## Facts

- Title V of the Clean Air Act requires major stationary sources to obtain operating permits and authorizes EPA to approve state-run Title V permitting programs.
- In 1993, Texas submitted a proposed Title V program to EPA.
- EPA identified multiple deficiencies and granted Texas only interim approval in 1996, conditioned on Texas correcting specified problems.
- Texas submitted revisions intended to cure the deficiencies identified during the interim-approval process.
- During further review, EPA and commenters identified additional deficiencies not included in the 1996 interim-approval deficiency list.
- Environmental groups and an individual petitioner objected to full approval, arguing Texas still had unresolved deficiencies and that EPA could not fully approve a noncompliant program.
- In December 2001, EPA granted full approval, finding Texas had corrected the deficiencies tied to interim approval, while indicating other concerns could be handled through separate mechanisms (including potential notices of deficiency).
- Petitioners sought direct review in the Fifth Circuit, challenging (1) EPA’s full-approval decision and (2) EPA’s refusal to issue notices of deficiency regarding alleged remaining shortcomings.

## Issues

1. Whether Title V permits EPA to grant full approval to a state program once the state corrects the deficiencies identified at interim approval, despite later-identified deficiencies that remain uncorrected.
2. Whether the Clean Air Act requires EPA to issue notices of deficiency for every alleged shortcoming in an approved Title V program.

## Decision

- The Fifth Circuit denied the petitions for review.
- The court upheld EPA’s full approval of the Texas Title V program.
- The court held the statute did not unambiguously bar EPA’s interpretation that full approval may follow correction of interim-approval deficiencies, with other issues addressed through separate statutory tools.
- Applying Chevron, the court concluded EPA’s interpretation was reasonable given Title V’s structure and cooperative federalism design.
- The court upheld EPA’s decision not to issue notices of deficiency, concluding the statute did not impose a nondiscretionary duty to issue a notice for every alleged problem.

## Legal Principles

- When Title V is ambiguous about the conditions for full approval of a state permitting program, EPA’s reasonable interpretation is entitled to Chevron deference.
- EPA may grant full approval to a state Title V program upon correction of deficiencies identified in the interim-approval process, even if other deficiencies are later identified, so long as EPA’s approach is reasonable under the statute.
- Clean Air Act notice-of-deficiency provisions confer authority on EPA but do not clearly require EPA to issue a notice of deficiency for every asserted defect; EPA retains enforcement discretion in deciding whether and when to issue a notice.

## Conclusion

The Fifth Circuit sustained EPA’s decision to fully approve Texas’s Title V program after Texas remedied the interim-approval deficiencies and held that EPA had discretion, rather than a mandatory duty, to issue notices of deficiency for other alleged shortcomings.


Public Citizen, Inc. v. EPA, 343 F.3d 449 (5th Cir. 2003)