Clean Air Act General Duty Provision is Not an Applicable Requirement for Title V Permit Purposes

EPA’s Administrator very recently issued this response to a petition to object to a Title V permit (issued to a Georgia wood pellet maker), which very helpfully concludes that the Clean Air Act Section 112(r)(1) general duty is not an applicable requirement that must be included in a Title V permit. The general duty clause broadly obligates “owners and operators of stationary sources producing, processing, handling or storing [hazardous substances] to identify hazards which may result from such releases using appropriate hazard assessment techniques, to design and maintain a safe facility taking such steps as are necessary to prevent releases, and to minimize the consequences of accidental releases which do occur.” Because the language is vague and grants much discretion in its interpretation, application, and enforcement, the Clean Air Act expressly precludes the use of otherwise available citizen suit mechanisms in Section 304 to enforce Section 112(r)(1). The environmental petitioners challenging the Georgia Title V permit sought to have this obligation included in a Title V permit to circumvent this limitation: Any provision in a Title V permit is susceptible to citizen suit enforcement. It was for this very reason that the EPA Administrator concluded Section 112(r)(1) should not be considered an “applicable requirement” to be included in the Title V permit.