The U.S. Environmental Protection Agency (U.S. EPA) issued the final rule “Clarifying the Scope of ‘Applicable Requirements’ Under State Operating Permit Programs and the Federal Operating Permit Program,” on September 25, 2026. This final rule updates Title V regulations to clarify what is considered an “applicable requirement” and what applicable requirements established in other Clean Air Act (CAA) programs may be reviewed, modified, and/or implemented through the Title V operating permit program. The rule was effective on October 26, 2026.
What is Title V?
Title V was established as part of the 1990 CAA amendments and created an operating permit program for major sources of air pollution that combines applicable requirements established under other CAA programs. A Title V major source is a stationary source with the potential to emit 100 tons per year (tpy) or more of a regulated pollutant, 10 tpy of more of a single hazardous air pollutant (HAP), or 25 tpy or more of all HAPs, with lower thresholds in nonattainment areas. Responsibility for the program is divided between the states and U.S. EPA, where states and local agencies generally issue permits with oversight by U.S. EPA. The Title V operating permit regulations at 40 CFR Parts 70 and 71 require facilities to monitor and report their compliance with air quality regulations, while providing opportunities for public review and comment during Title V permit actions (e.g., modifications or renewals). Title V is used to consolidate requirements from other CAA programs into one federally enforceable operating permit, but not to change these applicable requirements or create new requirements (although a Title V permit may add monitoring requirements to assure compliance with applicable requirements).
What Was Finalized in This Rule?
The rule defines an “applicable requirement” as the substantive requirements of other CAA programs that must be incorporated into a Title V permit and with which the permit must assure compliance. Therefore, requirements that are not derived from the CAA and “state-only” requirements are not subject to Title V permitting. Additionally, not all programs within the CAA constitute applicable requirements. For example, requirements for sources that are excluded from the definition of stationary source (e.g., units subject to Title II mobile source requirements) are not considered Title V applicable requirements. Some other CAA programs that are relevant to stationary sources are not Title V applicable requirements because Congress did not intend for them to be implemented through the Title V program. For example, the General Duty Clause in CAA Section 112(r)(1) that concerns the prevention of accidental release of hazardous substances is enforceable only by the federal government, meaning that this clause cannot be enforced by citizens or the states through Title V permits.
The rule also solidifies U.S. EPA’s approach to the Title V permitting process and the handling of petitions during this process. By defining Title V applicable requirements and how requirements should be included in Title V permits, the rule creates a consistent approach for future Title V permitting unlike how this process was handled in the past.
The following requirements should be included in Title V permits without further review when they are established through their own process and include public notice and the opportunity for comment and judicial review:
- Self-implementing or self-executing requirements that consist of prescribed emissions standards, operational limitations, testing, monitoring, recordkeeping, reporting and other compliance requirements (i.e., New Source Performance Standards [NSPS], National Emission Standards for Hazardous Air Pollutants [NESHAP], and rules in U.S. EPA-approved State Implementation Plans [SIP]).
- All New Source Review (NSR) permits issued under a SIP or FIP.
The Title V permitting process should only be utilized in these instances if the applicability of these requirements to a particular source has not been officially established prior to Title V permit issuance or to determine if additional compliance assurance provisions are needed. The National Ambient Air Quality Standards (NAAQS) are not applicable requirements because they do not apply directly to sources. However, Title V permits may include source-specific requirements meant to ensure compliance with NAAQS.
Minor NSR permits that did not go through a public review process may be reviewed during the Title V permitting process. However, while NSR permits issued without public notice may be subject to Title V oversight, the U.S. EPA is not requiring or encouraging permits to go through this process. Because a core purpose of Title V is to consolidate applicable requirements established under other CAA programs and not to impose new requirements, the intent of Title V is not to alter the results of an NSR program. Additionally, as long as an NSR permit was subject to public notice, reevaluating NSR permits through Title V would not help address Title V objectives. As it relates to Title V, only the proper inclusion of terms and conditions of a noticed NSR permit or whether there is sufficient monitoring, recordkeeping, and reporting to assure compliance with these terms and conditions should be considered.
Public comment and judicial review on whether a facility will choose a minor versus major NSR permit should be made through Title I-adjudication rather than Title V. If NSR permits are fully discussed during the Title I process, then there is no need to rediscuss them again as part of the Title V permitting process. Additionally, regardless of whether the NSR and Title V permits are issued sequentially, concurrently, or in the same document, the same approach will be maintained. However, NSR related terms should be easily distinguishable from any non-NSR related terms. Otherwise, it cannot be concluded that the Title I permit has established all NSR-related requirements and the Title V process may be used to review the NSR permit terms.
How Does this Rule Affect your Facility?
Facilities can use this rule to predict when to expect petitions on past projects through the Title V process. The rule provides clarity on what requirements are considered Title V applicable requirements and when an NSR permit might be reviewed as part of a Title V modification or renewal. From this, facilities can gain more confidence when engaging in the Title V process, allowing for less revisions when completing Title V permit applications and making the process much smoother. Whether a minor NSR permit is subject to public review depends on the state. If your state allows permits by rule or issues minor NSR permits without a public review process, you may receive comments on a past project when you incorporate it into your Title V permit. ALL4 can help facilities better understand Title V and NSR permitting processes across the U.S., what to expect when starting a permitting project, and how to respond to public comments on draft permits. For more information or for assistance with your next permitting project, contact your ALL4 project manager.
