Academic journal article Environmental Law

Are Insignificant Emissions Significant? Western States Petroleum Ass'n V. EPA: The Air Operating Permit Program of the Clean Air Act

Academic journal article Environmental Law

Are Insignificant Emissions Significant? Western States Petroleum Ass'n V. EPA: The Air Operating Permit Program of the Clean Air Act

Article excerpt

I. Introduction

One of the primary goals of the Clean Air Act (CAA)(1) is to "encourage or otherwise promote reasonable Federal, State, and local governmental actions . . . for pollution prevention."(2) In designing its air operating permit program pursuant to the CAA, the State of Washington acted reasonably when it decided not to require monitoring, reporting, or recordkeeping of air emissions deemed to be insignificant Washington's decision was in harmony with the regulations, policy guidelines, and prior and subsequent approvals of the Environmental Protection Agency (EPA). When the EPA failed to approve Washington's permit program, the United States Court of Appeals for the Ninth Circuit held that EPA abused its discretion in Western States Petroleum Ass'n v. EPA.(3)

In Title V of the Clean Air Act Amendments of 1990, Congress created a comprehensive air operating permit program for all major stationary sources of air pollution.(4) Title V requires EPA to promulgate regulations implementing the permit program.(5) These regulations, passed in July 1992, establish the minimum requirements of a state's air operating permit program, addressing permits, monitoring and reporting requirements, and fees to cover the cost of the programs.(6) States failing to implement the required permit program by the statutory deadlines are subject to mandatory sanctions, including the loss of federal highway funds.(7)

While Title V does not add any substantive new requirements, it requires all new and existing major sources to obtain permits from state air pollution control agencies.(8) EPA regulations require that the permit application for a facility list all emission units, except for emission units deemed insignificant as defined by the state permitting authority.(9) The current EPA guidelines for insignificant emission units (IEUs)(10) make it clear that a state has broad discretion in determining permit application and permit requirements for small equipment and activities.(11) The rationale for this EPA policy is the agency's belief that IEUs typically have inconsequential environmental impacts.(12)

An activity may be categorically defined as an IEU based on the activity's size or production rate.(13) At a facility, these "categorically exempt" activities might include street sweeping, landscaping, or even air escaping from an office building vent(14) Activities with emissions below certain yearly tonnage thresholds may also be defined as IEUs.(15) In an individual facility, there may be thousands of IEUs which account for only a small percentage (less than 5%) of total emissions.(16) Guidance from EPA and permit program approvals in other EPA regions make it clear that a state can exempt IEUs from Title V monitoring, reporting, and recordkeeping requirements.

Against this regulatory background, the State of Washington created its air operating permit program through notice and comment rulemaking.(17) Washington agreed with public comments that IEU monitoring, reporting, and recordkeeping requirements would result in excessive paperwork and would likely decrease the ability of permitting agencies to effectively enforce Title V permits.(18) In its final rules submitted to EPA for approval, Washington therefore exempted IEUs from Title V monitoring, reporting, and recordkeeping requirements, but not from any substantive CAA requirements.(19) Under Washington's program, an IEU still must comply with generally applicable requirements(20) such as the state opacity rules.(21) Washington continues to rely on periodic agency inspections, public complaints, and industrial audits to identify any future IEU compliance problems.(22)

EPA then granted interim approval of Washington's program, conditioning final approval upon Washington's amendment of its IEU rules to disqualify any emission unit subject to any applicable requirement, general or specific.(23) This condition would have effectively prevented any emission unit subject to any applicable requirement (e. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.