Project 2025 Tracker / What’s done, what’s next

13. Environmental Protection Agency · Notable

Bar Title V objection petitions from second-guessing state decisions

Done

427 13. Environmental Protection Agency

“Defend the position that petitions to object to Title V should not be used to second-guess previous state decisions.”

What has happened

  1. Done

    EPA wrote the position into its petition rule. The final rule on RIN 2060-AW77 amends 40 CFR 70.12(a)(2), the content requirements for a petition to object, to say that "any claim that an applicable requirement, as defined in § 70.2, was incorrectly established will not present grounds for the Administrator's objection", and makes the same change to EPA's own review in 70.8(c)(1) and to the federal program in part 71. The amended definition makes the terms of a state NSR permit issued with public notice and the opportunity for comment and judicial review the applicable requirement itself, so a petition can no longer reopen the state's permitting decision. The preamble gives the reason in the Quote's own terms: title V "is not designed to authorize or require permitting authorities to second-guess prior NSR decisions", and "if an applicable requirement is conclusively established outside of title V, title V may not be used to second-guess the substantive adequacy of that requirement." `done` rather than `partial`: an NSR permit issued without public notice and comment is not treated as conclusively established and remains reviewable. That is a decision the state did not make through a process open to challenge, and EPA states it as the boundary of the position, not an exception to it. Dated from publication; effective 2026-10-26.

  2. Attempted

    The 2026 Unified Agenda carries RIN 2060-AW77, "Clarifying the Scope of 'Applicable Requirements' under State Operating Permit Programs and the Federal Operating Permit Program" (EPA/OAR), at Final Rule Stage, CFR citation 40 CFR parts 70 and 71, with a final rule timetabled for 07/2026. The entry names this ask's object: the action addresses "the extent to which other Clean Air Act (CAA) requirements … may be reviewed, modified, and/or implemented through the title V permitting and petition process", and the 2024 proposal it would finalize limits the situations in which a title V petition may reach a New Source Review determination the state has already made. Nothing has published since 2025-01-20; an agenda entry is `attempted` and never more (playbook §3b).

  3. Not started

    EPA kept ruling on Title V objection petitions one plant at a time without stating the position the Quote asks it to defend. About fifteen orders on petitions to object were noticed in this window and no rule, guidance or policy statement held that a petition may not be used to re-open a state permitting decision already made. The Administrator's order of 3 February 2026 denying the petition against Indiana's two Cleveland-Cliffs Indiana Harbor permits is the pattern: it works through the petitioners' claims one at a time on the adequacy of monitoring conditions, and the nearest it comes to the Quote's position is a passage declining to import requirements that are "not currently applicable and which are contingent upon uncertain, hypothetical future actions at a facility" — a point about future requirements, not about reopening decisions a state has already made. The one published Title V rulemaking of the window — rescinding the emergency affirmative defense rule — was a court-ordered response to *SSM Litigation Group v. EPA*, not a statement of position on what a petition may re-open.

Research log

What was searched, and what didn’t count as evidence

Research notes

  • Corrected 2026-09-01, and kept as a sequence rather than a rewrite: the earlier finding still stands as a dated not started event — nothing had published — and the agenda entry is a later, separate event. The earlier negative was drawn from the Federal Register, which prints only the agenda entries needing a Regulatory Flexibility analysis; 2060-AW77’s page says Regulatory Flexibility Analysis Required: No, RIN Data Printed in the FR: No, so the entry is legible only on the full reginfo.gov agenda. The not started event has been re-dated from the research date to the event it rests on (2026-06-01), so the two events read in order.

  • Direction, checked before leveling: the proposal at 89 FR 1150 (2024-01-09, Federal Register document 2023-27759) “clarifies the limited situations in which requirements under the New Source Review (NSR) preconstruction permitting program would be reviewed using the EPA’s unique title V oversight authorities”. That narrows what a petition may re-open, which is the Quote’s direction. It is pre-window, so it is prose here and not an Evidence item.

  • Same RIN moves #1093 (the New Source Review / Title V relationship).

  • EPA issued roughly fifteen orders on Title V petitions to object in this window — Shell Chemical, AdvanSix, Torrance Refining, Harvest Four Corners, Morenci Mine, Young Gas Storage, Kinder Morgan Altamont, TVA Shawnee, South32 Hermosa, Apache Generating, Neville Chemical, two U.S. Steel Mon Valley plants, Platteville, Cleveland-Cliffs Indiana Harbor. The position the Quote asks EPA to defend would be stated inside those orders; the Federal Register notices carry only the caption.

  • Reviewed 2026-09-06. Status unchanged. The open lead named FR 2026-04335 as the order to open. It is not the order — it is the notice announcing one, and it says so: “the order itself explains the basis for the EPA’s decision” and points at EPA’s Title V petition database (epa.gov/title-v-operating-permits/title-v-petition-database). That database opens normally and tabulates every petition with links to the petition and the resolution; it is the route to all fifteen orders. We read the Cleveland-Cliffs Indiana Harbor order (epa.gov/system/files/documents/2026-02/cleveland-cliffs-order_02-03-2026.pdf) in full as the sample, since it is the one the lead named.

  • What it shows: the order denies the petition claim by claim on whether the permits’ monitoring assures compliance with numeric limits, and repeatedly reasons from what petitioners raised in state public comment. “Second-guess” appears zero times; “New Source Review” zero times. There is no general statement of the position, in either direction. So the negative in this event’s note rests on a read of an order and not only on the captions.

  • The reach of that negative, stated plainly: one of fifteen orders was read. It is the one the lead selected, and it is representative in form, but a general position stated in one of the other fourteen would not have been caught.

  • The petition database also shows the practice continuing: a new petition against Cleveland-Cliffs Burns Harbor was filed on 2026-08-21 and is pending.

  • The only Title V rulemaking in the window is the June 2026 rescission of the emergency affirmative defense rule, which EPA did under a D.C. Circuit mandate rather than as a matter of policy — a different question from what a petition may re-open.

Resolved in the review of 2026-09-27. A first reading from the rule’s Federal Register abstract left this item at attempted with an open question, because the Federal Register abstract speaks of “title V oversight authorities” and does not say whether petitions are reached. The review read the regulatory text, and they are: 70.12(a)(2) is the petition rule. On the three open questions: (1) the rule governs petitions to object as well as EPA’s own review; (2) it rests the limit on a requirement being “conclusively established” by a state permitting action open to public comment and judicial review, which is deference to the state’s earlier decision; (3) the one reach it keeps, NSR permits issued without that process, is the boundary of that reasoning rather than an exception carved out of it, so the event is done. The rule prints RIN 2060-AW77, matching the agenda events above. The “2060-AV61” given in the first reading did not come from the rule.

Action
restrict
Object
Title V petitions to object
ID
1092