Last Tuesday, the Tenth Circuit added its name to the growing list of federal appellate courts that agree EPA need not withhold approval of Title V operating permit renewals simply because a citizen group, or even EPA itself, has alleged violations of the New Source Review (NSR) program. Three other courts that have addressed this issue (the Sixth, Seventh, and Eleventh Circuits) have likewise held that EPA could approve Title V permits despite unresolved NSR claims, leaving the Second Circuit as the only court to hold otherwise.
Like the other courts before it, the Tenth Circuit distinguished itself from the Second Circuit’s decision by noting that a New York-specific law controlled the outcome in that outlier case. The Tenth Circuit thus deferred to EPA’s characterization of its own Notice of Violation as merely a preliminary step in the enforcement process, and not one that was relevant for the purpose of evaluating Title V permit renewals. The court rejected the WildEarth Guardian’s attempt to raise “valid suspicions” of NSR violations because the group had not performed proper emission calculations, and therefore could not prove that a reheater replacement in 1994 or a condenser project in 1997 violated NSR.
This case should provide even more legal support for companies seeking to renew their Title V permits in the face of citizen group (or even EPA) challenges. A copy of the Tenth Circuit’s decision is available here: WildEarth Guardians v. EPA.