In Envtl. Integrity Project v. EPA, 2020 WL 278829 (5th Cir. 2020), the court ruled that the US Environmental Protection Agency (EPA) did not have to object to a Clean Air Act (CAA) Title V Air Operating (Title V) permit modification issued to ExxonMobil in Baytown, Texas. ExxonMobil sought to revise its Title V permit to incorporate a minor source air pre-construction permit previously issued by the Texas Commission on Environmental Quality (TCEQ) for its plant's expansion, and the Environmental Integrity Project, Sierra Club, et al. (collectively, EIP) asked EPA to object on the grounds that ExxonMobil's underlying state air pre-construction permit was invalid.

In 1990, the CAA authorized operating permits in order to consolidate all requirements to comply with the CAA. Other than monitoring, record-keeping, and reporting, the Title V permit does not typically establish any new emission control requirements. In Texas, TCEQ initially issues Title V permits, subject to comments and EPA objection. Citizens can petition EPA to object to a given Title V permit, and can seek judicial review if EPA fails to object, as here. State implementation plans also allow states to establish annual emission levels called Plantwide Applicability Limits (PALs) in permits for major sources where applicable. And as long as the facility emissions remain under the PAL, the source can make changes to its facility without undergoing the rigorous New Source Review (NSR) of a major modification. Continue reading >