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The operating permits program under Title V is the most significant innovation in the 1990 Amendments to the Clean Air Act. Although it makes no changes to the substantive provisions contained in the rest of the Act, Title V requires “major” industrial sources of air pollution to incorporate all of these requirements into a single document or “permit.” These permits, approved under state programs, will become the primary enforcement vehicle of the Clean Air Act, similar to the operating permits under the Clean Water Act.
Although ostensibly run by the states, the EPA retains ultimate control over the state permitting programs, giving the agency numerous opportunities to meddle in the process and micromanage industry when it so chooses. Environmental groups, exploiting the generous public participation and citizen suit provisions, will also acquire unprecedented power over industry.
Title V will impose substantial costs on industry. EPA puts the cost of Title V at $500 million annually, but others believe this estimate may be an order of magnitude too low. In addition to the high paperwork and compliance costs, Title V’s extensive procedural requirements can result in costly delays lasting months or even years, both during the initial permitting process, and in the required revisions to existing permits to incorporate changes at a permitted facility. The potential delays will be particularly troublesome for fast moving industries where facility changes are frequent and it is necessary to quickly bring products to market.
Given the significant improvements in air quality since 1970, and the marked declines in emissions from the large industrial facilities Title V targets, it is difficult to justify the introduction of a new and expensive enforcement scheme at this time. EPA has not attempted to quantify the benefits, in terms of cleaner air, it expects from Title V, but they are likely to be marginal.
While a few legislative changes could make Title V considerably more tolerable than it currently is, there is no reason not to do more. No matter how modified, Title V will never achieve results at an acceptable cost. There now exists a unique window of opportunity to eliminate Title V before it becomes an entrenched part of the regulatory landscape. If all that is accomplished is the softening of a few of Title V’s more onerous aspects, the current period may one day be looked back upon as a lost chance at getting rid of the most dispensable title in the Clean Air Act.