A cornerstone of GASP’s clean air advocacy is watchdog work. We keep tabs on more than just air quality data and emissions spewing from industrial polluters - GASP also works to keep our air quality regulators accountable.
Here in Allegheny County, that means evaluating how efficiently our air local quality regulator - the Allegheny County Health Department (ACHD) - is managing the issuance of new air quality permits and renewals.
For the uninitiated: GASP’s legal team first sounded the alarm about a backlog of applications for new or renewed Title V Operating Permits for major sources of air pollution in Allegheny County back in 2016.
We’ve provided periodic updates about ACHD’s efforts to whittle down that backlog and even expanded our watchdog work to include analyzing the Pennsylvania Department of Environmental Protection’s (DEP) permit backlog.
“Our investigation found that while improvements were initially made by ACHD and DEP to reduce their Title V permit backlogs, progress appears to be stalled in some regions,” GASP Executive Director Patrick Campbell said. “There are still too many major sources of air pollution operating under old permits and, unbelievably, some that are operating without any operating permit at all."
Here’s what our research uncovered and why we continue to sound the alarm over this backlog:
Title V Operating Permits: What They Are, Who Needs Them & How They’re Issued
The first thing you need to know is that operating permits for major sources of air pollution are required by Title V of the Clean Air Act, and thus are commonly called Title V Operating Permits.
A Title V Operating Permit for a particular facility must contain all of the operating requirements that the air pollution laws impose on the facility. This helps facilitate compliance with those requirements - regulators and the public can use a facility’s Title V Operating Permit to determine the applicable requirements and help determine whether or not it is complying with them.
A major source must apply for a Title V Operating Permit once it begins normal operations. These permits are good for five years and sources must apply to renew them prior to their old ones expiring. The Clean Air Act, Pennsylvania’s air pollution control rules, and Allegheny County’s air pollution control regulations all require that the agency responsible for issuing Title V Operating Permits complete its review of any complete permit application within 18 months.
These laws also authorize citizens to bring actions in state court to compel agencies to issue permits for which complete applications have been pending for more than 18 months.
It should be noted that the Clean Air Act allows a source that has submitted a complete application for a Title V Operating Permit to continue operating pending the issuing agency’s final approval of the application - even if agency approval takes years.
The Clean Air Act also requires that the operations of the state and local programs that administer Title V Operating Permits be funded entirely from the emissions and permit fees paid by the sources subject to the requirements of Title V.
It’s also worth noting that the fees DEP charges for permit applications increased in early 2021 because the old fee structure was purportedly insufficient to fund the operations of its Air Quality Bureau. ACHD also revised its fee schedule to track DEP’s in 2021.
Good news for that permit backlog, right? Not so much, says GASP senior attorney John Baillie.
“The 2021 fee increases seem to have had little or no positive impact on DEP’s backlogs,” he explained, “In fact, the backlogs in four of DEP’s regional offices actually got worse from 2022 to 2023.”
Now on to Allegheny County, where there are 23 major sources operating, two of which have applied for but have never been issued Title V Operating Permits - ATI Flat-Rolled Products (which was formerly known as Allegheny Ludlum Brackenridge Works) and Synthomer (which was formerly known as Eastman Chemicals & Resins).
Although ACHD published a draft Title V Operating Permit for Allegheny Ludlum’s Brackenridge Works in 2016, it revealed problems with the way proposed emission limits for the facility were determined - issues that have yet to be resolved, further delaying the issuance of the Title V Operating Permit.
Synthomer is subject to a 2011 federal and state Consent Decree that has a direct impact on its air quality permits and that effectively precluded the issuance of a Title V Operating Permit until it has been satisfied (which has yet to occur). Synthomer/Eastman Chemical did, however, finally submit its application for a Title V Operating Permit in February 2022.
Further, ACHD has failed to act on renewal applications for another three of those 23 major sources within 18 months as its regulations require:
For purposes of air quality permitting, DEP’s Southwest Regional Office includes sources in Beaver, Cambria, Greene, Somerset, Washington, and Westmoreland Counties. FYI: Responsibility for administering the Title V permitting program for sources in Armstrong and Indiana Counties was transferred to DEP’s Northwest Regional Office in early 2019.
We currently count 52 major sources under the Southwest Regional Office’s jurisdiction. One of them, the Brunner Landfill in Beaver County, has applied for, but never been issued, a Title V Operating Permit.
Three other major sources in the Southwest Region – CPV Fairview Energy Center in Cambria County, Hill Top Energy Center in Greene County, and Tenaska Westmoreland Generating Station in Westmoreland County – have been constructed and are temporarily operating under the authority of their plan approvals (or preconstruction permits), but have not yet applied for their Title V Operating Permits (yes, air pollution regulations allow this during the start-up process for a facility).
Another nine sources in the region have renewal applications for operating permits that have been pending for more than 18 months:
The Northwest Regional Office includes Armstrong and Indiana Counties for Title V permitting purposes, as well as Butler, Clarion, Crawford, Elk, Erie, Forest, Jefferson, Lawrence, McKean, Mercer, and Venango Counties.
We count 64 active major sources of air pollution in this region. Three of those 64 facilities have had renewal applications for their Title V Operating Permit pending for more than 18 months:
DEP’s Northcentral Region includes Bradford, Cameron, Centre, Clearfield, Clinton, Columbia, Lycoming, Montour, Northumberland, Potter, Snyder, Sullivan, Tioga, and Union Counties. We counted 49 major sources of air pollution in this region. None of them have a renewal application that has been pending for more than 18 months.
Only one site in the Northcentral Region has had an application to renew its Title V Operating Permit pending for more than 18 months:
DEP’s Southcentral Region includes Adams, Bedford, Berks, Blair, Cumberland, Dauphin, Franklin, Fulton, Huntington, Juniata, Lancaster, Lebanon, Mifflin, Perry, and York Counties. We counted 118 active major sources of air pollution in the region, none of which have had a renewal application for a Title V Operating Permit pending for more than 18 months.
All major sources in DEP’s Southcentral Region either have a current Title V Operating Permit or submitted a renewal application within the last 18 months.
DEP’s Northeast Region includes Carbon, Lackawanna, Lehigh, Luzerne, Monroe, Northampton, Pike, Schuykill, Susquehanna, Wayne, and Wyoming Counties. We counted 59 active major sources of air pollution in those counties, four of which have had applications for their Title V Operating Permits pending for at least 18 months:
Worth noting: DEP’s eFACTS website (which tracks the status of facility permits) does not show that Aptim/Keystone Recovery Throop, EPP Glendon, or Wheelabrator Frackville have applications to renew or replace their operating permits pending as of May 25, 2023. As a reminder, the regs stipulate that a facility violates the air pollution laws if it continues to operate without submitting a timely application to renew or replace its operating permit.
DEP’s Southeast Region includes Bucks, Chester, Delaware, and Montgomery Counties for purposes of permitting sources of air pollution (Philadelphia’s Air Management Services administers the Title V permitting program for facilities located in Philadelphia).
We counted 80 active major sources of air pollution in the Southeast Region, three of which have had renewal applications for Title V Operating Permits pending for more than 18 months:
Worth noting and repeating: DEP’s eFACTS website does not show that the Darby Creek Tank Farm had an application to renew or replace its operating permit pending as of May 25, 2023. Again: The regulations are clear on this point - a source violates air pollution laws if it continues to operate without submitting a timely application to renew or replace its operating permit.
Here’s a summary of what the permit backlogs at ACHD and DEP’s regional offices have looked like since 2018:
Each Title V Operating Permit renewal application presents (at least potentially) a unique situation, so it is difficult to generalize about causes and solutions for the backlogs that continue to exist in Allegheny County and some DEP regions.
However, with backlogs remaining - and even increasing - two years after DEP and Allegheny County introduced increased permitting fees, it seems increasingly unlikely that insufficient fee revenue caused the backlogs and that increased fee revenue will resolve them.
“We hope that the regulatory agencies take a hard look at how they are allocating personnel and resources and find a way to do a better job of processing permit applications in a timely manner as the Clean Air Act requires,” Baillie said.