U.S. Code » Title 42 » Chapter CHAPTER 85— AIR POLLUTION PREVENTION AND CONTROL › Subchapter SUBCHAPTER V— PERMITS

42 U.S.C. § 7661d

Notification to Administrator and contiguous States

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(a) Transmission and notice(1) Each permitting authority—(A) shall transmit to the Administrator a copy of each permit application (and any application for a permit modification or renewal) or such portion thereof, including any compliance plan, as the Administrator may require to effectively review the application and otherwise to carry out the Administrator’s responsibilities under this chapter, and(B) shall provide to the Administrator a copy of each permit proposed to be issued and issued as a final permit.(2) The permitting authority shall notify all States—(A) whose air quality may be affected and that are contiguous to the State in which the emission originates, or(B) that are within 50 miles of the source,of each permit application or proposed permit forwarded to the Administrator under this section, and shall provide an opportunity for such States to submit written recommendations respecting the issuance of the permit and its terms and conditions. If any part of those recommendations are not accepted by the permitting authority, such authority shall notify the State submitting the recommendations and the Administrator in writing of its failure to accept those recommendations and the reasons therefor.(b) Objection by EPA(1) If any permit contains provisions that are determined by the Administrator as not in compliance with the applicable requirements of this chapter, including the requirements of an applicable implementation plan, the Administrator shall, in accordance with this subsection, object to its issuance. The permitting authority shall respond in writing if the Administrator (A) within 45 days after receiving a copy of the proposed permit under subsection (a)(1), or (B) within 45 days after receiving notification under subsection (a)(2), objects in writing to its issuance as not in compliance with such requirements. With the objection, the Administrator shall provide a statement of the reasons for the objection. A copy of the objection and statement shall be provided to the applicant.(2) If the Administrator does not object in writing to the issuance of a permit pursuant to paragraph (1), any person may petition the Administrator within 60 days after the expiration of the 45-day review period specified in paragraph (1) to take such action. A copy of such petition shall be provided to the permitting authority and the applicant by the petitioner. The petition shall be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the permitting agency (unless the petitioner demonstrates in the petition to the Administrator that it was impracticable to raise such objections within such period or unless the grounds for such objection arose after such period). The petition shall identify all such objections. If the permit has been issued by the permitting agency, such petition shall not postpone the effectiveness of the permit. The Administrator shall grant or deny such petition within 60 days after the petition is filed. The Administrator shall issue an objection within such period if the petitioner demonstrates to the Administrator that the permit is not in compliance with the requirements of this chapter, including the requirements of the applicable implementation plan. Any denial of such petition shall be subject to judicial review under section 7607 of this title. The Administrator shall include in regulations under this subchapter provisions to implement this paragraph. The Administrator may not delegate the requirements of this paragraph.(3) Upon receipt of an objection by the Administrator under this subsection, the permitting authority may not issue the permit unless it is revised and issued in accordance with subsection (c). If the permitting authority has issued a permit prior to receipt of an objection by the Administrator under paragraph (2) of this subsection, the Administrator shall modify, terminate, or revoke such permit and the permitting authority may thereafter only issue a revised permit in accordance with subsection (c).(c) Issuance or denial

If the permitting authority fails, within 90 days after the date of an objection under subsection (b), to submit a permit revised to meet the objection, the Administrator shall issue or deny the permit in accordance with the requirements of this subchapter. No objection shall be subject to judicial review until the Administrator takes final action to issue or deny a permit under this subsection.

(d) Waiver of notification requirements(1) The Administrator may waive the requirements of subsections (a) and (b) at the time of approval of a permit program under this subchapter for any category (including any class, type, or size within such category) of sources covered by the program other than major sources.(2) The Administrator may, by regulation, establish categories of sources (including any class, type, or size within such category) to which the requirements of subsections (a) and (b) shall not apply. The preceding sentence shall not apply to major sources.(3) The Administrator may exclude from any waiver under this subsection notification under subsection (a)(2). Any waiver granted under this subsection may be revoked or modified by the Administrator by rule.(e) Refusal of permitting authority to terminate, modify, or revoke and reissue

If the Administrator finds that cause exists to terminate, modify, or revoke and reissue a permit under this subchapter, the Administrator shall notify the permitting authority and the source of the Administrator’s finding. The permitting authority shall, within 90 days after receipt of such notification, forward to the Administrator under this section a proposed determination of termination, modification, or revocation and reissuance, as appropriate. The Administrator may extend such 90 day period for an additional 90 days if the Administrator finds that a new or revised permit application is necessary, or that the permitting authority must require the permittee to submit additional information. The Administrator may review such proposed determination under the provisions of subsections (a) and (b). If the permitting authority fails to submit the required proposed determination, or if the Administrator objects and the permitting authority fails to resolve the objection within 90 days, the Administrator may, after notice and in accordance with fair and reasonable procedures, terminate, modify, or revoke and reissue the permit.

(July 14, 1955, ch. 360, title V, § 505, as added Pub. L. 101–549, title V, § 501, Nov. 15, 1990, 104 Stat. 2643.)
Notes of Decisions
Cited in 62 cases (3 in the last 5 years), 1994–2026 · leading case: Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738 (9th Cir. 2008).
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Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738 (9th Cir. 2008). · cites it 16× “Such a system would be entirely unworkable and underscores why Plaintiffs are incorrect when they contend that 42 U.S.C. § 7661d created "an additional" and not a superseding enforcement scheme for challenges to the validity under the CAA of Title V permits.”
Cal. Cmty. Against Toxics v. Envtl. Prot. Agency, 934 F.3d 627 (D.C. Cir. 2019). · cites it 6× “(citing 42 U.S.C. § 7661d). For reasons now explained, we hold that the Wehrum Memo does not have a single direct and appreciable legal consequence.”
Sierra Club v. Johnson, 541 F.3d 1257 (11th Cir. 2008). · cites it 11× “First, the EPA Administrator is required to object to a permit if the Administrator determines it is not in compliance with the law.”
The Sierra Club v. Stephen L. Johnson, 436 F.3d 1269 (11th Cir. 2006). · cites it 5× “See 42 U.S.C. § 7661d(a)(l); 40 C.F.R. § 70.8 (a)(1).”
MacClarence v. United States Env't Prot. Agency, 596 F.3d 1123 (9th Cir. 2010). · cites it 11× “42 U.S.C. § 7661d; 40 C.F.R. § 70.8 (d). After a permitting authority receives an application for a Title V permit, it is required to submit a copy of the permit application and the “permit proposed to be issued and issued as a final permit” to EPA, 42 U.”
Sierra Club v. Otter Tail Power Co., 615 F.3d 1008 (8th Cir. 2010). · cites it 5× “3 Otter Tail Power Company operates the plant, which it jointly owns with MDU Resources Group and Northwestern Energy (the three appellees will be collectively referred to as Otter Tail).”
Citizens Against Ruining the Env't v. Env't Prot. Agency, 535 F.3d 670 (7th Cir. 2008). · cites it 4× “See 42 U.S.C. § 7661d(b)(2). The EPA, on the other hand, maintains that the Administrator reasonably exercised his discretion in determining that the petitioners did not “demonstrate” a violation because their petitions called for further investigation and analysis, a task the…”
United States v. EME Homer City Generation, L.P, 727 F.3d 274 (3rd Cir. 2013). · cites it 5× “The permitting authority must give the states an opportunity to review the application or proposed permit and submit written recommendations; if the authority declines to adopt any state recommendation, it must notify that state and the EPA and explain its reasoning.”
Sierra Club v. EPA, 964 F.3d 882 (10th Cir. 2020). · cites it 4× “” 42 U.S.C. § 7661d(b)(1). PacifiCorp relies on Sierra Club v.”
LaFleur v. Whitman, 300 F.3d 256 (2d Cir. 2002). · cites it 6× “See 42 U.S.C. § 7661d. Additionally, the CAA provides for judicial review of the Administrator’s decision through petitions for review to the appropriate federal Court of Appeals.”
Casey Voigt v. U.S. E.P.A., 46 F.4th 895 (8th Cir. 2022). · cites it 13× “After receiving the Voigts’ comments, on October 2, 2018, the NDDOH sent the proposed permit to the EPA for review pursuant to 42 U.S.C. § 7661d(a) and 40 C.F.R. § 70.8 (a), specifically seeking the EPA’s position -5- on whether Coyote Creek Mine and Coyote Station are a single…”
Nucor Steel-Arkansas v. Big River Steel, LLC, 825 F.3d 444 (8th Cir. 2016). · cites it 4× “(citing 42 U.S.C. § 7661d). Arkansas has delegated its authority to issue precon-struction PSD permits and Title V operating permits in the state to the ADEQ through the Arkansas Water and Air Pollution Control Act.”
Show all 62 citing cases →
— 42 U.S.C. § 7661d(a) — 6 cases
Sierra Club v. Johnson, 541 F.3d 1257 (11th Cir. 2008). “First, the EPA Administrator is required to object to a permit if the Administrator determines it is not in compliance with the law.”
LaFleur v. Whitman, 300 F.3d 256 (2d Cir. 2002). “See 42 U.S.C. § 7661d. Additionally, the CAA provides for judicial review of the Administrator’s decision through petitions for review to the appropriate federal Court of Appeals.”
Sierra Club v. Johnson, 623 F. Supp. 2d 31 (D.D.C. 2009).
Casey Voigt v. U.S. E.P.A., 46 F.4th 895 (8th Cir. 2022). “After receiving the Voigts’ comments, on October 2, 2018, the NDDOH sent the proposed permit to the EPA for review pursuant to 42 U.S.C. § 7661d(a) and 40 C.F.R. § 70.8 (a), specifically seeking the EPA’s position -5- on whether Coyote Creek Mine and Coyote Station are a single…”
United States v. East Kentucky Power Coop., Inc., 498 F. Supp. 2d 1010 (E.D. Ky. 2007).
— 42 U.S.C. § 7661d(a)(1) — 6 cases
Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738 (9th Cir. 2008). “Such a system would be entirely unworkable and underscores why Plaintiffs are incorrect when they contend that 42 U.S.C. § 7661d created "an additional" and not a superseding enforcement scheme for challenges to the validity under the CAA of Title V permits.”
Env't Integrity Proj v. EPA, 969 F.3d 529 (5th Cir. 2020).
Env't Integrity Proj v. EPA, 960 F.3d 236 (5th Cir. 2020).
Casey Voigt v. U.S. E.P.A., 46 F.4th 895 (8th Cir. 2022). “After receiving the Voigts’ comments, on October 2, 2018, the NDDOH sent the proposed permit to the EPA for review pursuant to 42 U.S.C. § 7661d(a) and 40 C.F.R. § 70.8 (a), specifically seeking the EPA’s position -5- on whether Coyote Creek Mine and Coyote Station are a single…”
Louisiana Dept of Env Quality v. EPA (5th Cir. 2013).
— 42 U.S.C. § 7661d(a)(1)(A) — 1 case
Nucor Steel-Arkansas v. Big River Steel, LLC, 825 F.3d 444 (8th Cir. 2016). “(citing 42 U.S.C. § 7661d). Arkansas has delegated its authority to issue precon-struction PSD permits and Title V operating permits in the state to the ADEQ through the Arkansas Water and Air Pollution Control Act.”
— 42 U.S.C. § 7661d(a)(1)(B) — 1 case
MacClarence v. Epa (9th Cir. 2010).
— 42 U.S.C. § 7661d(a)(l) — 5 cases
Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738 (9th Cir. 2008). “Such a system would be entirely unworkable and underscores why Plaintiffs are incorrect when they contend that 42 U.S.C. § 7661d created "an additional" and not a superseding enforcement scheme for challenges to the validity under the CAA of Title V permits.”
The Sierra Club v. Stephen L. Johnson, 436 F.3d 1269 (11th Cir. 2006). “See 42 U.S.C. § 7661d(a)(l); 40 C.F.R. § 70.8 (a)(1).”
United States v. EME Homer City Generation, L.P, 727 F.3d 274 (3rd Cir. 2013). “The permitting authority must give the states an opportunity to review the application or proposed permit and submit written recommendations; if the authority declines to adopt any state recommendation, it must notify that state and the EPA and explain its reasoning.”
Louisiana Dep't of Env't Quality v. United States Env't Prot. Agency, 730 F.3d 446 (5th Cir. 2013).
Zen-Noh Grain Corp. v. Jackson, 943 F. Supp. 2d 657 (E.D. La. 2013).
— 42 U.S.C. § 7661d(a)(l)(A) — 1 case
Nucor Steel-Arkansas v. Big River Steel, LLC, 93 F. Supp. 3d 983 (E.D. Ark. 2015).
— 42 U.S.C. § 7661d(a)(l)(B) — 1 case
MacClarence v. United States Env't Prot. Agency, 596 F.3d 1123 (9th Cir. 2010). “42 U.S.C. § 7661d; 40 C.F.R. § 70.8 (d). After a permitting authority receives an application for a Title V permit, it is required to submit a copy of the permit application and the “permit proposed to be issued and issued as a final permit” to EPA, 42 U.”
— 42 U.S.C. § 7661d(b) — 16 cases
Cal. Cmty. Against Toxics v. Envtl. Prot. Agency, 934 F.3d 627 (D.C. Cir. 2019). “(citing 42 U.S.C. § 7661d). For reasons now explained, we hold that the Wehrum Memo does not have a single direct and appreciable legal consequence.”
New York Pub. Interest Rsch. Grp., Inc. v. Stephen L. Johnson, in His Capacity as Adm'r, United States Env't Prot. Agency, 427 F.3d 172 (2d Cir. 2005).
Sierra Club v. Georgia Power Co., 443 F.3d 1346 (11th Cir. 2006).
Ocean Cnty. Landfill Corp. v. United States Env't Prot. Agency, 631 F.3d 652 (3rd Cir. 2011).
United States v. Murphy Oil USA, Inc., 143 F. Supp. 2d 1054 (W.D. Wis. 2001).
— 42 U.S.C. § 7661d(b)(1) — 12 cases
Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738 (9th Cir. 2008). “Such a system would be entirely unworkable and underscores why Plaintiffs are incorrect when they contend that 42 U.S.C. § 7661d created "an additional" and not a superseding enforcement scheme for challenges to the validity under the CAA of Title V permits.”
Sierra Club v. EPA, 964 F.3d 882 (10th Cir. 2020). “” 42 U.S.C. § 7661d(b)(1). PacifiCorp relies on Sierra Club v.”
Nucor Steel-Arkansas v. Big River Steel, LLC, 825 F.3d 444 (8th Cir. 2016). “(citing 42 U.S.C. § 7661d). Arkansas has delegated its authority to issue precon-struction PSD permits and Title V operating permits in the state to the ADEQ through the Arkansas Water and Air Pollution Control Act.”
Casey Voigt v. U.S. E.P.A., 46 F.4th 895 (8th Cir. 2022). “After receiving the Voigts’ comments, on October 2, 2018, the NDDOH sent the proposed permit to the EPA for review pursuant to 42 U.S.C. § 7661d(a) and 40 C.F.R. § 70.8 (a), specifically seeking the EPA’s position -5- on whether Coyote Creek Mine and Coyote Station are a single…”
Sierra Club v. Otter Tail Corp., 608 F. Supp. 2d 1120 (D.S.D. 2009).
— 42 U.S.C. § 7661d(b)(2) — 46 cases
Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738 (9th Cir. 2008). “Such a system would be entirely unworkable and underscores why Plaintiffs are incorrect when they contend that 42 U.S.C. § 7661d created "an additional" and not a superseding enforcement scheme for challenges to the validity under the CAA of Title V permits.”
Sierra Club v. Johnson, 541 F.3d 1257 (11th Cir. 2008). “First, the EPA Administrator is required to object to a permit if the Administrator determines it is not in compliance with the law.”
The Sierra Club v. Stephen L. Johnson, 436 F.3d 1269 (11th Cir. 2006). “See 42 U.S.C. § 7661d(a)(l); 40 C.F.R. § 70.8 (a)(1).”
MacClarence v. United States Env't Prot. Agency, 596 F.3d 1123 (9th Cir. 2010). “42 U.S.C. § 7661d; 40 C.F.R. § 70.8 (d). After a permitting authority receives an application for a Title V permit, it is required to submit a copy of the permit application and the “permit proposed to be issued and issued as a final permit” to EPA, 42 U.”
Citizens Against Ruining the Env't v. Env't Prot. Agency, 535 F.3d 670 (7th Cir. 2008). “See 42 U.S.C. § 7661d(b)(2). The EPA, on the other hand, maintains that the Administrator reasonably exercised his discretion in determining that the petitioners did not “demonstrate” a violation because their petitions called for further investigation and analysis, a task the…”
— 42 U.S.C. § 7661d(b)(3) — 6 cases
Town of Babylon v. Fed. Hous. Fin. Agency, 699 F.3d 221 (2d Cir. 2012).
Sierra Club v. Johnson, 541 F.3d 1257 (11th Cir. 2008). “First, the EPA Administrator is required to object to a permit if the Administrator determines it is not in compliance with the law.”
Nucor Steel-Arkansas v. Pruitt, 246 F. Supp. 3d 288 (D.D.C. 2017).
Nw. Env't Def. Ctr. v. Cascade Kelly Holdings LLC, 155 F. Supp. 3d 1100 (D. Or. 2015).
Env't Action Network v. Env't Qual., 857 So. 2d 541 (La. Ct. App. 2003).
— 42 U.S.C. § 7661d(b)(l) — 11 cases
Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738 (9th Cir. 2008). “Such a system would be entirely unworkable and underscores why Plaintiffs are incorrect when they contend that 42 U.S.C. § 7661d created "an additional" and not a superseding enforcement scheme for challenges to the validity under the CAA of Title V permits.”
United States v. EME Homer City Generation, L.P, 727 F.3d 274 (3rd Cir. 2013). “The permitting authority must give the states an opportunity to review the application or proposed permit and submit written recommendations; if the authority declines to adopt any state recommendation, it must notify that state and the EPA and explain its reasoning.”
The Sierra Club v. Stephen L. Johnson, 436 F.3d 1269 (11th Cir. 2006). “See 42 U.S.C. § 7661d(a)(l); 40 C.F.R. § 70.8 (a)(1).”
Citizens Against Ruining the Env't v. Env't Prot. Agency, 535 F.3d 670 (7th Cir. 2008). “See 42 U.S.C. § 7661d(b)(2). The EPA, on the other hand, maintains that the Administrator reasonably exercised his discretion in determining that the petitioners did not “demonstrate” a violation because their petitions called for further investigation and analysis, a task the…”
Sierra Club v. Johnson, 541 F.3d 1257 (11th Cir. 2008). “First, the EPA Administrator is required to object to a permit if the Administrator determines it is not in compliance with the law.”
— 42 U.S.C. § 7661d(c) — 7 cases
Sierra Club v. Johnson, 500 F. Supp. 2d 936 (N.D. Ill. 2007).
Ocean Cnty. Landfill Corp. v. United States Env't Prot. Agency, 631 F.3d 652 (3rd Cir. 2011).
Louisiana Dep't of Env't Quality v. United States Env't Prot. Agency, 730 F.3d 446 (5th Cir. 2013).
Wildearth Guardians v. Jackson, 885 F. Supp. 2d 1112 (D.N.M. 2012).
Sierra Club v. Johnson, 623 F. Supp. 2d 31 (D.D.C. 2009).
— 42 U.S.C. § 7661d(e) — 3 cases
United States v. EME Homer City Generation, L.P, 727 F.3d 274 (3rd Cir. 2013). “The permitting authority must give the states an opportunity to review the application or proposed permit and submit written recommendations; if the authority declines to adopt any state recommendation, it must notify that state and the EPA and explain its reasoning.”
Sierra Club v. Johnson, 500 F. Supp. 2d 936 (N.D. Ill. 2007).
Finger Lakes Zero Waste Coal. v. EPA (2d Cir. 2018).
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