Posted on March 24, 2011 by Michael McCauley
At this time of year, most companies with facilities which have Title V air operating permits have either filed, or are preparing to file, annual compliance certifications and semi-annual compliance monitoring reports with their state air agencies. It is good to remember how important these documents are and why special attention must be paid to insure they are completed accurately and wisely.
Here are some thoughts on why Title V compliance certifications and semi-annual monitoring reports are so important:
- Each permitted facility should take great care in developing its annual compliance certification – especially if the plant is reporting “deviations” or “exceptions” from the permit requirements or violations of the permit limits. Such a certification must be viewed as a self-reported “Notice of Violation” and as an important, first-step enforcement document. The permitted facility should not just report problems and non-compliance items without also describing and explaining the corrective actions which have been taken to resolve the problems.
- Once a Title V certification is filed with a state agency and/or federal EPA, the facility can be fairly certain state and federal enforcement staff will be looking at it with a view toward possibly commencing formal enforcement proceedings to resolve any problems which are identified. Even if the state and federal agencies exercise their enforcement discretion and choose not to act, environmental groups can and sometimes do file citizen enforcement lawsuits to directly enforce the terms of the permit in federal court. Because the violations are “self-reported,” a federal court will almost certainly impose some level of civil penalty in a Citizen Suit. If that happens, the defendant company must not only pay the civil penalty — but also the attorneys fees and costs of the plaintiff environmental group which commenced and pursued the action.
- For the above reasons, it is important that all Title V compliance certifications be reviewed and approved by company counsel — either in-house attorneys or outside counsel — in advance of filing. This process is especially true if exceptions or deviations are being reported. Counsel should also be involved to insure the “reasonable inquiry” requirements have been met before the “Responsible Official” of the company signs the certification. If the certification is not true, accurate and complete, both the responsible official and the company can be subject to prosecution.
- These suggestions apply to companies of all sizes which are subject to the Title V air permit program. If a company does not have an in-house lawyer on staff, it should consider seeking the advice of outside counsel. It is important to have the right kind of legal advice available in this area. Simple mistakes and oversights made in the Title V certification process can later prove to be very expensive.
- Like anything else, this process can be managed effectively so that a company can avoid unnecessary risks of legal liability. However, it takes foresight, planning and knowledge of the process in order to navigate safely through the Title V compliance certification process.
- And remember the old adage: “An ounce of prevention can be worth a pound of cure!”