Flexibility Provisions in State Title V Operating Permit Programs Under the Clean Air Act

When the Clean Air Act CAA was amended in 1990, the most ambitious feature of the new legislation was the Title V operating permit program. It will take years to fully implement Title V. So far, the most controversial aspect of the Title V program has proven to be the so-called flexibility provisions, which govern whether a Title V permit must be revised when an air pollution source wishes to make an operational change at its facility, and what procedures apply when a permit revision is necessary. As a general matter, Title V recognizes that an operating permit program must allow American industry sufficient flexibility to make changes quickly so that it can remain competitive in the global marketplace. However, the Environmental Protection Agency EPAs implementing Part 70 regulations reflect a complex and uneasy reconciliation of the principle of flexibility with competing policies. This paper examines the experience of selected states and one local air pollution control agency in implementing the Part 70 flexibility provisions.