The Regulators: Federal and State
Partners in Regulation
The EPA is ultimately responsible for the provisions of the Clean Air Act. In practice, EPA enlists the aid of analogous state agencies to do the work of both permitting and enforcement.
At its best, this is a symbiotic relationship, where the states and EPA work together to ensure proper application and enforcement of the law. EPA typically allows state and local air quality guidelines to trump their own when those other laws are at least as rigorous. But conflict sometimes arises when EPA determines that state permitting is less rigorous than federal interpretations. The CAA in those cases can become a battleground of states’ rights versus federal rights.
The laws regarding air compliance are complex and continually in flux. Interpretation varies from state to state, industry to industry, and company to company.
Staying on top of new regulations, interpreting air compliance requirements, and putting a comprehensive plan in place to stay compliant can be a messy process, especially when a state’s interpretations—and willingness to apply and enforce the law—might be at odds with EPA.
That’s what we’re here for: to make sense of the regulatory terrain, and to offer the most cost-effective regulatory solutions.
That’s also why Vapor Point’s principals remain in continual communication with federal and state regulatory agencies, attending meetings and contributing to the interpretation and application of CAA requirements. In addition, we are members of many trade associations and industry panels, including the TXOGA (Texas Oil and Gas Association), ACIT (Association of Chemical Industry of Texas), Texas Alliance, and ILTA (International Liquid Terminals Association). By staying connected with the regulators, we can help you stay on top of all your compliance challenges.
How We Got the Clean Air Act
The EPA was established in late 1970 amidst growing public concern about environmental pollution. This new federal agency soon found itself charged with overseeing a showcase piece of legislation, the Clean Air Act (CAA). The intent of the Clean Air Act was to provide comprehensive air emission regulations for both stationary and mobile sources. It soon became evident, however, that the CAA as originally constituted was inadequate to either define the true scope of the country’s air quality issues, or to provide authority to enforce the rules.
In 1990, under President George H. W. Bush, the Clean Air Act was significantly updated to both expand regulatory requirements and strengthen enforcement actions. Titles I, II, III, IV, and VI concerns the “what” of the new law, and Title V defines the “how” of compliance.
Title V: Permits
The 1990 amendments introduced an operating permits program modeled after a similar program under the Federal National Pollution Discharge Elimination System (NPDES) law. The purpose of the operating permits program is to ensure compliance with all applicable requirements of the Clean Air Act, and to enhance EPA’s ability to enforce the Act. Air pollution sources subject to the program are now required to obtain an operating permit, and states have been directed to develop and implement the permitting program. EPA issues permit program regulations, reviews each state’s proposed program, and oversees the state’s efforts to implement any approved program. When a state fails to create its own program—and some have—EPA steps in with its own federal permit program.
EPA’s permit program—in many ways the most important procedural reform contained in the new law—is intended to greatly strengthen enforcement of the Clean Air Act. It enhances air quality control in a variety of ways. First, adding the Title V permitting program made it more consistent with other environmental statutes that already required permits. The new program also clarifies and makes more enforceable a source’s pollution control requirements. Before Title V, a source’s pollution control obligations might have been scattered throughout numerous hard-to-find provisions of state and federal regulations, and in many cases the source was not required—under then-existing applicable State Implementation Plans—to submit periodic compliance reports to EPA or the states. Title V ensures that all of a source’s obligations with respect to its pollutants will be contained in a single permit document, and that the source will file periodic reports identifying the extent to which it has complied with those obligations. Both of these requirements greatly enhance the ability of Federal and state agencies to evaluate air quality situations.
In addition, Title V provides a ready vehicle for states to assume administration—subject to federal oversight—of significant parts of the air toxics program and the acid rain program. And, through the permit fee provision, Title V greatly augments a state’s resources to administer pollution control programs by allowing fee collection from permitted facilities to cover reasonable direct and indirect costs of the permitting program.
All sources subject to the permit program must submit a complete permit application. The state permitting authority must determine whether or not to approve an application within 18 months of the date it receives the application.
Once a state has issued a permit, EPA has 45 days to review each permit and to object to permits that violate the Clean Air Act. If EPA fails to object to a permit that violates the Act or the implementation plan, any person may petition EPA to object within 60 days following EPA’s 45-day review period, and EPA must grant or deny the permit within 60 days. Judicial review of EPA’s decision on a citizen’s petition can occur in the Federal court of appeals.
Each permit issued to a facility will be for a fixed term of up to five years.
The CAA’s Strengthened Enforcement Provisions
The EPA learned with the first iteration of the Clean Air Act that regulation without enforcement is meaningless. The Clean Air Act of 1990 also contains a broad array of authorities to make the law more readily enforceable, thus bringing it up to date with the other major environmental statutes.
EPA has new authorities to issue administrative penalty orders up to $200,000, and field citations up to $5000 for lesser infractions. Civil judicial penalties are enhanced. Criminal penalties for knowing violations are upgraded from misdemeanors to felonies, and new criminal authorities for knowing and negligent endangerment have been established.
In addition, sources must certify their compliance, and EPA has authority to issue administrative subpoenas for compliance data. EPA will also be authorized to issue compliance orders with compliance schedules of up to one year.
Further, citizen suit provisions have also been revised to allow citizens to seek penalties against violators, with the penalties going to a U.S. Treasury fund for use by EPA for compliance and enforcement activities.
With the regulatory environment tough and getting tougher every day, Vapor Point is here to be your air compliance partner. Give us a call, or email our solutions team, and let us take on the burden of satisfying the regulators.