Background
Genghmun Eng, proceeding pro se, sought review of an EPA Administrator’s decision denying his administrative petition under Section five hundred five of the Clean Air Act. Eng requested that the EPA object to the renewal of a Title V operating permit issued by the South Coast Air Quality Management District to a refinery in Wilmington, California. Eng argued that the permit lacked necessary conditions to address the risk of a catastrophic release of hydrogen fluoride or modified hydrofluoric acid. He alleged defects in the refinery’s Risk Management Plan, Emergency Response Plan, and other documents. The Administrator rejected these claims, concluding that the Title V process was not the proper venue for resolving risk management concerns and that the state law requirements invoked were not federally enforceable.
The court’s reasoning
The panel first addressed the EPA’s threshold argument that the petition should be denied because Eng failed to raise all issues during the public comment period. The court rejected this, noting that the Administrator’s order only stated that many, not all, issues were not raised in comments. Since the Administrator did not dispose of all claims on procedural grounds, the court could not deny the entire petition on that basis alone. The court then upheld the Administrator’s decision on merits-based grounds. It found that the Title V permitting process is designed to consolidate existing requirements rather than impose new substantive pollution controls. The Risk Management Program under Section one hundred twelve of the Clean Air Act is a separate regulatory regime administered by the EPA, not the state permitting agency. The court held that Eng failed to demonstrate that additional Title V conditions were necessary to assure compliance with the Risk Management Program. Furthermore, the court found that state law requirements do not constitute applicable federal requirements under the Clean Air Act.
The panel concluded that the Administrator’s rejection of Eng’s petition was neither contrary to law nor arbitrary and capricious.
ENG V. USEPA 2
What it means going forward
The decision reinforces the separation between the Title V operating permit process and the Risk Management Program enforcement regime. It clarifies that state permitting agencies lack authority to impose substantive conditions based on federal risk management requirements and that the EPA cannot object to Title V permits based on state law requirements.