Louisiana’s Title V permit program requires each permit to contain “a schedule of compliance consistent with LAC 33:III.517.E.4.” Under Section 517.E.4, and its federal counterpart 40 C.F.R. 70.6(c), the permit application must contain a “narrative description of how the source will achieve compliance and a compliance schedule” with respect to “any applicable requirements with which the source is not in compliance at the time of permit application submittal.” The schedule proposed must “resemble and be at least as stringent as that contained in any judicial consent decree or administrative order or compliance order to which the source is subject.” Id. Progress reports are required at least every six months. Id.
The duty to include a compliance schedule is not frozen in time with the compliance status at the time of the submittal of the application. The applicant has a duty to update the permit application to include corrected information if the application is later found to have incorrect or omitted information and to “provide additional information as necessary to address any requirements that become applicable to the source after the date it filed a complete application but prior to release of a proposed permit.” LAC 33:III.517.C. and 40 C.F.R.70.5(c)(8) and 70.6(c).
What does this mean for a facility that has been issued a Compliance Order during the time period that an application for an initial or renewal Title V permit is pending? What if the application is for a minor modification or significant modification, but is not an initial or renewal permit application? What if the Compliance Order has been contested? What if you have received only a Notice of Potential Penalty, but no compliance Order? What if your facility is under investigation by EPA or LDEQ, but no enforcement action has yet been taken?
Some of these questions have been answered by EPA in official orders responding to petitions asking EPA to object to Title V permits on the ground that no compliance schedule was included in the permit. In a recent decision, In the Matter of Camden County Energy Recovery Associates, Petition No. II-2005-01, EPA indicated that a compliance schedule must be included only if the facility is in “ongoing noncompliance” at the time of permit issuance, citing 40 C.F.R. 70.6(c) and 70.5(8). The citizens’ group challenging the permit argued that a compliance schedule was necessary because the New Jersey Dept. of Environmental Protection had taken eight enforcement actions against the facility in 2003 for problems with its electrostatic precipitator. The citizens’ group argued that this showed an ongoing pattern of noncompliance. However, the EPA Administrator said that NJDEP had already issued penalties for the violations prior to the permit issuance and that there was no evidence that the facility was still in noncompliance at the time of permit issuance; thus, no compliance schedule was required.
In the Matter of G-P Gypsum Corp., Petition No. II-2005-05, involved a citizens’ group argument that a Title V permit should contain a compliance schedule to address PM exceedances. The permit application was submitted in 1996, but the initial Title V permit was not issued until 2005. During the intervening time period, the facility conducted stack testing that showed it exceeded the preconstruction permit limit of 1.06 lb/hr PM by emitting 1.4 lb/hr. The NJDEP took enforcement in 2002, imposing a fine of $2,000.00 which was appealed and reduced to $1,000.00. The underlying rule required emissions to be 16.1 lb/hr or less. The preconstruction permit was modified to allow the 1.4 lb/hr emission rate. Given these circumstances, the EPA Administrator denied the citizens’ request for objection, stating that even though a violation may have existed at the time of permit application submittal, it was resolved before final issuance of the Title V permit.
The citizens’ group also argued that a compliance schedule should be included to address certain monitoring violations. They argued that these could be considered as being “resolved” only if NJDEP had imposed penalties and could not be resolved if NJDEP had simply issued an administrative order requiring compliance. EPA rejected this claim and stated that the choice of enforcement mechanisms was up to the state and, so long as no ongoing violation existed at the time of permit issuance, no compliance schedule was required.
EPA did grant a petition for objection to a Title V permit concerning the alleged lack of a compliance schedule in the case of In the Matter of Onyx Environmental Services, Petition No. V-2005-01. There, the Illinois Environmental Protection Agency (IEPA) referred the permit applicant to the Illinois Attorney General for investigation of potential air regulatory violations. During the public comment process the Attorney General commented that measures identified by Onyx as being necessary to prevent future violations had not been included in the draft permit. The IEPA did not respond to this comment. The EPA Administrator remanded the matter to IEPA to determine whether a compliance schedule was needed in the permit to address the Illinois Attorney General’s comments. These apparently had not yet been resolved through any formal enforcement mechanism.
In 2004, EPA denied a request to object to a Title V permit for Chevron’s refinery for the reason that the permit lacked a compliance schedule. In the Matter of Chevron Products Company, Petition No. IX-2004-10. There, the citizens’ group raised two issues. First, it indicated that because the company was under investigation for New Source Review violations, the permit should contain a compliance schedule to address those. EPA and the California air district took the position that the investigation was ongoing and that if any violations were found, then the permit would be reopened to insert any necessary compliance schedule and other required permit modifications to insert applicable requirements. The EPA Administrator agreed and denied the petition on this ground. Second, the citizens’ group argued that the quarterly NOx emission reports filed by the facility showed that it had periodic and ongoing exceedances of its NOx “Box” [presumably equivalent to Louisiana’s BACT box for combustion sources]. The EPA Administrator denied the petition for interesting reasons. It said that the federally applicable requirement currently approved in the state SIP was 0.20 lbs/NOx per MMBtu, and, although the state had revised the state rule to 0.033 lbs/NOx per MMBtu, that revision was not yet part of the approved SIP. Further, EPA said that the NOx box monitoring was simply an indicator of performance which used emission factors as indirect measures but did not directly measure NOx emissions. Because a stack test was actually required to determine the exact emissions and no stack test had been conducted, there was no evidence in the quarterly NOx reports to show that the federally applicable 0.20 lb/NOx per MMBtu was violated. Absent evidence of an ongoing violation of a federally applicable requirement at the time of permit issuance, no compliance schedule was required under federal law.
For more information, contact Maureen N. Harbourt at Maureen.Harbourt@keanmiller.com.