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.
The aggrieved petitioners in this permit process almost assuredly will pursue judicial review of this final action in the Court of Appeals, but at least for now, it remains a powerful precedent for keeping Section 112(r)(1) general duties out of Title V permits. Current Title V permit holders may wish to determine whether those permits currently include any (inadvertent and erroneous) reference to Section 112(r)(1) as an applicable requirement, and, if so, to seek rescission of that term. Its inclusion leaves the permit holder at risk of defending itself from citizen enforcement of the very open-ended general duty.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.