When Maybe Is Good Enough: The Title V Citizen Petition

February 2011
ELR 10091
John C. Evans and Donald R. van der Vaart

This Article briefly describes a new basis for the objection that EPA has employed whereby operating permits can be delayed for significant periods of time without the expenditure of significant resources by EPA or environmental groups. In many cases, its use has shifted resource-intensive enforcement questions to the states. This new scheme turns the Title V permit process into an iterative process by remanding the permit back to the states without clear direction as to the remedy EPA is seeking. Under this scheme, rather than making a determination on the merits of a petition, EPA objects to the permit on the basis that the state failed to adequately respond to public comments. In remanding the permit back to the state agency, EPA does not state what its opinion is on the substantive citizen petition claim, and in fact does not allege that the permit contains any provision inconsistent with the CAA or regulations. This new approach allows EPA to shift an enforcement question to the states, rather than addressing the alleged noncompliance themselves. While few would argue that public input is important to the process, the inquiry here is whether there is a legal duty to provide written responses, and furthermore, whether that duty is a  requirement of the CAA. The inquiry is important because the Title V objection authority is limited to instances where the permit is not in compliance with the CAA.

Donald R. van der Vaart, P.E., Ph.D., J.D., is chief of the Permits Section for the North Carolina Division of Air Quality. He has worked as an engineer in industry, academic, and government capacities. John C. Evans, J.D., is a supervisor in the Permits Section of the North Carolina Division of Air Quality. He worked in the field of environmental regulation for government, industry, and consulting. He also served in the North Carolina Attorney General’s office and litigated federal air quality regulations, including the EPA NOx SIP Call and the CAIR rule.

You must be an ELR-The Environmental Law Reporter subscriber to download the full article.

You are not logged in. To access this content:

When Maybe Is Good Enough: The Title V Citizen Petition

SKU: article-1949 Price: $50.00