Checklist · Environmental

Obtaining an Air Permit and Responding to an Air Enforcement Action: A Practical Checklist

42 U.S.C. § 7407

Type
Checklist
Jurisdiction
National
Date
2025-05-26
Topic
Environmental

A sequenced checklist for air permitting and enforcement response. Section A establishes the facility baseline that every other step depends on. Section B runs new source review applicability before any project. Section C prepares a preconstruction permit application, and Section D handles the operating permit. Section E builds the monitoring and recordkeeping system. Section F handles deviations and the annual compliance certification. Section G responds to an information request, and Section H responds to a notice of violation. Section I handles a citizen suit notice. Section J is an annual self-audit, and Section K is air diligence for a facility acquisition.

Obtaining an Air Permit and Responding to an Air Enforcement Action: A Practical Checklist

Environmental > Air Quality and Emissions | Published 26 May 2025 - Updated 27 January 2026 | UpLaw - uplaw.us

How to use this

Section A is the foundation and must be current before anything else is useful. Sections B through D are permitting. Sections E and F are ongoing compliance. Sections G through I are enforcement response. The single most consequential item is number 14 — a written applicability analysis completed before a project is a defense, and one reconstructed afterward is an admission that nobody looked.

SECTION A — THE FACILITY BASELINE

☐ 1. Determine the attainment designation for every criteria pollutant for this location — 42 U.S.C. § 7407 — and the nonattainment classification where applicable — 42 U.S.C. § 7511.

☐ 2. Identify the state implementation plan provisions that apply — 42 U.S.C. § 7410, 40 C.F.R. Part 51, 40 C.F.R. Part 52. Old plan provisions are federally enforceable.

☐ 3. Build a current emissions inventory by unit: equipment, capacity, fuel, control devices, stack parameters, and emission factors used.

☐ 4. Compute potential to emit for every regulated pollutant, at maximum capacity, considering only federally enforceable limits.

☐ 5. Determine major source status separately for criteria pollutants and for hazardous air pollutants under 42 U.S.C. § 7412. The thresholds differ.

☐ 6. Identify every applicable performance standard — 42 U.S.C. § 7411, 40 C.F.R. Part 60 — and every hazardous pollutant standard — 40 C.F.R. Part 61, 40 C.F.R. Part 63.

☐ 7. Identify other applicable programs: risk management under 40 C.F.R. Part 68 · refrigerants under 40 C.F.R. Part 82 · greenhouse gas reporting under 40 C.F.R. Part 98 · product content under 40 C.F.R. Part 59.

☐ 8. Build a permit condition matrix: every condition, the record demonstrating compliance, the frequency, and the responsible person.

☐ 9. Inventory emergency generators with hour meters and a non-emergency operation policy.

☐ 10. Inventory synthetic minor limits and confirm a daily or monthly tracking system exists for each limiting parameter.

☐ 11. Confirm records retention meets the longest applicable period.

☐ 12. Identify the responsible official and confirm the delegation of authority is documented.

SECTION B — APPLICABILITY BEFORE A PROJECT

☐ 13. Trigger this section for any physical change or change in the method of operation — including replacements, upgrades, debottlenecking, fuel changes, and capacity increases.

☐ 14. ⚠️ Complete a written applicability analysis before construction begins. Include the emissions calculations, the baseline period selected and why, projected actual emissions, exclusions relied on, and the conclusion.

☐ 15. Determine whether the change is routine maintenance, repair, and replacement — and document the basis, including cost relative to replacement, frequency in the industry, purpose, and effect.

☐ 16. Compute the increase on the basis the applicable program uses. A falling hourly rate does not resolve an annual-tonnage inquiry — Environmental Defense v. Duke Energy Corp..

☐ 17. Evaluate netting against contemporaneous increases and decreases, and document the contemporaneous period used.

☐ 18. Evaluate any demand growth exclusion, with support.

☐ 19. If review is triggered in an attainment area, plan for 42 U.S.C. § 7475: control technology analysis, air quality analysis, monitoring, and public participation.

☐ 20. If review is triggered in a nonattainment area, plan for 42 U.S.C. § 7503: lowest achievable emission rate, offsets, statewide compliance certification, and an alternatives analysis.

☐ 21. Price offsets before pricing the project. In a severely classified area they can determine viability.

☐ 22. If concluding that review is not triggered based on a projection, establish the post-project tracking and reporting system the rules require.

SECTION C — PRECONSTRUCTION PERMIT APPLICATION

☐ 23. Assemble a precise equipment description: manufacturer, model, rated capacity, fuel, controls, stack parameters.

☐ 24. Prepare emissions calculations for every regulated pollutant with stated assumptions and sources.

☐ 25. Request a pre-application meeting. Ask what the agency expects, what modeling it wants, and which control technologies it considers available for this source category.

☐ 26. Conduct the control technology analysis in sequence: identify all available technologies · eliminate technically infeasible options with technical support · rank by effectiveness · evaluate energy, environmental, and economic impacts · select.

☐ 27. ⚠️ Do not eliminate an option as infeasible without support. This is the most common deficiency and the most common ground of challenge.

☐ 28. Agree the modeling protocol with the agency before running the model.

☐ 29. Address the additional impacts analysis — soils, vegetation, visibility, and growth.

☐ 30. File a complete application. The substantive clock does not start until completeness is determined.

☐ 31. Prepare for public comment: publish the application, consider an informal meeting, and anticipate objections on cumulative impacts, odor, and traffic.

☐ 32. Calendar the state administrative appeal deadline the day the permit issues.

☐ 33. Confirm local zoning approval separately. An air permit does not authorize a use that zoning prohibits.

SECTION D — THE OPERATING PERMIT

☐ 34. Determine whether an operating permit is required — 42 U.S.C. § 7661a, 40 C.F.R. Part 70, or the federal program at 40 C.F.R. Part 71.

☐ 35. Consider whether a synthetic minor permit is preferable, and model the operational constraint honestly before accepting limits.

☐ 36. In the application, identify every applicable requirement completely. The permit shield extends only to requirements identified or specifically determined not to apply.

☐ 37. Propose monitoring that is sufficient to assure compliance but that the facility can actually sustain. Over-promising monitoring creates deviations.

☐ 38. Confirm permit content requirements are addressed — 42 U.S.C. § 7661c.

☐ 39. Review the draft permit condition by condition against the matrix from item 8, and comment on anything unworkable before issuance.

☐ 40. Confirm the renewal timeline and calendar the application deadline years in advance.

☐ 41. Understand that federal petitions can reopen an issued permit.

☐ 42. Track permit modifications — administrative, minor, and significant — and use the correct route for each change.

SECTION E — MONITORING AND RECORDKEEPING

☐ 43. Build a monitoring plan covering every parameter the permit requires, with frequency, method, and record location.

☐ 44. Implement quality assurance: calibration schedules, certification, and drift checks.

☐ 45. Track data availability. ⚠️ Monitor downtime below a required availability threshold is itself a deviation.

☐ 46. Maintain parametric monitoring records where a surrogate demonstrates control device operation.

☐ 47. Calendar stack tests and submit protocols for approval in advance.

☐ 48. Maintain generator hour logs and a documented non-emergency operation policy.

☐ 49. Maintain coating, solvent, and material usage records supporting emissions calculations.

☐ 50. Maintain refrigerant service, leak rate, and technician certification records — 40 C.F.R. Part 82.

☐ 51. Maintain a complaint log with investigation and response documented. Odor complaints drive local enforcement even where emissions comply.

☐ 52. Confirm every record is retained for the longest applicable period and is retrievable.

SECTION F — DEVIATIONS AND CERTIFICATION

☐ 53. Maintain a deviation log capturing every departure from any permit term — including monitoring and recordkeeping terms, not just emission limits.

☐ 54. Report deviations on the schedule the permit requires.

☐ 55. Document corrective action for each deviation, including root cause.

☐ 56. Reconcile the deviation log, the semiannual reports, and the draft certification quarterly. Discrepancies found in December are much harder to fix than discrepancies found in April.

☐ 57. Have the responsible official read the permit before signing the annual certification.

☐ 58. For each condition, determine continuous or intermittent compliance, and if intermittent, identify the periods.

☐ 59. Confirm the signer holds documented delegated authority.

☐ 60. ⚠️ A knowingly false certification can be charged criminally under 42 U.S.C. § 7413. Build the record that supports the signature.

SECTION G — RESPONDING TO AN INFORMATION REQUEST

☐ 61. Treat a request under 42 U.S.C. § 7414 as compulsory and penalty-backed, not as correspondence.

☐ 62. Issue a document hold immediately covering everything within scope.

☐ 63. Assemble a team: environmental, operations, records, and counsel.

☐ 64. Confirm the scope in writing and negotiate a realistic schedule with a credible plan.

☐ 65. Identify every custodian and system: data historians, maintenance systems, laboratory records, and email.

☐ 66. Produce completely. An omission later supplemented is worse than a slower complete response.

☐ 67. Log everything produced with dates.

☐ 68. Assess privilege realistically — required records and monitoring data are generally not privileged.

☐ 69. Run your own analysis of the same facts in parallel. The request reveals the agency's theory.

SECTION H — RESPONDING TO A NOTICE OF VIOLATION

☐ 70. Calendar the response deadline and request a meeting.

☐ 71. Verify each alleged violation against primary records, not summaries.

☐ 72. Identify factual errors and misread permit conditions, with citations.

☐ 73. Document corrective action already taken, with dates.

☐ 74. ⚠️ Complete any delayed compliance action now. Economic benefit is calculated, not negotiated, and it stops accruing when the action is complete.

☐ 75. Compute the likely economic benefit yourself so you can discuss it credibly.

☐ 76. Assemble gravity mitigation: self-disclosure, cooperation, prompt correction, compliance history, and any environmental benefit already achieved.

☐ 77. Evaluate any affirmative defense available under the applicable plan provision, such as a malfunction defense, and confirm its notice and documentation prerequisites were met.

☐ 78. Consider supplemental environmental projects where available.

☐ 79. Negotiate the injunctive relief hardest. It typically costs far more than the penalty.

☐ 80. Review stipulated penalty provisions for achievability before agreeing to milestones.

☐ 81. Assess criminal exposure where any falsification of data or reports may be involved, and change counsel structure accordingly.

SECTION I — CITIZEN SUIT NOTICE

☐ 82. Verify every alleged violation against your own records — most notices are built from self-reported data.

☐ 83. Determine whether each alleged violation was reported and whether corrective action was documented.

☐ 84. Determine whether the agency is diligently prosecuting the same conduct, which can bar the suit.

☐ 85. Consider approaching the agency about a resolution that addresses the same conduct.

☐ 86. Evaluate standing and the ongoing violation requirement.

☐ 87. Account for attorney's fees exposure under 42 U.S.C. § 7604 in any settlement analysis.

☐ 88. Use the sixty-day period to complete corrective action and document it.

SECTION J — ANNUAL SELF-AUDIT

☐ 89. Re-verify the emissions inventory against production and purchase records.

☐ 90. Re-verify potential to emit after any equipment change.

☐ 91. Test every synthetic minor limit against primary records for the last five years.

☐ 92. Confirm every physical change in the last decade has a contemporaneous applicability analysis on file.

☐ 93. Audit monitoring data availability and calibration records.

☐ 94. Reconcile the deviation log to reports and certifications for the last three years.

☐ 95. Verify generator hours against the non-emergency operation limits.

☐ 96. Verify refrigerant records and leak repair timelines.

☐ 97. Check whether the designation or classification of the area has changed.

☐ 98. Check for pending rules affecting this source category.

☐ 99. Where problems are found: correct promptly, document the correction, and evaluate voluntary disclosure — prompt correction is the largest gravity mitigator available.

SECTION K — ACQUISITION DILIGENCE

☐ 100. Obtain the permit and every amendment.

☐ 101. Obtain five years of semiannual reports, annual certifications, deviation reports, and stack test results.

☐ 102. Obtain all agency correspondence, including any information requests.

☐ 103. Verify the emissions inventory against production data.

☐ 104. ⚠️ Verify that every physical change in the last decade was analyzed for applicability, with contemporaneous documentation. Undocumented modifications are the most common material finding and they travel with the facility.

☐ 105. Verify synthetic minor compliance from primary records.

☐ 106. Confirm the area designation and whether classification has changed.

☐ 107. Identify pending rules that will impose new requirements on the source category.

☐ 108. Quantify any identified exposure and allocate it through indemnity, escrow, or price adjustment.

☐ 109. Confirm local zoning and any nuisance or complaint history.

☐ 110. Confirm refrigerant, tank, and generator compliance — the small items that produce most findings.

SECTION L — SMALL AND MEDIUM FACILITY PROGRAM

Most regulated facilities are not refineries. This is the short program that prevents the overwhelming majority of violations at a fabricator, printer, food processor, hospital, university, data center, quarry, asphalt plant, or grain handler.

☐ 111. Know your permit type — synthetic minor, minor, general permit, or Title V — and keep a copy where operations staff can find it.

☐ 112. Identify the one or two parameters that keep you under a threshold, and track them monthly at minimum, from primary records.

☐ 113. Emergency generators: install hour meters, log hours monthly, and adopt a written policy prohibiting non-emergency operation except as the applicable standard allows. ⚠️ Demand response and peak shaving frequently exceed what the standard permits.

☐ 114. Boilers and process heaters: confirm which standard applies by size, fuel, and major or area source status, and calendar tune-ups and energy assessments.

☐ 115. Coating and printing: retain purchase records and technical data sheets for every coating, thinner, and cleanup solvent, and compute monthly usage.

☐ 116. Degreasing: confirm equipment requirements and operating practices, and post them at the unit.

☐ 117. Refrigeration: inventory equipment by refrigerant type and charge size, compute leak rates, retain service records, and confirm technician certification — 40 C.F.R. Part 82.

☐ 118. Storage tanks: confirm vapor control requirements by size and vapor pressure.

☐ 119. Fugitive dust: implement and document control measures for material handling and unpaved surfaces.

☐ 120. Products used in operations: confirm content limits under 40 C.F.R. Part 59 where applicable.

☐ 121. File reports on time. Late filing of an otherwise clean report is a violation that costs nothing to avoid.

☐ 122. Assign one owner for the whole program, with a backup, and a calendar.

SECTION M — COMMUNITY ENGAGEMENT

☐ 123. Publish the permit application and supporting analysis proactively.

☐ 124. Hold an informal meeting before the formal hearing. It is inexpensive and materially reduces opposition.

☐ 125. Offer accessible monitoring information where feasible.

☐ 126. Adopt a complaint response protocol: a phone number that is answered, a logged response within twenty-four hours, an investigation, and a written closeout.

☐ 127. Anticipate the recurring themes: cumulative exposure, odor, truck traffic, and monitoring transparency.

☐ 128. Recognize that odor is frequently unaddressed by any emission limit — a fully compliant facility can still face nuisance claims and local enforcement.

☐ 129. Understand that complaint logs are discoverable and are read.

SECTION N — QUICK REFERENCE

☐ 130. Designation decides everything — 42 U.S.C. § 7407. ☐ 131. Potential to emit is capacity, not actual emissions. ☐ 132. Write the applicability analysis before the project, not after. ☐ 133. A falling hourly rate is not a complete answer — Environmental Defense v. Duke Energy Corp.. ☐ 134. Price offsets before pricing the project in nonattainment areas — 42 U.S.C. § 7503. ☐ 135. The permit shield is only as broad as the applicability analysis in the application. ☐ 136. Monitor downtime is a deviation. ☐ 137. Reconcile the deviation log quarterly, not annually. ☐ 138. Economic benefit stops accruing when the delayed action is complete — 42 U.S.C. § 7420. ☐ 139. Falsifying data or reports is what turns a civil matter criminal — 42 U.S.C. § 7413. ☐ 140. Citizen suits carry attorney's fees — 42 U.S.C. § 7604. ☐ 141. A state permit is not the end of the analysis — Alaska Dep't of Environmental Conservation v. EPA. ☐ 142. The violation is frequently the missing record, and it is counted per day.

SECTION O — THE APPLICABILITY MEMORANDUM

Every project should generate one document, written before construction, that a regulator could read years later. This is its structure.

☐ 143. Project description. What is being installed, removed, replaced, or changed, in physical terms, with drawings or specifications attached.

☐ 144. Purpose. Why the project is being done — reliability, capacity, efficiency, product change, or regulatory compliance. Purpose matters to the routine maintenance analysis and to the demand growth exclusion.

☐ 145. Affected emission units, identified by permit unit number.

☐ 146. Baseline actual emissions, with the lookback period selected, the reason for selecting it, and the underlying data — operating hours, throughput, fuel use, and emission factors.

☐ 147. Projected actual emissions after the project, with the assumptions stated and the basis for each.

☐ 148. Excludable increases, if any, attributable to demand growth that could have been accommodated before the project, with support.

☐ 149. Netting analysis, if used: contemporaneous increases and decreases, the period, and the enforceability of each decrease.

☐ 150. Comparison to significance thresholds for each pollutant, showing the arithmetic.

☐ 151. Conclusion — review triggered or not, and for which pollutants.

☐ 152. Post-project obligations, if the conclusion rests on a projection: what will be tracked, for how long, and when reports are due.

☐ 153. Preparer, reviewer, and date. ⚠️ A memorandum dated after construction began is worth very little.

SECTION P — WHAT TO DO IN THE FIRST WEEK OF A PROBLEM

☐ 154. Stop the noncompliant activity if it is ongoing and can be stopped safely, and document the decision and the time.

☐ 155. Preserve everything — issue a hold covering monitoring data, maintenance records, operating logs, email, and any draft analyses.

☐ 156. Determine the reporting obligation. Many permits require prompt deviation reporting within twenty-four to seventy-two hours, separate from the semiannual report.

☐ 157. Report on time even if the facts are incomplete, and supplement.

☐ 158. Establish the timeline — when the condition began, when it was discovered, and by whom.

☐ 159. Quantify the emissions consequence, if any, using available data.

☐ 160. Identify the root cause, distinguishing equipment failure, procedure failure, and training failure.

☐ 161. Implement corrective action and document completion dates.

☐ 162. Assess whether the annual certification already filed was affected, and whether an amendment is appropriate.

☐ 163. Evaluate voluntary disclosure if the problem was found through a systematic audit and meets the applicable conditions.

☐ 164. Brief the responsible official personally. They will sign the next certification, and they should not learn about this from the report.

☐ 165. Fix the system, not the instance — the tracking gap, the missing procedure, or the unassigned responsibility that allowed it.

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