See 

section IV.B.4. of this preamble for 

additional information about how 

different streamlined permit issuance 

procedures impact the EPA’s review of 

NSR issues through its title V 

authorities. 

3. Impacts on Regulated Entities 

As far as regulated entities are 

concerned, the approach described in 

this action increases certainty in final 

preconstruction permitting decisions. 

The additional regulatory text that EPA 

proposes to codify in this rulemaking 

should further increase such certainty. 

In order to take advantage of this 

increased certainty, the EPA expects 

that sources subject to both title V and 

NSR permitting programs will have an 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
1174 Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 

121Similar requirements appear in other parts of 

title V. For example: ‘‘The term ‘schedule of 

compliance’ means a schedule of remedial 

measures, including an enforceable sequence of 

actions or operations, leading to compliance with 

an applicable implementation plan, emission 

standard, emission limitation, or emission 

prohibition.’’ 42 U.S.C. 7661(3). ‘‘Nothing in this 

subsection shall be construed to alter the applicable 

requirements of this chapter that a permit be 

obtained before construction or modification.’’ 42 

U.S.C. 7661a(a). Permitting authorities ‘‘have 

adequate authority to . . . issue permits and assure 

compliance . . . with each applicable standard, 

regulation, or requirement under this chapter.’’ 42 

U.S.C. 7661a(b)(5). The regulations to implement 

the program shall include a ‘‘requirement that the 

applicant submit with the application a compliance 

plan describing how the source will comply with 

all applicable requirements under this chapter.’’ 42 

U.S.C. 7661b(b). However, like section 504, these 

sections do not specify the scope of the term 

‘‘applicable requirements’’ or how the permitting 

incentive to work with their permitting 

authorities to ensure that all relevant 

NSR permit actions are subject to robust 

and meaningful public participation 

opportunities. 

4. Impacts on the Public 

The EPA expects that the public at 

large, including communities impacted 

by pollution from facilities regulated 

under the title V and NSR programs, 

will benefit from the increased clarity 

provided in this rulemaking, as well as 

from more effective engagement in NSR 

permitting decisions. A central focus of 

this effort is to more clearly define the 

most appropriate and effective routes for 

the public to participate in—and, if 

necessary, challenge—different types of 

CAA permitting decisions. In this 

manner, this rule does not limit 

meaningful public participation, but 

rather encourages more meaningful 

public participation by directing the 

public to the pathways that can be used 

to most effectively provide oversight 

over different types of permits. 

This rule will allow the public, 

permitting authorities, and the EPA to 

focus their title V-based efforts on issues 

that can be more fully and effectively 

addressed through title V, such as 

supplementing monitoring when 

necessary to assure compliance with 

underlying applicable requirements. 

As explained in section IV.E.4.b. of 

this preamble, the title V permitting 

process has proven a generally 

ineffective mechanism to address 

deficiencies in NSR permitting actions. 

The available title I permitting and title 

III enforcement mechanisms are better 

tools for the public to utilize in 

addressing issues with NSR permitting 

decisions. The EPA’s pre-2017 policies 

that ostensibly allowed the public to 

challenge NSR permit decisions through 

the title V process created a misleading 

incentive for the public to forego those 

more appropriate and effective title I 

appeal mechanisms. This process often 

resulted in the public investing 

considerable resources in pursuing title 

V-based challenges, which had limited 

effect on the permit terms at issue. As 

this proposed rule makes clear, the 

public’s attention and resources would 

be more effectively deployed in 

challenges to NSR permits through the 

appropriate title I permitting and title III 

enforcement channels. 

Additionally, the public should 

benefit from the incentives that this rule 

will create for states and regulated 

entities to ensure that relevant NSR 

permit actions involve public notice and 

the opportunity for comment and 

judicial review. These incentives will 

complement the related (but separate) 

actions that the EPA is considering with 

respect to minor NSR programs. 

Collectively, these actions should 

encourage increased public 

participation in the NSR permitting 

process. 

To the extent that the public is 

deprived of meaningful opportunities to 

address NSR permit deficiencies, the 

title V permitting process should serve 

as a backstop so that the public (and the 

EPA) have the ability to ensure that title 

V permits contain the necessary NSRrelated requirements. 

The EPA solicits comment on 

examples of past situations (not 

hypothetical) where the EPA’s objection 

to a title V permit helped address NSRrelated issues that the public either did, 

or did not, have a chance to address 

through the NSR permitting process. 

E. Rationale for Proposed Action 

As explained in the following 

subsections, title V of the CAA does not 

compel the EPA or state permitting 

authorities to use the title V operating 

permit process to review the substance 

of decisions made during the title I 

(NSR) preconstruction permitting 

process. The statute requires that title V 

permits assure compliance with 

‘‘applicable requirements’’ of the CAA, 

but the statute does not define this term 

or expressly require that permitting 

authorities revisit NSR permitting 

decisions. The EPA interprets the 

statute to mean that the terms and 

conditions of a NSR permit issued 

under EPA-approved (or EPApromulgated) title I rules, with public 

notice and the opportunity for comment 

and judicial review, define the relevant 

NSR-related applicable requirements of 

the SIP (or FIP) for purposes of title V 

permitting. 

The EPA’s interpretation is supported 

by the structure and purpose of title V. 

Congress designed title V to consolidate, 

assure compliance with, and improve 

the enforceability of applicable 

requirements established under other 

CAA programs. The title V program was 

not intended to create new substantive 

requirements or modify substantive 

requirements added in those other 

programs (other than to include 

supplemental compliance assurance 

measures, when necessary). This 

understanding of the purpose of title 

V—both in general and as it relates to 

the intersection of title V and NSR 

permitting—is reflected in the statute 

and regulations, the legislative history, 

EPA statements contemporaneous with 

the promulgation of the initial title V 

regulations, and various federal court 

decisions and EPA statements since that 

time. 

The EPA’s interpretation is also 

consistent with the structure of the CAA 

as a whole. The EPA’s current (and 

proposed) approach gives weight to the 

title I mechanisms that Congress 

provided to establish the specific NSRrelated requirements of SIPs, as well as 

the title I and title III procedures for 

evaluating, challenging, and enforcing 

title I permitting requirements. It also 

respects the system of cooperative 

federalism reflected in the NSR and title 

V permitting programs. 

The EPA’s current (and proposed) 

approach also reflects better policy than 

alternative interpretations because it: 

ensures that applicable requirements 

established in different CAA programs 

are treated consistently in title V 

permitting; better accounts for 

procedural, resource-related, and 

practical limitations associated with 

title V oversight tools; incentivizes the 

use of robust title I avenues of review; 

and respects the finality of NSR 

permitting decisions. 

1. Statutory Text and Interpretation 

The text of title V alone does not 

conclusively define the scope of issues 

subject to review (or re-review) during 

the title V permitting process. In 

relevant part, the CAA requires that title 

V permits ‘‘include enforceable 

emissions limitations and standards 

. . . and such other conditions as are 

necessary to assure compliance with 

applicable requirements of [the CAA], 

including the requirements of the 

applicable implementation plan,’’ i.e., 

the SIP or FIP. 42 U.S.C. 7661c(a). 

Similarly, if the EPA determines that a 

title V permit is ‘‘not in compliance 

with the applicable requirements of [the 

CAA], including the requirements of an 

applicable implementation plan,’’ the 

EPA must object, and if the EPA does 

not, any person may petition the EPA to 

do so. 42 U.S.C. 7661d(b)(1)–(2).121


khammond on DSKJM1Z7X2PROD with PROPOSALS2
Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 1175 

authority or the EPA is to determine what the 

applicable requirements are for an individual 

source as part of its title V permit. 

122Specifically, the court stated the following: 

‘‘We find persuasive EPA’s position that Title V 

lacks a specific textual mandate requiring the 

agency to revisit the Title I adequacy of 

preconstruction permits. Our own review of Title V 

confirms that it contains no such explicit 

requirement, nor any language guiding the agency 

on how to perform a review of that nature. The 

principle that a matter not covered is not covered 

is so obvious that it seems absurd to recite it. A 

number of cases have identified the casus omissus 

pro omisso habendus est canon, under which a 

statute should not be read to include matter it does 

not include. Here, Title V does not tell EPA to 

reconsider [NSR] in the course of Title V 

permitting. We reject Petitioners’ position because 

there is a basic difference between filling a gap left 

by Congress’ silence and rewriting rules that 

Congress has affirmatively and specifically 

enacted.’’ Env’t Integrity Project, 960 F.3d at 248– 

49 (cleaned up) (citing Lamie v. U.S. Tr., 540 U.S. 

526, 538 (2004); Iselin v. United States, 270 U.S. 

245, 251 (1926); Yates v. Collier, 868 F.3d 354, 369 

(5th Cir. 2017); In re Miller, 570 F.3d 633, 638–39 

(5th Cir. 2009)). 

123This interpretation is reflected, in part, in the 

EPA’s existing regulations. 40 CFR 70.2, 71.2. These 

existing regulations can be read to support the 

statutory interpretation explained in this preamble. 

However, in light of the Tenth Circuit’s ruling 

(which held that the EPA’s regulatory definition of 

‘‘applicable requirement’’ precluded the EPA’s 

approach), the EPA is proposing to amend the 

EPA’s regulations to more clearly reflect the EPA’s 

statutory interpretation. For further discussion of 

the EPA’s interpretation of its existing regulations, 

see Big River Steel Order at 9–11. 

124Other portions of the history of this legislation 

describe the purpose of title V in similar terms. See, 

e.g., Conf. Rep. on S. 1630, Speech of Rep. Michael 

Bilirakis (Oct. 26, 1990), 6 CAA Legislative History 

at 10768 (1998). 

However, the term ‘‘applicable 

requirements’’ is not defined in the Act, 

and the statute does not otherwise 

specify how to determine the applicable 

requirements of the CAA or the SIP (or 

FIP) for a particular source. 

With respect to title I preconstruction 

permits, the statutory term ‘‘applicable 

requirements’’ is particularly 

ambiguous. As explained further in 

section IV.E.3.a. of this preamble, 

during the preconstruction permitting 

process, permitting authorities 

determine which NSR requirements in 

the SIP (or FIP) are applicable (e.g., 

major NSR or minor NSR requirements) 

to new or modified sources, and derive 

the specific permit conditions (e.g., 

emission limitations and other 

standards) applicable to a given source 

or modification based on the general 

direction in the SIP. The public has the 

opportunity to provide comment on 

draft permits and also to seek review in 

state court. At the end of this NSR 

permitting process, the NSR permit 

terms reflect the NSR-related 

requirements of the SIP (or FIP) 

applicable to the new or modified 

source. 

The question, then, is whether the 

title V permitting process should be 

used to double-check—and re-check 

during every subsequent title V renewal 

permit—the substantive adequacy of 

applicable requirements established 

through NSR permitting decisions. In 

other words, the question is whether 

title V should be used to assess whether 

the requirements embodied in an NSR 

permit were properly derived from the 

general, overarching SIP (or FIP) 

provisions governing NSR. 

Title V of the CAA contains no 

language expressly mandating such a reevaluation through title V. Notably, the 

Fifth Circuit found the CAA’s silence on 

this topic a persuasive reason for 

upholding the EPA interpretation that is 

the basis for this proposed rule. Env’t 

Integrity Project, 960 F.3d at 248–49.122

The statute’s silence on this topic stands 

in contrast to the presence of more 

specific statutory mandates, such as the 

requirement that title V permits be used 

to add compliance assurance measures 

like monitoring, recordkeeping, and 

reporting requirements. 42 U.S.C. 

7661c(c); see 40 CFR 70.6(c)(1); Sierra 

Club v. EPA, 536 F.3d at 680. 

Moreover, the CAA’s references to 

‘‘applicable requirements’’ do not 

compel such a re-evaluation. Notably, 

the Fifth Circuit rejected the notion that 

this general term should be construed as 

‘‘broad and sweeping,’’ or that this term 

should be read to mandate using title V 

to review of whether requirements in an 

NSR permit accurately reflect the 

requirements of a SIP. See Env’t 

Integrity Project, 960 F.3d at 249–250 

(‘‘[Petitioners] would effectively rewrite 

the clause to read: ‘a de novo 

reconsideration of the source’s 

preconstruction permitting.’ Surely, 

Congress would not have hidden that 

regulatory elephant in this residual 

mousehole.’’). 

In light of the statute’s ambiguity, the 

EPA has adopted an interpretation of 

the statutory terms ‘‘applicable 

requirements’’ and ‘‘requirements of the 

applicable implementation plan.’’ 123

The EPA’s interpretation is that the 

terms and conditions of an NSR permit 

issued under EPA-approved (or EPApromulgated) title I rules, with public 

notice and the opportunity for comment 

and judicial review, define the relevant 

set of ‘‘applicable requirements’’ for 

purposes of title V permitting. That is, 

the ‘‘requirements of an applicable 

implementation plan’’ relevant to a 

particular construction project are the 

requirements that the permitting 

authority determined to be applicable 

during the NSR permitting process, as 

reflected in the terms of such an NSR 

permit. Not only is this interpretation 

consistent with the statutory text, but 

the EPA also considers this to be the 

best interpretation in light of the 

structure and purpose of title V, the 

structure of the CAA as a whole, and 

other policy reasons, as explained in the 

following subsections of this preamble. 

2. Structure and Purpose of Title V 

The EPA’s interpretation of 

‘‘applicable requirements’’ in the 

context of title V and NSR permitting is 

supported by the structure and purpose 

of the title V program—namely, to 

consolidate, assure compliance with, 

and improve the enforceability of 

applicable requirements established 

under other CAA programs. The title V 

program was not intended to establish 

new substantive requirements or modify 

substantive requirements created in 

other programs (other than to include 

supplemental compliance assurance 

measures, when necessary). This 

purpose is reflected in the statute and 

regulations, the legislative history 

associated with Congress’s enactment of 

title V, EPA statements 

contemporaneous with the 

promulgation of the initial title V 

regulations, and various federal court 

decisions and EPA statements since that 

time. 

As introduced in section III.B. of this 

preamble, a core purpose and function 

of title V is to identify, consolidate, and 

assure compliance with the 

requirements applicable to individual 

sources from other, more substantive 

CAA programs. This function is 

embodied primarily within CAA section 

504 and 40 CFR 70.6(a) and (c), which 

generally require that title V permits 

include conditions that assure an 

individual source’s compliance with all 

CAA applicable requirements. 

When Congress enacted title V in 

1990, it explained this purpose as 

follows: 

The first benefit of the title V permit 

program is that . . . it will clarify and make 

more readily enforceable a source’s pollution 

control requirements. Currently, in many 

cases, the source’s pollution control 

obligations . . . are scattered throughout 

numerous, often hard-to-find provisions of 

the SIP or other Federal regulations. . . . 

The air permit program will ensure that all 

of a source’s obligations . . . will be 

contained in one permit document. 

S. Rep. No. 101–228 at 347 (Dec. 20, 

1989), reprinted in 5 Legislative History 

of the Clean Air Act Amendments of 

1990 (CAA Legislative History) at 8687 

(1998).124

In addition to identifying and 

consolidating existing requirements 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
1176 Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 

125See 42 U.S.C. 7661c(c); 40 CFR 70.6(c)(1); 

Sierra Club v. EPA, 536 F.3d 673, 674–45, 680 (D.C. 

Cir. 2008) (‘‘Title V did more than require the 

compilation in a single document of existing 

applicable emission limits and monitoring 

requirements. It also mandated that ‘[e]ach permit 

issued under [Title V] shall set forth . . . 

monitoring . . . requirements to assure compliance 

with the permit terms and conditions.’ . . . [T]he 

Act requires: a permitting authority may 

supplement an inadequate monitoring requirement 

so that the requirement will ‘assure compliance 

with the permit terms and conditions.’ ’’ (citations 

omitted)); see also, e.g., In the Matter of CITGO 

Refining and Chemicals Co., L.P., West Plant, Order 

on Petition No. VI–2007–01 at 6–8 (May 28, 2009). 

This additional purpose is similarly reflected in the 

legislative history. See, e.g., S. Rep. No. 101–228 at 

347, 5 CAA Legislative History at 8687. Various 

compliance assurance requirements are included 

within title V and the EPA’s implementing 

regulations; not all are restricted to monitoring. See 

42 U.S.C. 7661c(a), (b), (c); 40 CFR 70.6(a)(1), (a)(3), 

(c), 71.6(a)(1), (a)(3), (c); see also, e.g., In the Matter 

of Suncor Energy (U.S.A.), Inc., Commerce City 

Refinery, Plant 2 (East), Order on Petition Nos. VIII– 

2022–13 & VIII–2022–14 at 13–17 (July 31, 2023). 

126See 57 FR at 32251 (‘‘While title V generally 

does not impose substantive new requirements, it 

does require that . . . certain procedural measures 

be followed, especially with respect to determining 

compliance with underlying applicable 

requirements. The program will generally clarify, in 

a single document, which requirements apply to a 

source and, thus, should enhance compliance with 

the requirements of the Act. . . . The title V permit 

program will enable the source, States, EPA, and 

the public to understand better the requirements to 

which the source is subject, and whether the source 

is meeting those requirements. Increased source 

accountability and better enforcement should 

result.’’); id. at 32284 (‘‘As discussed above, title V 

is primarily procedural, and is not generally 

intended to create any new substantive 

requirements. . . . The title V permit is intended 

to record in a single document the substantive 

requirements derived from elsewhere in the Act. 

Therefore, in most cases the only emissions limits 

contained in the permit will be emissions limits 

that are imposed to comply with the substantive 

requirements of the Act (including SIP 

requirements).’’). 

127See 81 FR 57822, 57826–27 (Aug. 24, 2016) 

(‘‘For the most part, title V of the CAA does not 

impose new pollution control requirements on 

sources. The definition of ‘applicable requirements’ 

in the part 70 regulations includes many standards 

and requirements that are established through other 

CAA programs, such as standards and requirements 

under sections 111 and 112 of the Act, and terms 

and conditions of preconstruction permits issued 

under the New Source Review programs. 40 CFR 

70.2. Once those air quality control requirements 

are established in those other programs, they are 

incorporated into a source’s title V permits as 

appropriate. . . . [I]n providing an opportunity for 

harmonization through title V of the CAA, Congress 

did not replace or remove the procedures and 

requirements for establishing substantive 

requirements that exist in other provisions of the 

CAA.’’). 

128Hundreds of EPA petition orders include 

background discussion reiterating this core function 

of title V. Electronic copies of these orders are 

available on the EPA’s public database, https://

www.epa.gov/title-v-operating-permits/title-vpetition-database. To the extent individual petition 

orders contain particularly relevant discussion, they 

are discussed elsewhere in this preamble. 

129See, e.g., Utility Air Reg. Group v. EPA, 573 

U.S. 302, 309 (2014) (‘‘Unlike the PSD program, 

Title V generally does not impose any substantive 

pollution-control requirements.’’); Env’t Integrity 

Project, 960 F. 3d at 250 (‘‘By all accounts, Title V’s 

purpose was to simplify and streamline sources’ 

compliance with the Act’s substantive 

requirements. Rather than subject sources to new 

substantive requirements—or new methods of 

reviewing old requirements—the intent of Title V 

was to consolidate into a single document (the 

operating permit) all of the clean air requirements 

applicable to a particular source of air pollution.’’ 

(cleaned up)); id. at 244; see also, e.g., U.S. Sugar 

Corp. v. EPA, 830 F.3d 579, 597 (D.C. Cir. 2016); 

US v. EME Homer City Generation, LP, 727 F. 3d 

274, 280 (3rd Cir. 2013); Sierra Club v. Johnson, 541 

F.3d 1257, 1260 (11th Cir. 2008); Sierra Club v. 

Leavitt, 368 F.3d 1300, 1302 (11th Cir. 2004); 

Appalachian Power Co. v. EPA, 208 F. 3d 1015, 

1026–27 (D.C. Cir. 2000). 

130Similarly, one lawmaker involved in the 

statute’s enactment explained: ‘‘In the past, some 

provisions of the Clean Air Act—for example, the 

nonattainment and PSD new source requirements— 

were, and will continue to be, implemented through 

preconstruction permits.’’ Conf. Rep. on S. 1630, 

Speech of Rep. Michael Bilirakis (Oct. 26, 1990), 6 

CAA Legislative History at 10768 (1998) (emphasis 

added). 

applicable to a source, CAA section 504 

provides the authority to use title V 

permits to establish additional 

requirements relating to compliance 

assurance. For example, it is wellestablished that title V permits may be 

used to create or supplement monitoring 

requirements when necessary to assure 

an individual source’s compliance with 

underlying applicable requirements that 

do not themselves contain sufficient 

monitoring provisions.125 This 

exception proves the rule; where 

Congress intended title V to serve as a 

vehicle for the reevaluation of existing 

requirements or for imposing new 

requirements, it expressly said so. 

Beyond title V’s consolidation and 

compliance assurance functions, it is 

axiomatic that title V generally does not 

impose new pollution control 

requirements on sources or provide a 

vehicle to modify such requirements 

established under other CAA programs. 

As stated in the congressional record: 

The permit provisions of title V provide a 

focus for this harmonization [of other titles 

of the CAA], although title V does not 

change, and gives EPA no authority to 

modify, the substantive provisions of these 

other titles. . . . [T]itle V does not change, 

and gives EPA no authority to modify, the 

substantive provisions of these other 

titles. . . . Title V creates no new 

substantive emission control requirements. 

Nothing in the permitting title should be read 

to increase the stringency of any control 

requirement nor to delay or accelerate the 

effectiveness of such requirements, except as 

expressly provided in titles I, III, and IV. 

Conf. Rep. on S. 1630, Speech of Rep. 

Michael Bilirakis (Oct. 26, 1990), 6 CAA 

Legislative History at 10768 (1998). 

Recognizing the core functions of the 

title V program, the EPA’s regulations 

have provided since 1992: ‘‘All sources 

subject to these regulations shall have a 

permit to operate that assures 

compliance by the source with all 

applicable requirements. While title V 

does not impose substantive new 

requirements, it does require that fees be 

imposed on sources and that certain 

procedural measures be adopted 

especially with respect to compliance.’’ 

40 CFR 70.1(b) (emphasis added). These 

principles are further explained in EPA 

statements contemporaneous with the 

initial 1992 title V regulations,126

subsequent rulemakings,127 and in 

numerous orders responding to 

petitions challenging individual title V 

permits.128 Likewise, federal courts 

across the nation have acknowledged 

and reiterated these general 

principles.129

Not only were these general 

principles well-established at the 

inception of the title V program, but 

both Congress and the EPA specifically 

spoke to the manner in which these 

general principles would guide the 

interaction between title V and title I 

permitting programs. For example, a 

Senate Report accompanying title V 

explained: 

New and modified major sources are 

already required to obtain construction 

permits under the [NSR] and [PSD] 

provisions of the current Act. EPA should 

avoid imposing additional construction 

permit requirements under title V. Thus, 

construction permits may continue to be 

issued under the existing provisions of the 

Act, but title V will apply with respect to 

existing source requirements not otherwise 

required in the construction permit, e.g., fees. 

S. Rep. No. 101–228 at 349, 5 CAA 

Legislative History at 8689 (emphasis 

added).130 Thus, the legislative history 

articulates Congress’s intent that, 

notwithstanding the enactment of title 

V, NSR permits would continue to be 

issued as they had for over a decade. 

Title V permits would be used to 

incorporate the requirements of NSR 

permits, but not to alter or impose 

additional NSR-related requirements. 

As previously noted, in the 1991 and 

1992 preambles to the EPA’s initial title 

V rules, the agency announced a similar 

understanding of the intersection of title 

V and title I permitting. The EPA did 

not express an intention to use the title 

V permitting process to review the 

applicable requirements established in 

preconstruction permitting programs 

under title I of the CAA. To the 

contrary, the EPA stated: ‘‘Any 

requirements established during the 

preconstruction review process also 

apply to the source for purposes of 

implementing title V. If the source 

meets the limits in its NSR permit, the 

title V operating permit would 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 1177 

131An agency’s contemporaneous interpretation 

is often given great weight in understanding the 

meaning of a statute. See e.g., Good Samaritan 

Hosp. v. Shalala, 508 U.S. 402, 414 (1993) (‘‘Of 

particular relevance is the agency’s 

contemporaneous construction which ‘we have 

allowed . . . to carry the day against doubts that 

might exist from a reading of the bare words of a 

statute.’ ’’ (quoting FHA v. The Darlington, Inc., 358 

U.S. 84, 90 (1958))). 

132See Env’t Integrity Project, 960 F.3d at 251 

(‘‘We recognize that EPA has reverted to its original 

interpretation of § 70.2, reflecting its changing 

views of Title V. We take the agency’s change of 

position into account in determining whether to 

defer to its position. But even when ‘the agency has 

embraced a variety of approaches’ we may still 

defer to its present position, ‘especially’ when the 

current view ‘closely fits the design of the statute 

as a whole.’ ’’ (quoting Shahala, 508 U.S. at 417– 

18; additional citation omitted)). 

133See also Env’t Integrity Project, 960 F.3d at 253 

(‘‘Title I [includes] more detailed procedures for indepth oversight of case-specific permitting 

decisions. Such permitting decisions follow state 

appeals or enforcement actions authorized by other 

provisions of the Act, including citizen suits under 

Title III. Those mechanisms are better structured to 

provide agency and citizen oversight of 

preconstruction permitting. . . . Title V contains 

none of the procedures that would guide those 

challenges, as Titles I and III do. . . . And those 

avenues provide more time for development and 

consideration of the potential issues.’’ (internal 

citations and quotations omitted)). 

incorporate these limits without further 

review.’’ 56 FR 21712, 21738–39 (May 

10, 1991) (emphasis added). Similarly, 

the EPA explained: ‘‘The intent of title 

V is not to second-guess the results of 

any State NSR program.’’ Id. at 21739 

(emphasis added). Further, ‘‘Decisions 

made under the NSR and/or PSD 

programs (e.g., [BACT]) define 

applicable SIP requirements for the title 

V source and, if they are not otherwise 

changed, can be incorporated without 

further review into the operating permit 

for the source. The title V program is not 

intended to interfere in any way with 

the expeditious processing of new 

source permits.’’ Id. at 21721 (emphasis 

added). The preamble to the final rule 

further confirms that ‘‘[d]ecisions made 

under the NSR and/or PSD programs 

define certain applicable SIP 

requirements for the title V source.’’ 57 

FR at 32259 (emphasis added). 

The EPA’s contemporaneous 

interpretation of the statute (and the 

regulations implementing this statute), 

should be afforded great weight, as the 

Fifth Circuit acknowledged in Env’t 

Integrity Project, 960 F.3d at 251 (‘‘We 

also agree with EPA that the language in 

part 70’s preamble is probative of Title 

V’s purpose as a whole.’’).131 Although 

the EPA departed from this 

interpretation during the 2000s, the 

EPA’s return to this interpretation 

reflects a better construction of the 

statute and congressional intent.132 As 

the Fifth Circuit stated: ‘‘We find 

persuasive EPA’s view that, because 

Title V was not intended to add new 

substantive requirements to the Act, it 

should not be interpreted as Petitioners 

urge. . . . This goal, as EPA argues, is 

at cross-purposes with using the Title V 

process to reevaluate preconstruction 

permits.’’ Id. at 250–51. 

Other statutory provisions within title 

V further support the EPA’s 

interpretation. In enacting title V, 

Congress directed the EPA to ‘‘develop 

streamlined procedures in cases where 

the permit simply incorporates without 

changing[ ] existing requirements found 

in the SIP or in other provisions of the 

Act.’’ S. Rep. No. 101–228 at 353, 5 CAA 

Legislative History at 8693. Reflecting 

this directive, title V requires state 

programs to have ‘‘[a]dequate, 

streamlined, and reasonable procedures 

. . . for expeditious review of permit 

actions . . . .’’ 42 U.S.C. 7661a(b)(6). 

Requiring a permitting authority, or the 

EPA, to go back and review final 

permitting decisions that have already 

been subject to the safeguards of public 

notice and judicial review would 

frustrate the goal of ‘‘expeditious review 

of permit actions.’’ 

Similarly, Congress provided 

abbreviated timeframes for the EPA to 

review a proposed title V permit: 45 

days for the EPA’s independent review, 

and 60 days if confronted with a 

petition to object. 42 U.S.C. 7661d(b); 

see 40 CFR 70.8(c), (d). Based on ‘‘the 

abbreviated timeline Congress gave 

EPA,’’ the Fifth Circuit in Env’t Integrity 

Project concluded ‘‘that these timelines 

are inconsistent with an in-depth and 

searching review of every permitting 

decision regarding a given source.’’ 

Env’t Integrity Project, 960 F.3d at 

251.133 This point is compounded by 

the fact that title V permits must be 

renewed every 5 years. 42 U.S.C. 

7661a(b)(5)(B), (b)(6); see, e.g., 40 CFR 

70.6(a)(2). As the Fifth Circuit stated, 

‘‘the fact that Title V permits must be 

renewed every 5 years tends to support 

the agency’s view that Title V was not 

intended to serve as a vehicle for reexamining the underlying substance of 

preconstruction permits. Subjecting a 

source’s preconstruction permit to 

periodic new scrutiny, without any 

changes to the source’s pollution 

output, would be inconsistent with Title 

V’s goal of giving sources more security 

in their ability to comply with the Act.’’ 

Env’t Integrity Project, 960 F.3d at 251– 

52. 

In summary, neither the structure of 

title V nor the congressional record 

indicate that Congress intended the EPA 

to reevaluate and rewrite substantive 

title I preconstruction requirements 

through the title V process. Title V was 

enacted largely to identify and 

consolidate the variety of requirements 

applicable to each facility and assure 

compliance with these requirements 

through provisions like monitoring, 

recordkeeping, and reporting. 

Reexamining title I permits through title 

V would not help address either of these 

objectives. Moreover, congressional 

intent for efficiency would be 

undermined if permitting authorities 

were required to second-guess complex 

decisions reflected in state-issued title I 

permits during title V review, and then 

re-check these decisions during each 

subsequent title V renewal. Such a 

review would also be generally 

incompatible with the limited 

timeframes that Congress provided for 

EPA’s review of title V permits. These 

considerations related to the structure 

and purpose of title V align with the 

EPA’s interpretations of the statute from 

the early 1990s, as well as the opinions 

of federal courts. 

All indications of congressional intent 

suggest that the EPA’s role in oversight 

over the issuance of title V permits 

should be limited. In the case of 

preconstruction permitting 

requirements derived from title I of the 

Act, the purpose of title V is to ensure 

that the terms and conditions of the 

preconstruction permit are properly 

included as ‘‘applicable requirements,’’ 

and that the permit contains monitoring, 

recordkeeping, and reporting sufficient 

to assure compliance with those permit 

terms and conditions. See 42 U.S.C. 

7661c(a), (c); 40 CFR 70.6(a)(1), (a)(3), 

70.6(c)(1). 

3. Structure of the CAA as a Whole 

The EPA’s interpretation of 

‘‘applicable requirements’’ as that term 

relates to the interface of title I and title 

V permits is supported by the structure 

of the CAA as a whole. See Utility Air 

Reg. Group v. EPA, 573 U.S. 302, 320 

(2014) (acknowledging the 

‘‘fundamental canon of statutory 

construction that the words of a statute 

must be read in their context and with 

a view to their place in the overall 

statutory scheme’’ (internal citations 

and quotation marks omitted)). 

Specifically, the EPA’s interpretation is 

consistent with the title I permitting 

mechanisms that Congress provided to 

establish and define the NSR-related 

requirements of SIPs; the title I and title 

III procedures for evaluating, 

challenging, and enforcing title I 

permitting requirements; and the 

overarching system of cooperative 

federalism reflected in the NSR and title 

V permitting programs. 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
1178 Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 

134This section primarily discusses the issuance 

of NSR permits under an EPA-approved SIP. 

Similar principles apply to the issuance of NSR 

permits under an EPA-promulgated FIP. 

135Although Congress did not specifically require 

that the minor NSR program be implemented 

through permitting, nearly all SIPs across the nation 

implement minor NSR through permitting. This 

distinction is not relevant to the approach proposed 

in this rule, because if a source does not obtain a 

title I permit to authorize construction, then there 

would be no permit to establish the ‘‘applicable 

requirements’’ for title V purposes, and the EPA 

would review whether the title V permit assures 

compliance with the relevant requirements of the 

SIP. See section IV.B.5. of this preamble for further 

discussion. 

136As stated in section IV.C. of this preamble, the 

EPA’s view that reevaluation of NSR permits is not 

appropriate in the title V permitting context does 

not mean that the EPA agrees that the state reached 

the proper decision when setting terms and 

conditions of such an NSR permit, nor does it 

diminish the opportunities to review NSR 

preconstruction permitting decisions under title I of 

the CAA. See Env’t Integrity Project, 960 F.3d at 

253. 

a. Implementation of SIP Requirements 

Through Title I NSR Permits 

States must submit SIPs containing 

NSR permitting programs to EPA for 

approval. 42 U.S.C. 7410(a)(2)(C).134

States then determine and define the 

specific NSR-related requirements of 

SIPs that apply to individual 

construction projects by issuing NSR 

permits to individual facilities. This 

two-step process under title I is central 

to the EPA’s interpretation of the 

statutory term ‘‘applicable 

requirements’’ as it relates to the 

interface between title I and title V 

permits. It also differentiates NSR-based 

applicable requirements from other 

types of applicable requirements. 

Section III. of this preamble discusses 

how different types of ‘‘applicable 

requirements’’ are implemented to 

greater or lesser extents through title V 

permitting. In summary, some 

applicable requirements are selfimplementing, in that the specific 

emission limitations or standards 

applicable to an individual source (or 

entire source category) are expressly 

identified within in the underlying 

regulation (e.g., a SIP, FIP, NSPS, or 

NESHAP regulation). These types of 

self-implementing requirements are 

incorporated into title V permits 

without further review, other than to 

ensure that the title V permit contains 

sufficient conditions to assure 

compliance with those requirements. By 

contrast, other CAA-based requirements 

may be written in more general terms, 

requiring additional steps to define the 

specific requirements that are applicable 

to a given facility. In some situations— 

such as where the underlying regulation 

contains no direction about the 

mechanism that must be used to further 

define such requirements—those 

requirements may be defined through 

the title V permitting process. NSR 

requirements are unique, as they fall 

between these two examples. 

The portions of a SIP addressing NSR 

are general in nature. SIPs require new 

and modified sources to obtain certain 

permits before beginning construction; 

SIPs specify thresholds and other 

methods to determine what type of 

permit a source must obtain; SIPs 

identify other preconditions to 

obtaining a permit (including 

requirements related to the NAAQS); 

and SIPs establish guidelines for 

establishing specific limitations and 

other conditions that must be included 

in a permit. Because the NSR-related 

provisions within a SIP are necessarily 

general, they are not self-implementing, 

and further fact-specific analysis is 

required to develop the specific 

requirements applicable to a particular 

new or modified source. 

The question then becomes: is title V 

the appropriate mechanism to establish 

(or revisit) the specific NSR-related SIP 

requirements that are applicable to 

construction activities at a particular 

source? As noted earlier, title V of the 

CAA does not mandate this outcome. 

And the structure of title I makes clear 

that this was not Congress’s intent. 

Congress required in title I that SIPs 

regulate construction and require 

preconstruction permits. See, e.g., 42 

U.S.C. 7475(a)(1), 7502(c)(5); see 42 

U.S.C. 7410(a)(2)(C).135 It thus follows 

that the preconstruction permitting 

requirements for individual sources are 

established under these programs in the 

SIP, not through title V. The SIPs 

identify the title I permitting process as 

the mechanism by which the more 

general SIP requirements applicable to 

construction of stationary sources will 

be defined for each new or modified 

source. During that title I permitting 

process, a permitting authority 

determines which NSR-related 

requirements of the SIP are applicable 

and designs specific permit terms and 

conditions to satisfy these more general 

SIP requirements. This process also 

includes the opportunity for the public 

to evaluate and challenge the state’s 

decisions. Overall, the process is 

designed to result in an NSR permit that 

contains all terms and conditions 

necessary to satisfy the NSR-related 

requirements of the SIP. Thus, it is the 

title I permitting process—not the 

general requirements within the SIP 

itself—that defines the ‘‘applicable 

requirements’’ of the CAA related to 

NSR, at least insofar as title V is 

concerned. 

In summary, the NSR requirements of 

a SIP are not self-implementing, but 

they also do not depend on the title V 

process to be defined. Instead, the 

applicable NSR-related requirements of 

SIPs are established through a dedicated 

title I-based mechanism with its own 

public participation opportunities and 

EPA oversight authority: the NSR 

permitting process. 

The CAA requires that title V permits 

assure compliance with ‘‘requirements 

of an applicable [SIP].’’ But the CAA 

does not specify that title V be used to 

re-create or re-evaluate the requirements 

of the SIP that were already defined 

through the specific mechanism 

Congress designed to define them: the 

NSR permitting process. Again, the 

purpose of title V is not to create or alter 

the substantive requirements from other 

parts of the CAA, but instead to identify, 

consolidate, and assure compliance 

with those requirements established in 

these other programs that apply to each 

individual source. 

b. Oversight of Title I Programs and 

Permitting Decisions 

The many programmatic and casespecific oversight tools contained 

within title I demonstrate that it is not 

necessary—and Congress did not 

intend—to use additional title V permit 

oversight tools to second-guess the 

results of title I permitting decisions.136

As introduced in section IV.C.2. of this 

preamble, title I provides opportunities 

for programmatic oversight, oversight 

over individual permitting decisions, 

and oversight through enforcement. 

Through the review of SIP 

submissions, the EPA ensures that states 

have programs in place that provide the 

authority to issue substantively sound 

preconstruction permits, while 

respecting Congress’s intended role for 

the states. Congress gave the EPA 

authority under title I to disapprove any 

proposed SIPs that are inconsistent with 

federal statutory and regulatory 

authorities governing NSR. 42 U.S.C. 

7410(k). For example, if a state submits 

a proposed SIP containing rules to 

calculate major source emissions 

thresholds, and those rules are 

inconsistent with the CAA or its 

implementing regulations, the EPA 

cannot approve the SIP. Id. If the state’s 

program subsequently fails to meet 

statutory or regulatory requirements 

related to NSR, the EPA can call for a 

revision of the SIP. 42 U.S.C. 7410(k)(5). 

Further, if a state fails to properly 

implement its NSR program, the EPA 

can take additional actions, including 

orders, administrative penalties, and 

civil actions. 42 U.S.C. 7413(a)(2), (5). 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 1179 

137See supra note 113 and accompanying text. 

138See supra note 114 and accompanying text. 

139 In fact, as noted in section IV.E.2. of this 

preamble, the legislative history surrounding the 

1990 CAA Amendments suggests that Congress did 

not intend for the title V program to change the 

implementation of title I permits. 

The availability of these title I-based 

authorities obviates the need to use title 

V-based oversight tools to address 

programmatic issues associated with 

state NSR programs. 

In terms of reviewing individual title 

I permits, each SIP must provide for 

public notice and an opportunity for 

comment on proposed NSR permits in 

its preconstruction permit program. 42 

U.S.C. 7475(a)(2); 40 CFR 51.161; 

51.165(i), 51.166(q). The EPA may 

provide feedback on state-issued NSR 

permits through this process.137 Thus, 

both the public and the EPA can seek to 

correct potential errors in proposed 

preconstruction permits, including 

threshold determinations about whether 

a source or modification is minor or 

major, and can also challenge the 

content of permit terms. Should a state 

permitting authority fail to address 

legitimate comments, either the public 

or the EPA can seek review of 

preconstruction permits in state 

administrative and judicial forums.138

Congress also provided the EPA and 

the public with various enforcement 

mechanisms to address title I permitting 

issues on a facility-by-facility basis. The 

EPA possesses the authority to issue 

injunctive orders to halt construction. 

42 U.S.C. 7413(a)(5)(A), 7477. The EPA 

may also pursue various types of civil 

or criminal enforcement actions 

pursuant to sections 113 and 167 of the 

Act. 42 U.S.C. 7413, 7477. In title III of 

the CAA, Congress also provided 

authority for citizens to bring 

enforcement actions seeking civil 

penalties and injunctive relief against a 

source that has violated certain NSR 

requirements. 42 U.S.C. 7604(a)(1), 

(a)(3). The enforcement-based tools 

available to the EPA and members of the 

public can be used to ensure that 

decisions made in establishing the terms 

of a major NSR permit, such as BACT 

limits, were made on reasonable 

grounds properly supported by the 

record. See, e.g., Alaska Dep’t of Env’t 

Conservation v. EPA, 540 U.S. 461 

(2004). Additionally, they can be used 

to address situations where a source 

failed to obtain a required major NSR 

permit (even where it obtained a minor 

source permit). See, e.g., U.S. v. S. Ind. 

Gas & Elec. Co., No. IP99–1692–CM/F, 

2002 WL 1760699, at *3–5 (S.D. Ind. 

July 26, 2002); United States v. Ford 

Motor Co., 736 F. Supp. 1539, 1550 

(W.D. Mo. 1990). These powerful 

enforcement tools enable the EPA and 

the public to directly correct the 

behavior of facilities that pursue illegal 

construction. 

Overall, the availability of title I 

oversight tools weighs against using title 

V oversight tools to address alleged 

defects with NSR permitting decisions. 

As the Fifth Circuit explained: 

EPA contrasts Title V’s silence on this front 

with more stringent oversight authority 

provided in Title I, arguing that this supports 

reading the title V provision to supply a more 

limited oversight role for the EPA with regard 

to state implementation of preconstruction 

permitting programs. The agency explains 

that Title I is better geared for in-depth 

oversight of case-specific state permitting 

decisions such as through the state appeal 

process or an order or action under section[ ] 

113 or section 167. And, the agency urges, 

the absence of such schemes in Title V shows 

Congress did not intend to recapitulate the 

Title I process in Title V. We find this 

reasoning persuasive. 

Env’t Integrity Project, 960 F.3d at 249 

(internal quotations and citations 

omitted)). Further, these title I-based 

oversight tools are more effective than 

the more limited title V oversight tools. 

See section IV.E.4.b. of this preamble for 

further discussion of the practical 

considerations and other policy reasons 

why title V oversight tools are not wellsuited to resolving complex NSR 

permitting issues. 

c. Cooperative Federalism and 

Congressional Intent 

Congress, the EPA, and the courts 

have often described the CAA (like 

many other environmental statutes) as a 

program of cooperative federalism. See, 

e.g., 42 U.S.C. 7401(a)(3)–(4); Env’t 

Integrity Project, 960 F.3d at 252. The 

EPA and the states work together to 

realize the goals of the CAA, but they 

have different roles. States have the 

‘‘primary responsibility’’ for developing 

SIPs, 42 U.S.C. 7407, as well as issuing 

title I permits under SIP programs. 

There is no indication that, in 

enacting title V, Congress intended to 

change the balance of state 

responsibility and federal oversight of 

title I permitting programs.139 To the 

contrary, the fact that Congress 

specifically provided a title I-based 

mechanism to establish the applicable 

NSR-related requirements, as well as 

title I- and title III-based tools for the 

EPA and citizens to oversee this 

program, weighs against using title V to 

re-evaluate, re-establish, or otherwise 

oversee those title I requirements. 

Congress ‘‘does not alter the 

fundamental details of a regulatory 

scheme in vague terms or ancillary 

provisions—it does not, one might say, 

hide elephants in mouseholes.’’ 

Whitman v. Am. Trucking Ass’ns, 531 

U.S. 457, 468 (2001). A reading of title 

V that would transform it into an 

opportunity to reevaluate previous 

preconstruction approvals, instead of 

simply incorporating existing air 

pollution requirements into one 

document, would inappropriately ‘‘alter 

the fundamental details’’ of the 

oversight authorities the EPA has under 

title I of the Act. 

The text of the Act does not indicate 

that Congress intended to create this 

type of additional administrative 

oversight mechanism for 

preconstruction permitting actions in an 

operating permit program designed to 

consolidate and make existing 

requirements enforceable. While there is 

language in title V requiring that a 

permit ‘‘assure compliance with 

applicable requirements of this 

chapter,’’ e.g., 42 U.S.C. 7661c(a), and 

similarly broad language in other parts 

of title V, this type of general language 

does not clearly or specifically say that 

a title V permitting authority must 

reevaluate preconstruction permitting 

decisions that have already been made 

under title I each time that it issues or 

renews a title V permit. Instead, this 

general language in the statute should 

be read to mean that the title V permit 

must include conditions to assure 

compliance with the terms and 

conditions of the source-specific 

preconstruction permits. 

In summary, as the Fifth Circuit 

concluded in its close examination of 

Title V: 

Beyond the structure of Title V, EPA also 

persuasively grounds its interpretation in the 

structure of the Act as a whole. According to 

EPA, when Congress added preconstruction 

permitting requirements to Title I in 1977, it 

understood that the adequacy of state 

preconstruction permitting decisions would 

be subject to review in state administrative 

and judicial forums. It gave EPA oversight 

authority over preconstruction permitting 

only in specific ways, to do specific things. 

For example, Congress delineated the 

processes EPA must go through to approve 

SIPs. When it enacted Title V thirteen years 

later, Congress granted EPA no such 

authority. Congress gave no clear indication 

that it intended to alter the balance of 

oversight EPA has over state permitting 

processes. Section 7661c(a)’s requirement 

that a Title V permit assure compliance with 

applicable requirements is general and broad 

and does not clearly or specifically require 

the revisiting of preconstruction permitting 

decisions. Once again, the elephants in 

mouseholes canon supports this reading. 

Env’t Integrity Project, 960 F.3d at 252 

(cleaned up). 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
1180 Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 

140To the extent federal court review of NSR 

decisions offers independent value beyond that 

which may be achieved through state courts, the 

CAA specifically provides for various means by 

which the EPA or the public can raise NSR issues 

to federal courts. See sections IV.C.2. and IV.E.3.b. 

of this preamble for additional information. 141See supra note 32 and accompanying text. 

4. Policy Reasons 

In addition to the textual and legal 

interpretations supporting this action, 

several policy considerations also 

support this proposed rule. The EPA’s 

current (and proposed) approach: 

ensures that applicable requirements 

established in different CAA programs 

are treated consistently in title V 

permitting; better accounts for 

procedural, resource-based, and 

practical limitations associated with 

title V oversight tools; incentivizes the 

use of proper title I avenues of review; 

and respects the finality of NSR 

permitting decisions. 

a. Consistent Treatment of Applicable 

Requirements From Other CAA 

Programs 

The EPA’s current (and proposed) 

approach aligns the EPA’s treatment of 

preconstruction permits with how the 

EPA has consistently treated other 

‘‘applicable requirements’’ under title V. 

As detailed in section III.E. of this 

preamble, for many other applicable 

requirements, permitting authorities do 

not reconsider the content of those 

requirements in title V permits, nor does 

the EPA in its oversight role of title V 

permitting. For instance, the EPA would 

not allow a permitting authority to 

revise the self-implementing substantive 

requirements of an NSPS established 

under CAA section 111 or a NESHAP 

established under CAA section 112. 

Similarly, it would not be appropriate 

for the EPA to review or revise any selfimplementing requirements of a SIP 

approved under CAA section 110. In 

fact, as explained in Section III.G of this 

preamble, even if the EPA disagrees 

with the content of a SIP, until the EPA 

approves a corrective SIP revision or 

issues a FIP, the SIP requirement 

remains an ‘‘applicable requirement’’ 

that should be incorporated unchanged 

into the title V permit. 

For purposes of establishing 

‘‘applicable requirements’’ for title V 

permitting, it is logical and appropriate 

to treat decisions that go through similar 

processes similarly. Each of the 

applicable requirements addressed in 

the previous paragraph were established 

pursuant to a process that included 

public notice and the opportunity for 

comment and judicial review. Once they 

are established following these 

procedures, it would be inappropriate to 

reevaluate the substance of these 

requirements in title V permitting. 

Likewise, most source-specific NSR 

permitting decisions must go through a 

similar process at the state level. Once 

established through the appropriate 

procedures, and unless and until the 

terms and conditions of an NSR permit 

are revised, reopened, suspended, 

revoked, reissued, terminated, 

augmented, or invalidated through some 

other mechanism (such as a state court 

appeal or enforcement action), the 

‘‘applicable requirements’’ remain the 

terms and conditions of the issued NSR 

permit. These requirements should be 

incorporated into the title V permit 

without further review, just like all 

other similarly established applicable 

requirements. 

Any differences between NSR-based 

applicable requirements and other types 

of applicable requirements do not 

provide a convincing reason to treat 

NSR requirements differently. For 

example, the fact that NSR permits are 

reviewed through the state courts, as 

opposed to federal courts, is not 

material. As discussed in section IV.B.2. 

of this preamble, regardless of the 

jurisdiction involved, both processes are 

functionally similar and offer similar 

levels of public involvement and 

measured decisionmaking.140

Additionally, as discussed in section 

IV.E.3.a. of this preamble, the NSRrelated requirements of the SIP are often 

general and would not be described as 

‘‘self-implementing’’ in the same 

manner as NSPS, NESHAP, or certain 

source-specific SIP requirements. 

However, after a source goes through the 

preconstruction permitting process and 

emerges with a final NSR permit, the 

terms of that NSR permit are legally 

effective in the same manner as any 

NSPS, NESHAP, or source-specific SIP 

provision. That is, those NSR permit 

terms are immediately applicable and 

enforceable and require no further 

substantive refinement through, for 

example, title V permitting. 

The EPA’s current (and proposed) 

approach also standardizes the EPA’s 

treatment of questions related to the 

applicability of different types of CAA 

requirements. Identifying which 

requirements apply to a source (i.e., 

which requirements must be included 

in the title V permit) is a key function 

of the title V permitting process. 

However, it is only necessary and 

appropriate to use title V to 

substantively address questions 

regarding applicability when such 

questions have not already been 

resolved by the underlying applicable 

requirement itself and when such 

questions require further site-specific 

factual analysis. For example, it would 

be appropriate to use the title V 

permitting process to determine 

whether—or which specific 

requirements within—a generally 

applicable NSPS, NESHAP, or SIP 

requirement applies to a particular 

source or piece of equipment, provided 

such a decision was not reflected in 

some other final action. Likewise, title 

V could be used to address whether a 

source should have obtained either a 

minor or major NSR permit where such 

a decision had not already been made 

following the appropriate title I 

permitting process. 

By contrast, if the applicability of a 

SIP requirement is established on the 

face of the SIP itself (e.g., in a sourcespecific SIP provision), the EPA would 

not re-evaluate this question through 

title V. Or, if the EPA has already issued 

a formal determination regarding the 

applicability of an NSPS or NESHAP 

standard, the EPA would not re-evaluate 

the same issues through title V.141

Provided a minor NSR permit has been 

issued following sufficient procedures, 

major NSR applicability questions are 

similar to the latter two examples. That 

is, where an NSR applicability 

determination has already been made 

through the title I process—where a 

state decides that major NSR does not 

apply to new or modified source and 

therefore issues a minor NSR permit— 

that applicability determination 

establishes the relevant requirements of 

the SIP that are applicable to the source 

or project. Any further action by EPA 

through title V would involve 

reconsidering that final title I action 

relevant to applicability. Moreover, if 

EPA were to conclude that major NSR 

requirements were applicable (as 

opposed to minor NSR requirements), 

such a determination would effectively 

require revising the substantive 

applicable requirements established in 

the final minor NSR permit (since major 

NSR requirements are generally more 

stringent than minor NSR 

requirements). Neither of these 

outcomes are consistent with how the 

EPA treats applicable requirements and 

applicability determinations under 

other CAA programs. Accordingly, the 

EPA considers it better policy to afford 

NSR applicability decisions the same 

finality as applicability decisions under 

other CAA programs. 

b. Procedural, Resource-Based, and 

Other Practical Limitations of Title V 

Oversight Tools 

In the EPA’s experience, NSR 

permitting issues are among the most 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 1181 

142See Env’t Integrity Project, 960 F.3d at 253 

(‘‘We are persuaded by the agency’s contrasting 

Title V against Title I’s more detailed procedures for 

in-depth oversight of case-specific permitting 

decisions. Such permitting decisions follow state 

appeals or enforcement actions authorized by other 

provisions of the Act, including citizen suits under 

Title III. Those mechanisms are better structured to 

provide agency and citizen oversight of 

preconstruction permitting. . . . Title V contains 

none of the procedures that would guide those 

challenges, as Titles I and III do. . . . And those 

avenues provide more time for development and 

consideration of the potential issues.’’ (internal 

citations and quotations omitted)). 

143See, e.g., In the Matter of Wisconsin Public 

Service Corporation, Weston Generating Station, 

Order on Petition No. V–2006–4 at 5–7 (December 

19, 2007). 

144See, e.g., Appleton Order at 5. 

145As explained previously, the EPA’s 

regulations allow sources subject to major NSR 

Continued 

factually and legally complicated issues 

raised during the title V permitting (and 

petition) process. For multiple reasons, 

the oversight tools associated with title 

V permitting process are a poor fit for 

resolving NSR permitting issues. 

Compared to the available title I 

avenues for review, the title V process 

features limited timelines and 

procedural opportunities to fully 

evaluate complex title I issues. 

Reviewing complex NSR issues through 

title V involves a considerable resource 

burden and often is impracticable for 

decisions made years ago. Even where 

title V can be used to review NSR 

issues, the EPA’s authority to resolve 

such issues is indirect, at best. 

Procedural constraints associated 

with title V oversight tools weigh 

against using these tools to resolve 

complex NSR issues. Congress provided 

the EPA with only 45 days to review 

proposed title V permits, followed by a 

60-day period for the public to petition 

the EPA to object, followed by a 60-day 

period for the EPA to rule on a petition 

to object. 42 U.S.C. 7661d(b)(1)–(2). 

These brief title V review periods are 

inconsistent with an in-depth and 

searching review of potentially every 

source-specific preconstruction 

permitting decision that has been made 

by the permitting authority. By contrast, 

available title I review mechanisms— 

state court appeals and enforcement 

actions—are not subject to the same 

time constraints and allow more time 

for development and consideration of 

NSR permitting decisions. 

In addition to time constraints, the 

title V permitting and petition processes 

involve fewer opportunities to develop 

the factual record necessary for a 

complete review of complex NSR 

permitting issues. For example, by the 

time the EPA receives a title V petition, 

the EPA’s review is generally limited to 

the record developed by the permitting 

authority up to that point. See 40 CFR 

70.13. By contrast, some state permit 

appeal and enforcement processes 

provide more in-depth oversight than 

title V could afford. Some states have 

administrative appeal processes that 

enable additional factual development 

before a final decision is reached on the 

permit. In addition, ‘‘unlike the 

permitting process, the enforcement 

process allows for discovery, hearings, 

cross-examination of witnesses, and 

expert testimony,’’ all of which aid the 

fact-finder in deciding whether major or 

minor source preconstruction 

requirements apply to a facility, or 

whether such requirements were 

correctly established. Citizens Against 

Ruining the Envt. v. EPA, 535 F.3d 670, 

678 (7th Cir. 2008). 

Moreover, once a title V petition is 

filed, there are no formal opportunities 

for other affected parties, such as the 

permitted source or the state permitting 

authority, to directly participate in the 

review process; their opportunity to 

develop their position occurs earlier in 

the permitting process. See 85 FR 6431, 

6442 (February 5, 2020). These other 

affected stakeholders have more 

procedural safeguards in state appeal 

processes and enforcement actions than 

in the title V petition process. For 

example, they may be parties to the 

action and appear before neutral 

arbiters, and have the opportunity to 

contest points raised by public 

challengers through briefs or other 

filings. Overall, title V oversight 

processes contain fewer mechanisms 

than title I oversight processes to fully 

consider and resolve complex NSR 

issues.142

Title V’s limited effectiveness in 

addressing NSR issues is compounded 

by the fact that title V permits must be 

renewed every 5 years. This fact, along 

with the EPA’s longstanding position 

that all aspects of a title V permit are 

subject to review during renewal permit 

proceedings,143 gives rise to the 

possibility that, in the absence of the 

EPA’s current (and proposed) approach, 

the public will seek to use title V 

oversight tools to review long-past NSR 

permit decisions. For example, in the 

2016 PacifiCorp-Hunter I petition that 

precipitated the EPA’s current 

interpretation, public interest groups 

challenged an NSR applicability 

decision made nearly 20 years prior. 

Given state and federal record retention 

schedules, staff turnover at state 

permitting authorities, and similar 

practical constraints associated with the 

passage of time, it may simply be 

impossible in a title V permitting action 

for a state to recreate a complete, 

defensible administrative record to 

support complex, substantive NSR 

permitting decisions, particularly those 

made long ago. Instead of pursuing 

challenges to NSR permitting decisions 

when a state incorporates a 

preconstruction permit into a title V 

permit, or during subsequent title V 

renewals, interested parties can obtain 

more direct and timely relief through 

state permit appeals and enforcement 

actions at the tile a title I permit is 

issued. 

Some of the constraints on the EPA’s 

and state’s ability to address NSR issues 

through title V may be mitigated by the 

fact that Congress placed the burden on 

petitioners to demonstrate to the EPA’s 

satisfaction that a title V permit does not 

satisfy the CAA. In other words, in the 

situations where NSR issues are 

properly within the scope of the EPA’s 

title V review, the EPA is not required 

to undertake an exhaustive independent 

review of a state’s NSR decisions. 

Instead, petitioners are required to 

provide sufficient evidence to EPA to 

demonstrate that the state’s NSR 

permitting decisions did not comply 

with its SIP-approved regulations or that 

the state’s exercise of discretion under 

such regulations was unreasonable or 

arbitrary.144 Although this 

demonstration requirement reduces 

some of the EPA’s resource burdens, it 

places these burdens on the public, who 

are subject to similarly tight timelines 

and the other procedural limitations 

discussed in the preceding paragraphs. 

As a result of these constraints, 

combined with the complexity of NSR 

permitting decisions, it has historically 

been relatively uncommon for 

petitioners to successfully demonstrate 

that an NSR-related deficiency warrants 

the EPA’s objection to a title V permit. 

As discussed throughout this preamble, 

the EPA believes the public would be 

better served to develop any challenges 

to NSR permitting decisions using title 

I avenues. 

Title V mechanisms are poorly suited 

not only for considering NSR-related 

issues, but also for resolving NSRrelated issues. The relief that the EPA 

can provide through title V to correct an 

NSR deficiency is limited and indirect. 

When the EPA objects to a title V permit 

on the grounds that NSR requirements 

were not properly established by a state, 

such objection does not directly 

invalidate an NSR permit or stop the 

initial construction or operation of a 

particular source authorized by an NSR 

permit. This is true not only when the 

NSR permit was issued long ago and 

construction has already been 

completed,145 but also when the NSR 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
1182 Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 

preconstruction permitting requirements to apply 

for a title V permit within 1 year after beginning 

operation (well after beginning and completing 

construction), in most cases. 40 CFR 70.5(a)(1)(ii); 

71.5(a)(1)(ii). The CAA similarly allows sources to 

apply for a title V permit up to 12 months after 

becoming subject to title V. 42 U.S.C. 7661b(c). This 

shows that Congress did not intend for the title V 

permitting process to be used to prevent the 

construction of a source authorized under title I. 

146The EPA could also assume responsibility to 

issue title V permits within a jurisdiction after 

determining, for example, that the state failed to 

properly administer and enforce its title V program. 

See 42 U.S.C. 7661a(i)(4); 40 CFR 70.10(b)(4), (c), 

71.4(c). 

147To directly mandate changes to an NSR permit 

issued by a state under an EPA-approved SIP, the 

EPA would need to pursue title I remedies. For 

example, a court order following a state court 

appeal, or an enforcement action, could directly 

mandate that the state permitting authority revise 

specific NSR permit terms or issue a different type 

of NSR permit. Alternatively, if the EPA wanted to 

directly issue an NSR permit to a source that was 

previously subject to a state permitting authority’s 

jurisdiction, the EPA would first have to issue a 

‘‘SIP Call’’ under CAA section 110(k) and ultimately 

impose a FIP, after which the EPA would retake the 

legal authority to issue NSR permits. 

148Similarly, the EPA expects that permittees will 

have an incentive to request that state permitting 

authorities provide such opportunities for the 

public to participate in the title I permitting 

process, so as to avoid the potential that title I 

permitting decisions will be subsequently 

overturned using the EPA’s title V review 

authorities. 

149Of course, as explained in section IV.B.5.a. of 

this preamble, where the public is denied 

meaningful opportunities to participate in title I 

permitting decisions, title V will serve as a backstop 

to ensure that the public has an opportunity to 

ensure that a source’s title V permit assures 

compliance with the relevant NSR-related 

requirements. 

permit was issued more recently and 

construction has not yet begun. An EPA 

objection similarly cannot directly 

require the state to amend an NSR 

permit. Instead, the EPA’s authority to 

object to a title V permit reaches only 

the terms of the title V permit itself. For 

example, the EPA could direct a state to 

include a compliance schedule in the 

title V permit directing the source to 

apply for a new NSR permit. Resolving 

such an objection would generally 

require some type of additional, and 

legally distinct, NSR permitting action 

by the state permitting authority. If the 

state ultimately failed to update the title 

V permit in a manner sufficient to 

resolve the EPA’s objection, then the 

EPA could then assume responsibility to 

issue the title V permit. 42 U.S.C. 

7661d(c).146 But even so, the EPA would 

remain unable to directly change the 

terms of the underlying NSR permit, or 

to issue a new NSR permit to the source, 

without first pursuing title I-based 

oversight authorities.147 Thus, no matter 

what the EPA might do with respect to 

a title V permit, the EPA lacks title Vbased authority to directly intercede and 

fix issues in NSR permits. Thus, even in 

cases where the EPA entertained NSRrelated claims in title V petitions, the 

resulting orders rarely resulted in a 

change to the NSR permit or additional 

NSR requirements. 

Given that the title V oversight tools 

provide an ill-suited forum for 

considering and resolving the complex 

problems associated with NSR 

permitting, it makes sense that title V 

permitting authorities and the EPA 

should only consider whether the terms 

and conditions of an NSR permit have 

been properly included in a title V 

operating permit, and whether there is 

sufficient monitoring, recordkeeping, 

and reporting to assure compliance with 

those terms and conditions. It is more 

efficient for state permitting authorities, 

the public, and the EPA to focus on 

these core title V issues—which are 

more clearly redressable through title V 

oversight tools—when preparing title V 

permits, challenging title V permits, and 

reviewing title V permits. 

c. Incentivizing Title I Avenues of 

Review 

The EPA’s current (and proposed) 

approach not only recognizes the 

limitations on using title V to review 

NSR issues, but also emphasizes the 

importance of public involvement in the 

title I permitting process to address 

these issues. This approach encourages 

the public to engage contemporaneously 

at the state level to appeal 

preconstruction permitting decisions 

that they believe to be incorrect. 

As explained in the preceding 

subsection, the title I permitting process 

(and other oversight opportunities 

under titles I and III of the CAA) is 

better suited to addressing public 

concerns than the title V permitting 

process. From a policy standpoint, the 

EPA’s view that the title V permitting 

process should not be used to 

reconsider final NSR permitting 

decisions relies heavily on the 

opportunity for the public to participate 

in the title I permitting process. The 

proposed revisions to the EPA’s 

regulations include criteria relevant to 

public participation in the title I 

permitting process. Provided these 

criteria are satisfied in the issuance of 

a title I permit, NSR-related decisions 

associated with that permit would not 

be subject to further review through title 

V. The EPA expects that codifying this 

existing framework will create a strong 

incentive for state permitting authorities 

to ensure meaningful public access to 

NSR permitting actions, particularly for 

minor NSR permitting actions that may 

have limited public participation 

opportunities.148 This rulemaking is 

expected to complement related ongoing 

efforts by the EPA to promote increased 

implementation of existing 

requirements related to public 

participation in minor NSR permit 

actions. 

This approach not only creates an 

incentive for states to offer more 

opportunities for public access in NSR 

permitting, but also for the public to use 

such processes. During the time period 

in which the EPA nominally considered 

the merits of NSR issues through the 

title V permitting and petition process, 

the EPA observed that many petitioners 

would only raise their NSR-related 

concerns through the title V process and 

would not seek relief through title I 

mechanisms. By doing this, citizens 

bypassed an available public 

participation opportunity and denied 

the state an opportunity to hear and 

remedy public concerns 

contemporaneous with the state action. 

Moreover, given the inherent difficulty 

in demonstrating NSR permit flaws and 

the lack of effective relief available 

through the title V permitting process, 

use of title V (rather than NSR appeal 

processes) may have ultimately been 

less effective at fostering sound NSR 

permitting decisions. The EPA believes 

it is better policy to encourage the 

public to use title I venues to address 

NSR-related concerns at the time these 

permits are issued, and to reserve the 

title V permitting process for issues that 

may be more effectively addressed 

through title V authorities (e.g., 

monitoring).149

d. Respecting Finality and Fostering 

Certainty in Title I Permitting Decisions 

Declining to review title I permitting 

decisions in title V review avoids 

duplication and inefficiency, respects 

the finality of NSR permitting decisions 

that are subject to public notice and the 

opportunity for comment and judicial 

review, and acknowledges regulated 

entities’ need for certainty when 

investing in the construction and 

modification of sources. 

The availability of public notice, the 

opportunity for comment, and the 

opportunity for judicial review of 

underlying NSR permit actions weigh 

heavily against the need to repeat all 

these procedures through title V 

permitting. This allows an unnecessary 

and inefficient ‘‘second bite at the 

apple,’’ along with a potentially 

unlimited number of additional ‘‘bites’’ 

each time a title V permit is reviewed. 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 1183 

150See section IV.B.4. of this preamble for 

additional information about the timing of NSR and 

title V permit actions. 

151This approach is similar to prior EPA 

statements that the EPA would not review NSR 

decisions made long ago. See supra notes 51 and 

56 and accompanying text. 

The EPA’s current (and proposed) 

approach respects the finality of a 

permitting authority’s title I permitting 

decisions, provided such decisions were 

made with the requisite level of 

formality, consideration, and public 

process (i.e., issued under title I 

authorities following public notice and 

the opportunity for comment and 

judicial review). By contrast, allowing 

NSR permitting decisions to be 

collaterally attacked using the title V 

permitting process would significantly 

undermine the finality of state title I 

permitting decisions. This would 

decrease the relative importance of 

states in the cooperative federalist 

system established by Congress. 

The EPA believes that the best policy 

(and best reading of the Act as a whole, 

as described in section IV.E.3. of this 

preamble) is that the public should 

directly participate in state 

preconstruction permitting decisions 

and, if necessary, seek review in state 

court immediately thereafter. This is a 

more direct and timely way to identify 

and correct errors in preconstruction 

permits. It provides for such review 

before sources reasonably begin relying 

on those permits to invest substantial 

resources in a facility. Thus, the EPA’s 

current (and proposed) approach fosters 

certainty and avoids upsetting settled 

expectations and reliance interests of 

sources that have obtained a legally 

enforceable preconstruction permit 

under title I. By contrast, under the 

EPA’s former approach, stakeholders 

would always face the possibility that 

the EPA could identify errors with the 

state preconstruction permitting 

decisions during title V permit issuance 

or renewal. In such a circumstance, 

discovery of errors could come years 

after the fact, long after a source is 

constructed and operating, either when 

a title V permit first incorporates the 

relevant NSR requirements, or decades 

after the fact, when the title V permits 

is subsequently renewed.150 This would 

increase uncertainty for the regulated 

community. It would also increase the 

burden on EPA, state agencies, and the 

courts to consider such long-distant 

issues. As summarized by the Fifth 

Circuit in examining EPA’s current 

approach: 

EPA’s position also respects the finality of 

the preconstruction permitting decision. The 

agency reasoned that it would be inefficient 

to allow review via the Title V permitting 

process even after the preconstruction 

permits had been subject to public notice and 

comment and an opportunity for judicial 

review. And those avenues provide more 

time for development and consideration of 

the potential issues. We are persuaded that 

EPA’s construction of Title V respects the 

finality of state preconstruction permitting 

decisions, which is consistent with the Act’s 

cooperative federalism. Petitioners’ contrary 

view of Title V would allow a federal agency 

to upset states’ permitting decisions with no 

clear mandate from Congress to do so. 

Env’t Integrity Project, 960 F.3d at 253 

(internal citations and quotations 

omitted). 

F. Alternative Approaches 

The EPA believes that the agency’s 

existing interpretations and policies 

reflect the best approach from both a 

legal and policy standpoint, for the 

reasons discussed previously. Thus, the 

EPA is proposing to codify its existing 

approach. However, the EPA also 

solicits comment on the following 

alternative approaches that would 

involve using title V permits to address 

substantive NSR issues in additional, 

targeted situations. Each of the 

alternatives presented features some 

level of intuitive appeal but also suffers 

from legal and/or policy drawbacks. 

Thus, the EPA specifically requests 

comments that would provide further 

legal and/or policy support for applying 

these alternatives as opposed to the 

EPA’s preferred approach. The EPA also 

specifically requests comments on how 

such alternatives could be reflected in 

the regulatory text. 

As discussed in the following 

subsections, the alternatives that the 

EPA is considering include: (i) using 

title V to review contemporaneous or 

recent NSR permitting decisions; (ii) 

using title V to review issues related to 

major NSR applicability, and (iii) using 

title V to review contemporaneous or 

recent NSR permitting decisions related 

to major NSR applicability. 

1. Using Title V To Review 

Contemporaneous or Recent NSR 

Permitting Decisions 

Under the first alternative approach, 

the title V permitting process could be 

used to review contemporaneous or 

recent NSR permitting decisions, but 

not older NSR permitting decisions.151

Within this alternative, there are 

multiple potential variations based on 

the time frame chosen to differentiate 

between NSR decisions that would, and 

would not, be reviewed. For example, 

the narrowest version of this alternative 

would involve using title V to review 

NSR-related decisions that are made 

contemporaneously with the issuance of 

a title V permit. Broader versions of this 

alternative would involve reviewing 

NSR permitting decisions finalized 

within a certain period of time before a 

title V permit is issued. 

This alternative approach has some 

appeal because it avoids some of the 

practical challenges that motivated, and 

which support, the EPA’s current 

approach. For example, this alternative 

would avoid problems associated with 

the EPA and states being expected to 

confront long-past NSR decisions 

without a fully accessible record. This 

alternative is also less likely to upset 

settled expectations, particularly if 

review is restricted to 

contemporaneously issued NSR and 

title V permits. However, this 

alternative would not address other 

important policy considerations to the 

same extent as the EPA’s proposed 

approach. For example, this alternative 

would not address the limited scope 

and timing available for reviewing 

complex NSR issues through title V. 

Additionally, this alternative would 

give rise to its own set of problems. For 

example, reviewing NSR decisions 

based on a defined timing element 

would involve a difficult line-drawing 

exercise. Would it be appropriate to 

review only NSR decisions finalized at 

the exact same time as a title V permit 

issuance, or NSR decisions finalized 

shortly before a title V permit is 

finalized, or within the same year, or 

within five or six years, or some other 

period of time? The EPA solicits 

comments on how to define this timing 

element under this alternative. 

Moreover, to the extent this 

alternative would be applied narrowly 

to allow title V review of only 

contemporaneous NSR permitting 

decisions, this approach could 

disincentivize states from taking 

advantage of streamlined permit 

issuance procedures (which many states 

currently employ), such as the 

concurrent permit issuance process 

described in section IV.B.4. of this 

preamble. Disincentivizing streamlined 

permitting could increase 

administrative burdens and costs for 

states and could lead to unnecessary 

delays in title V permit issuance, 

counter to the CAA’s directive to 

develop ‘‘[a]dequate, streamlined, and 

reasonable procedures for 

expeditiously’’ issuing permits. 42 

U.S.C 7661a(b)(6). 

In addition to these policy 

considerations, it is not clear what legal 

basis would support an alternative 

approach based exclusively on the 

timing of NSR and title V permit 

issuance. As discussed extensively 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
1184 Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 

152This line of reasoning, based on certain 

statements made when the EPA promulgated the 

part 70 rules, featured in the Tenth Circuit’s 

interpretation of the current regulatory definition of 

‘‘applicable requirement.’’ See Sierra Club v. EPA, 

964 F.3d at 893–895. 

153 In the Matter of Owens-Brockway Glass 

Container Inc., Order on Petition No. X–2020–2 at 

21–28 (May 10, 2021) (Owens-Brockway Order); In 

the Matter of Hazlehurst Wood Pellets, LLC, Order 

on Petition No. IV–2020–5 at 7–14 (Dec. 31, 2020) 

(Hazlehurst Order). 

earlier in this preamble, the relationship 

between NSR and title V permits is 

closely tied to the concept of 

‘‘applicable requirements’’ that are 

established under other CAA programs. 

This concept has generally been timeneutral, such that requirements that are 

properly established under another EPA 

program—regardless of when they are 

established—define the applicable 

requirements that must be included in 

a title V permit. To the extent the EPA 

has addressed timing considerations, is 

has been to ensure that the definition of 

‘‘applicable requirement’’ is 

overinclusive with respect to 

requirements that have already been 

promulgated but are not yet effective. 

See 40 CFR 70.2 (definition of 

‘‘applicable requirement’’). This 

alternative approach would require the 

opposite position, excluding recent NSR 

permitting decisions from establishing 

applicable requirements just because 

they were undertaken more recently. 

That position would conflict with the 

EPA’s treatment of applicable 

requirements under all other types of 

CAA programs. It is not clear to the EPA 

that such an approach is compatible 

with the structure and purpose of the 

title V program. 

Further information explaining why 

the EPA does not prefer this alternative 

is included in section IV.B.4. of this 

preamble (which explains why the 

EPA’s approach applies the same 

regardless of when an NSR permit was 

issued). 

2. Using Title V To Review Issues 

Related to Major NSR Applicability 

The second alternative approach 

under consideration would involve 

using the title V permitting process to 

review issues related to major NSR 

applicability (i.e., whether a source 

should have received a major NSR 

permit instead of a minor NSR permit). 

However, the EPA would not review 

challenges to other types of substantive 

NSR issues (e.g., BACT determinations 

or the results of modeling). This 

alternative would apply the same 

regardless of the timing of NSR permit 

issuance and title V permit issuance. 

This alternative approach would 

provide some of the same policy 

benefits as the EPA’s proposed 

approach, in that it would avoid using 

title V to reevaluate the content of NSR 

permits (e.g., whether permit limits 

correctly reflect BACT). However, given 

that major NSR applicability questions 

are among the most complicated NSRrelated issues to address, this approach 

would do little to resolve the resourcerelated and practical problems that 

partly motivated the EPA’s current (and 

proposed) approach. For the reasons 

discussed in section IV.E.4.b. of this 

preamble, the EPA does not consider the 

title V permitting process well-suited to 

resolving these complex questions 

involving major NSR applicability. 

One might argue that this alternative 

approach is consistent with the view 

that the title V process can be used to 

determine which requirements are 

applicable to a source, even if it should 

not be used to second-guess the content 

of such requirements.152 However, 

where an NSR applicability 

determination has already been made 

through the NSR process and a minor 

NSR permit is issued, any further action 

through title V related to major NSR 

applicability would likely require 

changes to emissions limits and other 

applicable requirements established 

through that NSR process. In other 

words, using title V to revisit NSR 

applicability questions would 

inherently upset not only the NSR 

applicability decisions, but also NSR 

permit content decisions. The EPA does 

not view this result as consistent with 

the key function of title V. 

Further information explaining why 

the EPA does not prefer this alternative 

is included in section IV.B.3. of this 

preamble (which contains the EPA’s 

justification for applying its approach 

uniformly regardless of the type of 

substantive NSR requirements at issue) 

and section IV.E.4.a. of this preamble 

(which explains why the EPA’s 

proposed approach is more consistent 

wih how applicability questions are 

treated with respect to other CAA 

programs). 

3. Using Title V To Review 

Contemporaneous or Recent NSR 

Permitting Decisions Related to Major 

NSR Applicability 

The third and final alternative 

approach under consideration would 

involve using title V to review 

contemporaneous or recent NSR 

permitting decisions related to major 

NSR applicability, but not any older 

NSR decisions or any NSR decisions 

related to NSR permit content. This 

approach is a combination of the 

preceding two alternatives, and is 

consequently narrower than either two 

alternatives—that is, it would involve 

the use of title V to review NSR issues 

in fewer situations. See the preceding 

subsections for considerations relevant 

to this alternative. 

V. The General Duty Clause Concerning 

the Prevention of Accidental Releases 

of Hazardous Substances 

A. Background and Summary of 

Proposed Action 

On two occasions in recent years, the 

EPA received title V petitions requesting 

that individual title V permits include 

requirements designed to assure 

compliance with the ‘‘General Duty 

Clause’’ of CAA 112(r)(1), which 

concerns the prevention of accidental 

releases of hazardous substances. These 

petitions were premised upon the 

suggestion that the General Duty Clause 

is an ‘‘applicable requirement’’ for title 

V purposes. However, as the EPA 

explained in the Hazlehurst and OwensBrockway Orders denying both of these 

petitions, the General Duty Clause is not 

an applicable requirement for title V.153

The basis for this position is fully 

explained in the EPA’s Hazlehurst and 

Owens-Brockway Orders. However, for 

the sake of transparency, section V.B. of 

this preamble restates salient points 

from those orders. 

Moreover, although the current 

definition of ‘‘applicable requirement’’ 

in the EPA’s part 70 and part 71 

regulations may reasonably be read to 

exclude requirements of the General 

Duty Clause, the EPA intends to provide 

further clarity to the public by making 

this exclusion explicit in the EPA’s 

regulations. 

This proposed change to the rules is 

not expected to have any impacts on 

state permitting authorities, regulated 

entities, the public, or other 

stakeholders, as it simply clarifies an 

element of the title V program that has 

been understood and implemented in 

the same way since the inception of the 

title V program in the early 1990s. 

This proposed change is distinct and 

severable from the proposed changes 

related to the interface between title V 

permits and NSR permits, discussed in 

section IV. of this preamble. 

B. Rationale for Proposed Action 

1. Statutory Provisions 

The General Duty Clause provides: 

The owners and operators of stationary 

sources producing, processing, handling or 

storing such substances have a general duty 

in the same manner and to the same extent 

as section 654 of title 29 to identify hazards 

which may result from such releases using 

appropriate hazard assessment techniques, to 

design and maintain a safe facility taking 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 1185 

154This is because any person may, under CAA 

section 304(a)(1), bring a suit ‘‘against any person 

. . . who is alleged to have violated . . . or be in 

violation of (A) an emission standard or limitation 

under this chapter . . . .’’ In turn, ‘‘emission 

standard or limitation’’ is defined to include, inter 

alia, ‘‘any other standard, limitation, or schedule 

established under any permit issued pursuant to 

subchapter V of this chapter . . . .’’ 42 U.S.C. 

7604(f)(4); see also 40 CFR 70.6(b)(1); see United 

States v. Gonzales, 520 U.S. 1, 5 (1997). As 

discussed later, the EPA’s regulations contain a 

limited exception to this principle, which is not 

applicable to the General Duty Clause. 

155The specific prohibition on enforcement of the 

General Duty Clause by citizen suit must govern 

over the general enforceability of title V permits. 

See Nitro-Lift Technologies L.L.C. v. Howard, 568 

U.S. 17, 21 (2012). 

156Because CAA section 304 is the only federal 

authority through which citizens and state or local 

air agencies could enforce this type of CAA 

requirement, neither citizens nor state and local air 

agencies may enforce the General Duty Clause 

under the CAA. Additionally, some states are 

prohibited by state law from having general duty 

authorities. 58 FR 62262, 62278 (Nov. 26, 1993). 

157See Maracich v. Spears, 570 U.S. 48, 65 (2013) 

(‘‘It is necessary and required that an interpretation 

of a phrase of uncertain reach is not confined to a 

single sentence when the text of the whole statute 

gives instruction as to its meaning.’’); see also 

Erlenbaugh v. United States, 409 U.S. 239, 243–45 

(1972) (‘‘[In pari materia] is but a logical extension 

of the principle that individual sections of a single 

statute should be construed together . . . . [T]he 

rule’s application certainly makes the most sense 

when the statutes were enacted by the same 

legislative body at the same time.’’); United States 

v. Ron Pair Enterprises, 489 U.S. 235, 242 (1989) 

(‘‘The plain meaning of legislation should be 

conclusive, except in the rare cases in which the 

literal application of a statute will produce a result 

demonstrably at odds with the intentions of its 

drafters.’’ (internal quotation omitted)). 

158This principle is subject to one exception: 

certain terms in a title V permit that are not based 

on the CAA may be labeled as ‘‘state-only’’ 

requirements that are not federally enforceable or 

enforceable by citizens through section 304. 40 CFR 

70.6(b)(2). The General Duty Clause, which is 

contained within the CAA, is not eligible for this 

treatment. Beyond this limited exception, neither 

the statute nor regulations contemplate other means 

by which the enforceability of title V permit terms 

could be restricted in a manner consistent with the 

limitations in the General Duty Clause discussed 

earlier. 

159See Hazlehurst Order at 9–10; OwensBrockway Order at 23–24. 

160The EPA understands that most, and perhaps 

all, permitting authorities implementing part 70 

programs have historically followed the same view. 

such steps as are necessary to prevent 

releases, and to minimize the consequences 

of accidental releases which do occur. For 

purposes of this paragraph, the provisions of 

section 7604 of this title shall not be 

available to any person or otherwise be 

construed to be applicable to this paragraph. 

42 U.S.C. 7412(r)(1) (emphasis added). 

The last sentence contains a key 

limitation of the General Duty Clause: it 

means that citizen suits under CAA 

section 304 shall not be available to 

enforce the requirements of the General 

Duty Clause; instead, this clause may 

only be enforced by the EPA under CAA 

section 113. 

This enforcement prohibition also 

effectively restricts the implementation 

of the General Duty Clause requirements 

through title V permitting. The CAA 

provides that all standards and 

limitations in title V permits are 

enforceable by citizens under section 

304.154 Thus, if the requirements of the 

General Duty Clause were included in 

title V permits, they would ostensibly be 

enforceable through enforcement of the 

title V permit itself. However, this 

would be in direct conflict with the 

unambiguous statutory prohibition on 

citizen enforcement of the General Duty 

Clause under section 304.155 To avoid 

this conflict, the General Duty Clause 

must not be considered an ‘‘applicable 

requirement’’ that is implemented 

through title V permitting. 

Other text within the General Duty 

Clause further evinces congressional 

intent that the General Duty Clause 

would not be implemented through 

permitting. The statute indicates that 

the CAA section 112(r)(1) general duty 

shall be ‘‘in the same manner and to the 

same extent as section 654 of title 29’’— 

that is, the general duty clause within 

the Occupational Safety and Health Act 

(OSH Act). The OSH Act provision, 

enacted in 1970, is not implemented 

through site-specific permits, nor are 

citizen suits authorized to enforce it. 

See generally 29 U.S.C. 651–678. If 

Congress had intended the CAA General 

Duty clause to be implemented in a 

fundamentally different manner than 

the OSH Act provision on which it was 

explicitly modeled—e.g., through a 

permitting program that could be 

enforced by citizens—it could have 

specifically said so. However, instead, 

Congress precluded citizen enforcement 

under the CAA General Duty Clause, 

and nowhere did Congress imply that it 

would be implemented through 

permitting. 

Additionally, the CAA requires that 

states have the authority to enforce title 

V permits in order to receive EPA 

approval of their permitting programs. 

42 U.S.C. 7661a(b)(5); see also 40 CFR 

70.4(b)(3). However, the CAA General 

Duty Clause is enforceable only by the 

federal government. The EPA has not 

delegated authority to implement or 

enforce the General Duty Clause to state 

or local air agencies.156 Were the 

requirements of the General Duty Clause 

considered ‘‘applicable requirements’’ 

to be included within individual title V 

permits, states would be unable to 

enforce these new permit provisions, 

which would contradict CAA section 

502(b)(5). This would mean that all state 

and local title V programs would be 

fundamentally flawed—an absurd result 

Congress could not have intended. 

Notably, each of the relevant statutory 

provisions discussed earlier—the 

General Duty Clause of section 112(r)(1), 

the relevant portion of section 304 

authorizing citizen suits to enforce title 

V permit terms, and the entirety of title 

V—were promulgated in the same 

legislative package: the 1990 CAA 

Amendments. Accordingly, the 

statutory conflict between these 

provisions is best understood as 

reflecting an intentional choice by 

Congress to fundamentally distinguish 

the General Duty Clause in section 

112(r)(1) from other CAA requirements 

that would be implemented through the 

title V permitting program.157

2. Regulatory Provisions 

Following the statutory text, the 

EPA’s regulations provide: ‘‘All terms 

and conditions in a part 70 permit . . . 

are enforceable by the Administrator 

and citizens under the Act.’’ 40 CFR 

70.6(b)(1).158 Additionally, in order to 

be approvable by the EPA, state 

programs under part 70 must 

demonstrate authority to enforce 

permits. 40 CFR 70.4(b)(3)(vii). Neither 

of these regulatory requirements are 

compatible with the view that the 

General Duty Clause—which is 

enforceable only by the EPA—should be 

included in title V permits. 

The EPA must read its regulations in 

a manner consistent with the statute. As 

explained in the Hazlehurst and OwensBrockway petition orders, the existing 

definition of ‘‘applicable requirement’’ 

can reasonably be read to exclude the 

General Duty Clause of CAA section 

112(r)(1).159 Nonetheless, in order to 

provide maximum clarity to the public, 

the EPA is proposing to revise the 

definition of ‘‘applicable requirement’’ 

in 40 CFR 70.1 and 71.2 to make this 

more explicit. 

3. EPA Guidance and Implementation 

Excluding the General Duty Clause 

from the regulatory definition of 

‘‘applicable requirement’’ is consistent 

with how the EPA has described and 

implemented both the title V and 112(r) 

programs since their inception in the 

early 1990s.160 In various rulemaking 

actions, the EPA has consistently 

indicated that the only applicable 

requirements related to 112(r) that need 

to be satisfied through title V are those 

related to section 112(r)(7) risk 

management plans under 40 CFR part 

68. See, e.g., 57 FR at 32275–76; 60 FR 

13526, 13526, 13535–36 (Mar. 13, 1995); 

61 FR 31668, 31688–89 (June 20, 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
1186 Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 

161This proposed rule does not affect the risk 

management plan program under section 112(r)(7) 

or part 68 in any way. However, the limited 

intersection between section 112(r)(7) risk 

management plans and title V permits provides 

context for the EPA’s position on the section 

112(r)(1) General Duty Clause. The EPA has, 

through rulemaking, limited the extent to which 

even the 112(r)(7)-related ‘‘applicable 

requirements’’ would be implemented through title 

V. Specifically, when the EPA promulgated the 

final part 68 risk management plan rules in 1996, 

the agency determined that ‘‘generic terms in [title 

V] permits and certain minimal oversight activities’’ 

would assure compliance with risk management 

plan requirements. 61 FR at 31689; see also 57 FR 

at 32275 (‘‘The EPA recognizes, however, that an 

RMP is not in any sense a ‘permit’ to release 

substances addressed therein, and that section 

112(r) was not intended to be primarily 

implemented or enforced through title V.’’ (citing 

42 U.S.C. 7412(r)(7)(F)). For sources subject to both 

part 68 and title V, these permit content and state 

oversight requirements are codified at 40 CFR 

68.215. For additional information concerning the 

limited intersection between risk management 

plans and title V permits, see In the Matter of 

Newark Bay, Order on Petition No. II–2019–4 at 9– 

16 (Aug. 16, 2019). Requiring title V permits to 

include permit terms related to the General Duty 

Clause that are even more specific than those the 

EPA has established for risk management plans 

would go well beyond the EPA’s long-held view of 

the scope of section 112(r)-related ‘‘applicable 

requirements’’ that would be implemented through 

title V. 

162 In the Matter of Shintech Inc., PVC Plant, 

Order on Petition, 12 (Sept. 10, 1997). 

163Specifically, the EPA emphasized that 

‘‘compliance with the requirements of part 68 does 

not relieve Shintech of its legal obligation to meet 

the general duty requirements of section 112(r)(1) 

of the Act . . . . Section 112(r)(1) remains a selfimplementing requirement of the Act, and EPA 

expects and requires all covered sources to comply 

with the general duty provisions of 112(r)(1).’’ 

Shintech I Order at 12 n.9. The EPA also explained 

that it would be improper to shield a source from 

liability under the General Duty Clause using a title 

V permit shield. Id. 

164See Pencor-Masada I Order at 31–32 n.38. 

165See, e.g., Memorandum, Title V Program 

Approval Criteria for Section 112 Activities (April 

13, 1993), available at https://www.epa.gov/sites/ 

production/files/2015-08/documents/t5-112.pdf; 

Memorandum, Relationship between the Part 70 

Operating Permit Program and Section 112(r) (June 

24, 1994), available at https://www.epa.gov/sites/ 

production/files/2015-08/documents/opp112r.pdf. 

166 Guidance for Implementation of the General 

Duty Clause, Clean Air Act Section 112(r)(1), EPA 

550–B00–002 (May 2000), available at https://

www.epa.gov/sites/production/files/documents/ 

gendutyclause-rpt.pdf. 

167No statutory or regulatory mechanism 

currently exists for the EPA to establish General 

Duty Clause requirements for all title V sources 

nationwide. Even if it did, implementation of any 

such mechanism this would present an even greater 

resource issue for the EPA, and would run against 

Congress’s intent that the title V program is to be 

primarily implemented by the states, not the EPA. 

See 42 U.S.C. 7661a; see, e.g., Env’t Integrity Project, 

969 F.3d at 536, 545. 

168The EPA, like Congress, does not ‘‘hide 

elephants in mouseholes.’’ See Whitman v. Am. 

Trucking Ass’ns, 531 U.S. 457, 468 (2001). 

169Such outcomes would be contrary to 

congressional intent for the title V program to be 

primarily administered by states. 

170The EPA has also described the General Duty 

Clause as a ‘‘self-enabling’’ or ‘‘self-implementing’’ 

requirement. See Letter from Mathy Stanislaus, 

Assistant Administrator, EPA Office of Solid Waste 

and Emergency Response, to Hon. Mike Pompeo, 

U.S. House of Representatives (Aug. 1, 2013)) 

(Stanislaus-Pompeo Letter); Owens-Brockway Order 

at 27; Hazlehurst Order at 12; Pencor-Masada I 

Order at 32 n.38; Shintech I Order at 12 n.9. As 

discussed in section III.E. of this preamble, the EPA 

has also used the term ‘‘self-implementing’’ to refer 

to certain types of requirements in other CAA 

programs, including NSPS and NESHAP standards. 

The intent of this phrase is slightly different in the 

context of the General Duty Clause than in the 

context of NSPS and NESHAP standards. The 

requirements of the General Duty Clause flow 

directly from the statute and are implemented in 

the absence of implementing regulations. By 

1996).161 The EPA has made similar 

determinations in early title V petition 

orders. For example, in the 1997 

Shintech I Order, the EPA concluded 

that ‘‘compliance with the provisions of 

40 CFR 68.215 . . . is sufficient to 

satisfy the legal obligations of section 

112(r) for purposes of part 70.’’ 162 The 

EPA therefore specifically rejected the 

petitioners’ request for additional 

permit terms related to section 112(r)(l), 

while noting the independent 

enforceability of the General Duty 

Clause.163 These principles hold true 

regardless of whether a source is subject 

to risk management plan requirements 

under part 68. For example, in the 2001 

Pencor-Masada I Order, the EPA 

applied similar principles to a source 

that was not subject to part 68. There, 

the EPA reiterated that a source’s 

obligations under the General Duty 

Clause are unaffected by compliance 

with part 68 or the terms of a source’s 

title V permit.164 The EPA has made 

similar statements concerning title V 

and CAA section 112(r) in other 

guidance documents.165

Similar to the EPA’s title V guidance, 

the EPA’s longstanding guidance 

concerning the implementation of the 

General Duty Clause similarly suggests 

that the General Duty Clause is not to be 

implemented through title V. Notably, 

in the EPA’s comprehensive Guidance 

for Implementation of the General Duty 

Clause (‘‘GDC Guidance’’),166 the EPA 

details the mechanisms through which 

the General Duty Clause would be 

implemented and enforced, and never 

once mentions permitting as an 

available mechanism. 

4. Additional Policy Considerations 

If the EPA were to consider the 

General Duty Clause an applicable 

requirement with which title V permit 

must assure compliance, this would 

have significant programmatic impacts, 

upsetting the administration of both the 

title V and General Duty Clause 

programs nationwide. For example, The 

EPA expects that the majority of major 

sources subject to the title V program 

may, at some time or another, also have 

obligations under the General Duty 

Clause. If the General Duty Clause was 

considered an applicable requirement, 

thousands of title V permits nationwide 

would need to be reopened to include 

conditions necessary to identify and 

assure compliance with the clause. Such 

an enormous resource burden on the 

permitting authorities that implement 

the title V program would hardly make 

sense given that these same permitting 

authorities cannot enforce the General 

Duty Clause.167 This is clearly not an 

outcome that either Congress or the EPA 

envisioned when establishing these two 

programs.168

Other practical concerns—closely 

related to the legal issues discussed 

previously—weigh against 

implementing the General Duty Clause 

through title V. For example, how could 

a title V permit containing General Duty 

Clause requirements be structured in 

order to avoid the statutory constraints 

on enforcement discussed earlier? 

Neither the Act nor the EPA’s 

regulations provide that certain portions 

of the title V permit can be labeled 

‘‘enforceable only by the EPA.’’ To the 

contrary, all federally-enforceable 

permit terms must necessarily be 

enforceable by the state agencies issuing 

the permits as well as the public at 

large. See 42 U.S.C. 7604(a)(1), (f)(4), 

7661a(b)(5)(E), 7661c(c); 40 CFR 

70.4(b)(3)(vii), 70.6(b)(1). Additionally, 

if the General Duty Clause were 

considered an ‘‘applicable requirement’’ 

that states have no authority to enforce, 

the EPA could face pressure to issue 

notices of deficiency to all 117 state, 

local, and Tribal permitting authorities 

nationwide for their failure to enforce 

all aspects of the title V program. See 40 

CFR 70.10(b), (c)(1), Appx A. Moreover, 

the EPA could face pressure to take over 

the issuance of all title V permits, or to 

issue partial permits to nearly every title 

V source to cover these sources’ General 

Duty Clause obligations. See 40 CFR 

70.10(b)(2)(iii); see also 40 CFR part 71. 

These are clearly not reasonable 

propositions,169 but nonetheless ones 

that could inevitably follow if the EPA 

were to consider the General Duty 

Clause an ‘‘applicable requirement’’ for 

title V purposes. 

In addition to these untenable impacts 

to title V permitting, determining that 

the General Duty Clause must be 

included in title V permits would 

fundamentally alter the EPA’s 

implementation and enforcement of the 

General Duty Clause itself. The EPA has 

historically described the General Duty 

Clause as a ‘‘self-executing 

requirement.’’ 61 FR 31668, 31680 (June 

20, 1996).170 This means, quite simply, 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 1187 

contrast, emission standards like NSPS or NESHAP 

standards are generally ‘‘self-implementing’’ once 

regulations are promulgated. The similarity is that 

in both situations, the self-implementing 

requirements are enforceable regardless of whether 

they are reflected in a title V permit. 

171Were the General Duty Clause treated as a 

permit term, a source could argue it was shielded 

from its duty by the terms of the permit for hazards 

identified after the permit was issued. The potential 

for sources to request a title V permit shield to 

cover General Duty Clause obligations would 

exacerbate these concerns, notwithstanding that 

such a permit shield would not be appropriate, as 

the EPA has previously explained. See Shintech I 

Order at 12 n.9. 

172E.g., Stanislaus-Pompeo Letter. 

that the General Duty Clause is meant to 

be implemented and enforced 

independently as a direct requirement 

of the CAA, beyond the strictures of any 

set of regulations or the title V 

permitting program. 

Although the title V permitting 

program offers clear benefits for 

identifying and assuring compliance 

with other types of more typical 

emission standard-based requirements 

under regulations promulgated under 

the CAA, the title V program is a 

particularly poor fit for implementing 

the General Duty Clause. The General 

Duty Clause is, as its name suggests, a 

general duty. Identifying specific 

obligations within each source’s title V 

permit would conflict with the notion of 

a general duty. Moreover, determining 

whether an individual source has 

satisfied this general duty is highly 

circumstance-specific. The EPA 

interprets the General Duty Clause to 

generally require owners and operators 

to adhere to recognized industry 

practices and standards in addition to 

any applicable government regulations. 

GDC Guidance at 2, 11–12. However, 

there may be situations where 

circumstances make a particular 

industry standard or municipal code 

inapplicable, unsuitable, or insufficient 

for a given source, and there may be 

other ways to abate hazards than those 

listed in a particular industry standard 

or municipal code. Each source’s 

obligations are dependent on the 

detailed knowledge of each individual 

source. Even in the absence of an 

industry standard, a source’s knowledge 

of a potential hazard and a feasible 

means to abate it is relevant to its 

general duty under CAA section 

112(r)(1). See GDC Guidance at 12. 

Should a source learn of a hazard and 

a feasible means to abate it after its 

permit is written, the General Duty 

Clause would ordinarily hold the source 

responsible for its knowledge. Given 

that the factual circumstances and 

knowledge at the source, as well as any 

relevant industry guidelines, can change 

frequently, the source’s obligation under 

the General Duty Clause are necessarily 

fluid. If General Duty Clause obligations 

were to be included in title V permits 

as applicable requirements, the relevant 

permit terms would need to be 

constantly updated to accurately reflect 

a source’s obligations. Overall, 

identifying specific General Duty Clause 

requirements would not only curtail the 

flexibilities rightly available to a source, 

but it would also undermine the General 

Duty Clause by limiting the scope of a 

source’s potential obligations to those 

specific requirements contained in the 

permit.171 For these reasons, the EPA 

has rejected requests to define and 

restrict General Duty Clause obligations 

through rulemaking.172 It would be 

similarly inappropriate to define and 

restrict these obligations through title V 

permit terms. 

In summary, the CAA specifically 

prohibits the General Duty Clause from 

being enforced through the citizen suit 

provision in section 304 that is available 

for all standards and limitations 

included in title V permits. Therefore, 

the EPA must draft and interpret its 

regulations such that the General Duty 

Clause is not an applicable requirement 

for purposes of title V permitting. 

Although the current part 70 and 71 

regulations can be interpreted as 

consistent with this position, the EPA 

proposes to amend the regulations to 

make this more explicit. This change is 

consistent with the EPA’s 

implementation of both the title V and 

General Duty Clause programs since 

their inception in the early 1990s. 

Moreover, this proposed amendment is 

consistent with sound policy and avoids 

nationwide programmatic impacts that 

would follow if the EPA attempted to 

implement the General Duty Clause 

through title V. 

VI. Statutory and Executive Order 

Reviews 

Additional information about these 

statutes and Executive Orders can be 

found at https://www.epa.gov/lawsregulations/laws-and-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review, Executive Order 

13563: Improving Regulation and 

Regulatory Review, and Executive Order 

14094: Modernizing Regulatory Review 

This action is not a significant 

regulatory action as defined in 

Executive Order 12866, as amended by 

Executive Order 14094, and was 

therefore not subject to a requirement 

for Executive Order 12866 review. 

B. Paperwork Reduction Act (PRA) 

This action does not impose any new 

information collection burden under the 

PRA. OMB has previously approved the 

information collection activities 

contained in the existing regulations 

and has assigned OMB control numbers 

2060–0243 (for the part 70 state 

operating permit programs) and 2060– 

0336 (for the part 71 federal operating 

permit program). The clarifications to 

the regulations proposed in this action 

do not directly change any of the 

information collection activities 

previously approved by OMB. To the 

extent that the proposed action impacts 

permitting authorities or permittees, any 

impacts would fall under, and 

potentially reduce the burden of 

completing, the activities already 

accounted for in the supporting 

statement for these information 

collection requests. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. This action will not 

directly impose any requirements on 

small entities. This proposed rule 

primarily concerns the EPA’s exercise of 

the agency’s oversight obligations when 

reviewing title V permits issued by 

state, local, and Tribal permitting 

authorities, when reviewing title V 

petitions submitted by any person, and 

when issuing title V permits under 40 

CFR part 71. This action would not 

directly impose any requirements on the 

entities involved in these processes 

(including permitting authorities, 

permittees, and members of the public). 

Although those entities could 

eventually be affected by case-by-case 

decisions made when the EPA exercises 

its oversight and/or permitting 

authorities, the economic impact of any 

such future decisions on any small 

entities is expected to be minimal and 

not adverse. For example, the proposed 

rule would reduce uncertainty, and 

potentially cost, for small entities that 

obtain both NSR and title V permits by 

clarifying the limited circumstances 

under which NSR permitting decisions 

would be subject to additional EPA 

scrutiny through the title V permitting 

process. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandate as described in 

UMRA, 2 U.S.C. 1531–1538, and does 

not significantly or uniquely affect small 

governments. The action imposes no 

enforceable duty on any state, local or 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
1188 Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 

Tribal governments, or the private 

sector. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effect on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Additional 

information about how this action could 

indirectly impact states is included in 

section IV.D.2. of this preamble. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action has Tribal implications. 

However, it will neither impose 

substantial direct compliance costs on 

federally recognized Tribal 

governments, nor preempt Tribal law. 

One Tribal government (the Southern 

Ute Indian Tribe) currently administers 

an approved part 70 operating permit 

program, and one Tribal government 

(the Navajo Nation) currently 

administers a part 71 operating permit 

program pursuant to a delegation 

agreement with the EPA. This 

rulemaking does not require those 

entities to take any specific actions, as 

described in section IV.D.2. of this 

preamble. The EPA informally engaged 

with Tribal officials under the EPA 

Policy on Consultation and 

Coordination with Indian Tribes early in 

the process of developing this regulation 

to permit them to have meaningful and 

timely input into its development. 

Specifically, prior to issuing this 

proposed rule, the EPA conducted 

outreach with Tribal representatives 

through a call with the National Tribal 

Air Association. Further, the Agency 

offered to further discuss this action 

with the Southern Ute Indian Tribe and 

Navajo Nation. The EPA also solicits 

comment from affected Tribal 

governments on the implications of this 

rulemaking. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

The EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that concern 

environmental health or safety risks that 

EPA has reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive Order. 

Therefore, this action is not subject to 

Executive Order 13045 because it does 

not concern an environmental health 

risk or safety risk. Since this action does 

not concern human health, the EPA’s 

Policy on Children’s Health also does 

not apply. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211, because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

This rulemaking does not involve 

technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations and Executive 

Order 14096: Revitalizing Our Nation’s 

Commitment to Environmental Justice 

for All 

The EPA finds that it is not 

practicable to assess whether the human 

health or environmental conditions that 

exist prior to this action result in 

disproportionate and adverse effects on 

communities with environmental justice 

concerns. The issues addressed in this 

rulemaking neither directly impact the 

levels of pollution that regulated entities 

subject to title V and/or NSR permitting 

may emit, nor the distribution of such 

regulated entities relative to 

communities with environmental justice 

interests. Rather, the issues in this rule 

are primarily procedural and apply 

uniformly across the nation. 

This proposed rule seeks to codify the 

EPA’s existing positions, so impacts are 

expected to be generally minimal across 

the board. To the extent this action may 

impact communities with 

environmental justice concerns, such 

impacts are expected to mirror those 

affecting the public at large. These 

expected impacts on the public are 

explained in section IV.D.4. of this 

preamble. In summary, this rule will 

provide more clarity to the public about 

the most appropriate, and most 

effective, avenues in which they can 

raise concerns with different types of 

permitting decisions. It will also 

incentivize states to offer more 

meaningful public engagement on NSR 

permitting decisions. 

The EPA provided pre-proposal 

outreach to community and 

environmental justice groups during a 

regularly scheduled National 

Environmental Justice Community 

Engagement teleconference and plans to 

offer more detailed outreach after this 

proposal is published. 

VII. Statutory Authority 

The statutory authority for this action 

is provided by 42 U.S.C. 7401 et seq. 

More specifically, CAA sections 502(b) 

and 502(d)(3), 42 U.S.C. 7661a(b) & 

(d)(3), which direct the Administrator of 

the EPA to promulgate regulations 

establishing state operating permit 

programs and give the Administrator the 

authority to establish a federal operating 

permit program. Additionally, the 

Administrator determines that this 

proposed action is subject to the 

provisions of CAA section 307(d), 

which establish procedural 

requirements specific to rulemaking 

under the CAA. CAA section 

307(d)(1)(V) provides that the 

provisions of CAA section 307(d) apply 

to ‘‘such other actions as the 

Administrator may determine.’’ 42 

U.S.C. 7607(d)(1)(V). 

List of Subjects 

40 CFR Part 70 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Intergovernmental 

relations, Reporting and recordkeeping 

requirements. 

40 CFR Part 71 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Reporting and 

recordkeeping requirements. 

Michael S. Regan, 

Administrator. 

For the reasons set forth in the 

preamble, the EPA proposes to amend 

40 CFR parts 70 and 71 as follows: 

PART 70—STATE OPERATING PERMIT 

PROGRAMS 

■ 1. The authority citation for part 70 

continues to read as follows: 

Authority: 42 U.S.C. 7401, et seq. 

■ 2. Amend § 70.2 by revising 

paragraphs (1), (2), and (4) for the 

definition ‘‘Applicable requirement’’ to 

read as follows: 

§ 70.2 Definitions. 

* * * * * 

Applicable requirement * * * 

(1) Any standard or other requirement 

provided for in the applicable 

implementation plan approved or 

promulgated by EPA through 

rulemaking under title I of the Act that 

implements the relevant requirements of 

the Act, including any revisions to that 

plan promulgated in part 52 of this 

chapter, provided that where a 

preconstruction permit described in 

paragraph (2) of this definition is issued 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 1189 

with public notice and the opportunity 

for comment and judicial review, the 

terms and conditions of such a permit 

establish and define, for purposes of this 

paragraph, the applicable requirements 

of the implementation plan that apply to 

the activities authorized by such a 

preconstruction permit; 

(2) Any term or condition of any 

preconstruction permits issued pursuant 

to regulations approved or promulgated 

through rulemaking under title I, 

including parts C or D or section 

110(a)(2)(C), of the Act; 

* * * * * 

(4) Any standard or other requirement 

under section 112 of the Act, including 

any requirement concerning accident 

prevention under section 112(r)(7) of the 

Act, but not including any requirement 

under section 112(r)(1) of the Act; 

* * * * * 

■ 3. Amend § 70.7 by: 

■ a. Revising paragraph (d)(1)(iv); 

■ b. Removing and reserving paragraph 

(d)(1)(v); and 

■ c. Removing paragraph (d)(4). 

The revision reads as follows: 

§ 70.7 Permit issuance, renewal, 

reopenings, and revisions. 

* * * * * 

(d) * * * 

(1) * * * 

(iv) Allows for a change in ownership 

or operational control of a source where 

the permitting authority determines that 

no other change in the permit is 

necessary, provided that a written 

agreement containing a specific date for 

transfer of permit responsibility, 

coverage, and liability between the 

current and new permittee has been 

submitted to the permitting authority; or 

(v) [Reserved] 

* * * * * 

PART 71—FEDERAL OPERATING 

PERMIT PROGRAMS 

■ 4. The authority citation for part 71 

continues to read as follows: 

Authority: 42 U.S.C. 7401, et seq. 

■ 5. Amend § 71.2 by revising 

paragraphs (1), (2), and (4) for the 

definition ‘‘Applicable requirement’’ to 

read as follows: 

§ 71.2 Definitions. 

* * * * * 

Applicable requirement * * * 

(1) Any standard or other requirement 

provided for in the applicable 

implementation plan approved or 

promulgated by EPA through 

rulemaking under title I of the Act that 

implements the relevant requirements of 

the Act, including any revisions to that 

plan promulgated in part 52 of this 

chapter, provided that where a 

preconstruction permit described in 

paragraph (2) of this definition is issued 

with public notice and the opportunity 

for comment and judicial review, the 

terms and conditions of such a permit 

establish and define, for purposes of this 

paragraph, the applicable requirements 

of the implementation plan that apply to 

the activities authorized by such a 

preconstruction permit; 

(2) Any term or condition of any 

preconstruction permits issued pursuant 

to regulations approved or promulgated 

through rulemaking under title I, 

including parts C or D or section 

110(a)(2)(C), of the Act; 

* * * * * 

(4) Any standard or other requirement 

under section 112 of the Act, including 

any requirement concerning accident 

prevention under section 112(r)(7) of the 

Act, but not including any requirement 

under section 112(r)(1) of the Act; 

* * * * * 

■ 6. Amend § 71.7 by: 

■ a. Revising paragraph (d)(1)(iv); 

■ b. Removing and reserving paragraph 

(d)(1)(v); and 

■ c. Removing paragraph (d)(4). 

The revision reads as follows: 

§ 71.7 Permit issuance, renewal, 

reopenings, and revisions. 

* * * * * 

(d) * * * 

(1) * * * 

(iv) Allows for a change in ownership 

or operational control of a source where 

the permitting authority determines that 

no other change in the permit is 

necessary, provided that a written 

agreement containing a specific date for 

transfer of permit responsibility, 

coverage, and liability between the 

current and new permittee has been 

submitted to the permitting authority; or 

(v) [Reserved] 

* * * * * 

[FR Doc. 2023–27759 Filed 1–8–24; 8:45 am] 

BILLING CODE 6560–50–P 


khammond on DSKJM1Z7X2PROD with PROPOSALS2