William Hefner, The Environmental Law Group Ltd, Clarifying Title V Permit Condition Language and Compliance Certifications: Why Language and Documentation Matter, Midwest Environmental Compliance Conference, Chicago, October 29-30, 2015

1. William Hefner
The Environmental Law Group, Ltd.

2. Thesis Statement
The time to think about
compliance certification is long
before you’re certifying
compliance

3. Compliance Certifications: What and Why
 Federal and state regulatory requirement
 Responsible official certifies compliance
with terms and conditions of Title V or
FESOP permit
 Purpose: forced cognizance and diligence
 “Can’t not look”

4. What must be “certified”?
 Generally, certifying compliance with all
permit terms and conditions for time period
 Or identifying exceptions
 “Responsible official” must certify as true,
accurate and complete

5. Standards and Obligations
Specific language and standards vary
Two aspects common to all, regardless:
Requires some level of inquiry; and
Being clear on basis for certification

6. MINNESOTA

7. MICHIGAN

8. WISCONSIN

9. INDIANA

10. ILLINOIS

11. OHIO

12. Why think about certification early on?
 Because consequences of improper, inaccurate or
false certification are great
 Additional violation
 Civil or criminal enforcement (or both)
 Against permittee, RO or both
 Ultimately in everyone’s interests to think all this
through at permitting stage

13. How to assure valid certifications?
 Clear certification provisions and early conversations =
best way to avoid certification issues
 Questions during permitting process:
 Permittee: Clear on what certifying? Plan for assurance?
 RO: What system to satisfy my certification obligations?
 Facility staff: How to inform/assure RO?
 Regulator and Permittee: Clear provisions? Same page
regarding what’s expected?

14. Example 1: SO2 Limit
 Draft permit with SO2 limit, but silent re:
demonstration or compliance
 TSD says use of natural gas with particular sulfur
levels will suffice
 Fix: Final permit terms:
 NG with X% sulfur = compliance with limit
 Recordkeeping requirement for sulfur invoices,
etc.

15. Example 2: Stack Test
 Permit requires annual stack test to demonstrate
compliance with emission limit.
 Fuel or other factor variable; single stack test may not
be representative.
 Possible fixes:
 Be explicit in basis for certification
 Permittee and regulator discuss up-front how to address,
be sure “compliance certification” captures

16. Other examples
New equipment: when do limits apply?
Continuous monitoring: limits on Day 1
or after certification?

17. Questions?
www.envirolawgroup.com
Bill Hefner
(612) 623-2362