Sierra Club, et al. v. United States Environmental Protection Agency

Background: The Clean Air Act required all major sources of air pollution to be controlled by Title V operating permits by 1998. Of Wisconsin's 610 major sources of air pollution, 280 of them are currently operating without Title V permits. Title V was added to the 1970 CAA as a part of the 1990 Amendments. Title V does not impose new requirements on major sources, rather it is an important tool to improve oversight and enforcement of all CAA requirements. For example, Title V requires the states to issue each major source a single permit containing all applicable requirements. In addition, Title V added new monitoring, record-keeping and reporting requirements, as well as required all major sources to certify annually whether or not they are in compliance with their permits. In short, Title V offers substantial benefits for citizens trying to determine the requirements that apply to a particular smoke stack and whether that smoke stack is in compliance with all applicable CAA requirements.

Wisconsin's Title V program fails to meet minimum federal requirements in at least four important ways:

1. Wisconsin has failed to issue all permits by the federal deadline of April 5, 1998. As of October 1, 2002 there were 280 permits still not issued. This means those 280 major sources of air pollution are operating without all the safeguards promised by Title V. Wisconsin has the worst permit issuance rate in the Midwest and the worst in the Nation for states with similarly large numbers of major sources.
   
   Wisconsin is failing to charge major sources high enough permit fees thereby denying DNR the funds necessary to administer the program. This lack of resources is a primary reason why Wisconsin has such a large permit backlog.
   
   Wisconsin is using federal grant monies intended for other purposes to support its Title V program in violation of federal law.
   
2. Wisconsin is not enforcing those permits it has issued. DNR has a backlog of 169 unresolved cases.

When a state fails to adequately administer and enforce its Title V program, US EPA is supposed to step in and remedy the situation by issuing a notice of deficiency and giving the state a window of time to remedy the problem. If the state does not remedy the problem EPA is obligated after 18 months to impose sanctions, including withholding federal transportation funding. Two years after giving notice and if the deficiency is still not resolved EPA is required to step in and administer the program itself.

On Monday, December 16, 2002, Midwest Environmental Advocates filed a petition with the United States Environmental Protection Agency (EPA) requesting the EPA to order Wisconsin to remedy the serious failings of the State's operating permits program. This petition requests US EPA to comply with its oversight obligations and issue Wisconsin a Notice of Deficiency for each of the violations. Among other things, we are asking that the state raise the permit fees for polluting facilities so the DNR will have adequate resources to run the Title V permit program.

View the press release [121602.pdf]
View the petition [epapetition.pdf]
View a list of facilities that lack Title V operating permits [unpermittedT5.pdf]

View a map of unpermitted major sources of air pollution in Wisconsin [unpermitted map.jpg]

Link to EPA's webpage about Title V Permit Issuance Rates in Region 5

Listen to a December 16, 2002 WPR story on the issue:[ TitleV_121602.ram]

In response to our petition, on March 4, 2004, the EPA issued a Notice of Deficiency to the state of Wisconsin for its failure to adequately enforce its Title V program.  The deficiencies found by the EPA include:

• The fees paid by polluters are not adequate to cover the costs of the program;
• Wisconsin has allowed major sources of air pollution to operate without permits; 
• Wisconsin has failed to properly implement the program because it has issued permits that do not contain all applicable requirements and that fail to make certain requirements federally enforceable.

If the deficiencies are not addressed within two years, Wisconsin will lose the opportunity to run the program and the federal government will take responsibility for issuing permits.  This is an important step in ensuring that the Governor and the Legislature restore adequate funding for this necessary program and keep our air clean. MEA continues to advocate for DNR to correct the program deficiencies described by the EPA.

To read the Wisconsin State Journal article on the Notice of Deficiency, click here

On February 2, 2005, Midwest Environmental Advocates and the Sierra Club - John Muir Chapter released a press release commending the state for issuing long overdue permits to Wisconsin's major air polluters. While these newly issued permits are a step closer to cleaner air, Midwest Environmental Advocates is calling on the State Legislature to fully fund the Title V Program in the upcoming State Budget by increasing permit fees.

To read the press release, click here.

Status: In the spring of 2005, the EPA finally found that the DNR had satisfied the notice of deficiency and got its air program back on track.