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EPA's Final Rule on Title V Applicable Requirements: Which NSR Conditions Are Now Insulated and Which Stay Contestable

EPA's final Title V applicable requirements rule is effective October 26, 2026. NSR permit terms become final only where a permit had public notice and comment.

by iSi Environmental

EPA published this as a final rule on September 25, 2026, effective October 26, 2026. The citations: 91 FR 61026, RIN 2060-AW77, FR Doc. 2026-19671, Docket EPA-HQ-OAR-2023-0401. The rule rewrites the definition of “applicable requirement” in 40 CFR 70.2 and 71.2 so that a New Source Review preconstruction permit conclusively establishes the NSR-related state implementation plan requirements for the project it authorized. EPA will not reopen those decisions through Title V.

Read the qualifying clause before filing that away as relief. The finality applies only where a preconstruction permit “is issued with public notice and the opportunity for comment and judicial review.” Most minor NSR permits and most permits-by-rule never had all three. Your Title V permit now carries two tiers of conditions. Conditions traceable to a noticed, appealable NSR permit are insulated from substantive re-review. Conditions traceable to a no-comment minor permit are as contestable on October 27 as they were on October 25.

If you hold permits in Kansas, Oklahoma or Colorado, this rule was written with them in mind, for reasons buried in footnote 321.

What Did EPA’s 2026 Title V “Applicable Requirements” Final Rule Actually Change?

91 FR 61026 (September 25, 2026), RIN 2060-AW77, amends 40 CFR 70.2, 70.8(c)(1), 70.12(a)(2) and 71.2. NSR permits issued with public notice, comment and judicial review now conclusively define the NSR-related SIP applicable requirements for Title V, and EPA “will not evaluate whether applicable requirements … were correctly established.”

Four amendments do the work. Paragraph (1) of the definition, covering SIP and FIP requirements, picks up the qualifying language. Paragraph (2) confirms that the terms of all NSR permit types under a SIP or FIP, minor NSR included, are applicable requirements that belong in a Title V permit regardless of the public process that produced them. Paragraph (4) now reads “including any requirement concerning accident prevention under section 112(r)(7) of the Act, but not including any requirement under section 112(r)(1) of the Act.”

The fourth amendment changes outcomes. Under 40 CFR 70.8(c)(1), “the Administrator will not evaluate whether applicable requirements, as defined in Sec. 70.2, were correctly established,” and 70.12(a)(2) bars the same claim as grounds for an EPA objection. EPA’s 45-day review and the 60-day citizen petition window both survive. What EPA deleted is a category of argument that can be made inside them.

When Does the Title V Applicable Requirements Rule Take Effect?

October 26, 2026, which is 31 days after publication at 91 FR 61026 on September 25, 2026. The DATES section reads: “This final rule is effective on October 26, 2026.” The rule text does not say how it applies to a permit already in process, so ask your permitting authority which version of 70.2 it will apply to a renewal already in its queue.

That date binds EPA. It does not automatically reach a state-issued permit, since Title V is delegated and each state issues under its own adopted rules. What changes on October 26 everywhere is EPA’s own conduct: its 45-day review of a proposed state permit under 70.8(c)(1), and its disposition of citizen petitions under 70.12(a)(2). Both are federal functions performed on state permits, so the benefit arrives at the oversight layer immediately even where the state rulebook is untouched.

Is the Title V Applicable Requirements Rule Final or Still a Proposal?

Final. The Federal Register ACTION line for FR Doc. 2026-19671 reads “Final rule.” The proposal was 89 FR 1150 (January 9, 2024), with comments closing April 10, 2024 after an extension at 89 FR 14015. More than two and a half years separate the two documents. Anything citing only the 2024 proposal is out of date.

Footnote 5 severs the proposal’s treatment of “enhanced NSR,” a mechanism for incorporating NSR permits into Title V permits, from this final rule.

Any petition for judicial review of FR Doc. 2026-19671 goes to the D.C. Circuit by November 24, 2026, 60 days after publication, because EPA found the action nationally applicable under CAA 307(b)(1). Ten environmental organizations objected to the core of this rule in a joint comment letter dated April 10, 2024, which preserved those objections for review under CAA 307(d)(7)(B).

Does the Risk Management Program Still Count as a Title V Applicable Requirement?

Yes. Amended 40 CFR 70.2 paragraph (4) expressly retains “any requirement concerning accident prevention under section 112(r)(7) of the Act,” and 112(r)(7) is 40 CFR Part 68. Only CAA 112(r)(1), the General Duty Clause, was removed. EPA footnote 344: “This rule does not affect the risk management plan program under CAA section 112(r)(7) or 40 CFR part 68 in any way.”

That paragraph will be misread as RMP relief. It is not. The Part 68 and Title V interface stays at 40 CFR 68.215, and EPA reaffirms that the only 112(r) applicable requirements that must be satisfied through Title V are the Part 68 risk management plan requirements under 112(r)(7).

The 112(r)(1) exclusion is not new policy. EPA denied two petitions on the question before this rulemaking: Hazlehurst Wood Pellets (Petition No. IV-2020-5, December 31, 2020) and Owens-Brockway Glass Container (Petition No. X-2020-2, May 10, 2021). The General Duty Clause did not go away either. It remains self-implementing and independently enforceable against the facility under CAA 112(r)(1), just no longer through the Title V permit. Delete an RMP task from your Title V calendar this month and you have created a finding.

Can Citizens Still Petition EPA to Object to a Title V Permit After This Rule?

Yes. The 60-day petition window that opens after EPA’s 45-day review survives in 40 CFR 70.8(d). What changed is the permissible grounds. New 70.12(a)(2): “Any claim that an applicable requirement, as defined in Sec. 70.2, was incorrectly established will not present grounds for the Administrator’s objection.” The route stays open and one category of argument closes.

EPA states that since the 2017 PacifiCorp-Hunter I and Big River Steel Orders it “has issued approximately 30 other title V petition orders addressing similar issues under different fact patterns.” For the average permit holder this was a tail risk rather than a routine cost.

EPA named where the scrutiny goes instead: Title I permit appeals, CAA 113 enforcement, CAA 304 citizen suits, and reopening for cause under 40 CFR 70.7(f) and (g). The total volume of scrutiny is not dropping. Its venue is moving.

Does a Minor NSR Permit Issued Without Public Comment Get the Same Protection?

No. Paragraph (1) of the amended definition conditions finality on “public notice and the opportunity for comment and judicial review.” EPA states it “will continue to review substantive NSR issues in the rare and limited situations in which the underlying NSR permit was not issued following public notice and the opportunity for comment and judicial review.” That is the carve-out that decides things for synthetic minors.

The regulated side fought this element and lost. EPA’s summary: “This element of the EPA’s approach garnered significant interest, concern, and opposition in public comments from permitting authorities and regulated entities.” Commenters argued EPA lacks a legal foundation for treating noticed and un-noticed NSR permits differently. EPA kept the condition, calling it “an important element of the Agency’s framework and the best reading of the statute.”

The highest-exposure profile in this region is a synthetic minor that took a federally enforceable cap in a minor NSR permit issued without public comment, at a facility that also holds a Title V permit. We covered the underlying mechanism when EPA proposed dropping the federal minor-permit notice minimums, in what that proposal would change at your plant. That proposal, 91 FR 41591 (July 7, 2026), points the opposite direction from this final rule. One rewards NSR permits that went through comment; the other would let states stop requiring it, producing faster construction permits whose terms never become conclusively established.

Must States Revise Their Part 70 Programs, and by When?

There is no deadline and no obligation. Preamble Section III.E.4: “Permitting authorities are not required to revise their regulations or submit revised part 70 regulations or SIP regulations for EPA approval as a result of this rule.” EPA views existing state rules as already consistent. States “that desire the greater certainty associated with the rule revisions finalized in this action are welcome to make changes to their regulations.”

A state can leave its rules as they are indefinitely. All six states in this region run EPA-approved Part 70 programs listed in 40 CFR Part 70 Appendix A and issue under their own adopted text. Kansas issues Title V permits as Class I operating permits under the operating permit regulations that begin at K.A.R. 28-19-500.

EPA flagged one second-order effect. To capture the new finality, “it is possible that permitting authorities may decide to increase the amount of public participation opportunities offered on certain minor NSR permit actions.” A minor-permit applicant in a state that goes that way trades a longer preconstruction timeline for operating-permit certainty.

When Is a Title V Renewal Application Due?

40 CFR 70.5(a)(1)(iii) sets the federal floor: a timely application is one submitted at least 6 months before permit expiration. A state may require more lead time, but “in no event shall this time be greater than 18 months.” Permits run a fixed 5-year term for affected sources and not to exceed 5 years for everyone else. A timely, complete application triggers the application shield at 40 CFR 70.7(b), and 40 CFR 70.4(b)(10) keeps the existing permit in force until the renewal is issued or denied.

18 months is the ceiling on what a state is allowed to require. 6 months is the federal requirement. Many state rules sit above 6 months, so calendar against your own state rule. File timely and complete and your existing permit plus any shield continues under 70.4(b)(10) if the agency does not act. Miss timely or complete and that protection does not attach.

EPA guidance this year makes the renewal itself lighter. The April 2026 renewal streamlining guidance says permitting authorities may allow applicants to “essentially resubmit the prior application with a current date” where there are no changes to permit terms or underlying applicable requirements.

What Penalty Applies to a Clean Air Act Title V Violation in 2026?

$124,426 per day, per violation under 42 U.S.C. 7413(b), per the inflation table at 40 CFR 19.4 Table 1. Administrative penalties run $59,114 per day to a $472,901 cap under 7413(d)(1), and $11,823 under 7413(d)(3). The operative adjustment is 90 FR 1377 (January 8, 2025), reaching violations after November 2, 2015 where penalties are assessed on or after January 8, 2025.

Those 2025 levels carry into 2026. As of the eCFR title 40 issue date of September 30, 2026, EPA has not codified a 2026 adjustment for Part 19, so cite 40 CFR 19.4 and the January 8, 2025 date rather than a 2026 date. A $37,500 figure in an older internal memo comes from Table 2 of the same section and reaches only older violations.

This rule does not touch any of it. EPA concedes the framework shifts NSR oversight toward enforcement, calling Title I permitting and Title I and III enforcement “the specific tools that Congress provided for overseeing NSR permitting decisions.” The petition route narrowed. CAA 113 at $124,426 per day and CAA 304 citizen suits did not.

Does This Rule Change Anything for Title V Permits in Kansas, Oklahoma or Colorado?

Materially more than elsewhere. Kansas, Oklahoma and Colorado sit in the Tenth Circuit, which vacated EPA’s PacifiCorp-Hunter I Order in Sierra Club v. EPA, 964 F.3d 882 (10th Cir. 2020). Footnote 321 of the preamble says revising the regulations gives Tenth Circuit states “certainty that the Agency will not use the title V process to address NSR issues.” Texas, in the Fifth Circuit, already had that result.

The reason this rule exists is a map problem. Two federal appeals courts ruled on EPA’s 2017 approach in the same year on different grounds. The Fifth Circuit, in Env’t Integrity Project v. EPA, 969 F.3d 529 (5th Cir. 2020), upheld EPA’s view that Title V is not the place to reexamine underlying Title I preconstruction permits. The Tenth Circuit in Sierra Club never reached that question. It held EPA’s reasoning inconsistent with EPA’s own regulations, which read “applicable requirements” to include all SIP requirements including major NSR. EPA then ran two policies on one map for six years. This rule rewrites the regulatory text the Tenth Circuit relied on.

Sort your facilities by circuit and the effect sorts itself. Kansas (KDHE), Oklahoma (ODEQ) and Colorado (CDPHE) are in the largest-change bucket. Texas (TCEQ) is in the smallest, and some permitting agencies and regulated entities within the Fifth Circuit told EPA the rulemaking “is not necessary.” Missouri (MoDNR) and Nebraska (NDEE) sit in the Eighth Circuit, where neither precedent controlled, so what changes there is the removal of ambiguity. No national alert will run that breakdown for this six-state footprint.

What Is Still Reviewable Through Title V After This Rule?

Four fact patterns survive: construction with no Title I preconstruction permit at all; a preconstruction permit issued under non-Title I, State-only authority; an NSR permit issued without public notice, comment and judicial review; and issues with “substantive overlap” between NSR and Title V requirements. EPA calls these “rare and limited,” not eliminated (91 FR 61026, Sections III.D.5 and III.D.6).

Unpermitted construction is the one facilities underestimate. Where a physical or operational change went in with no Title I authorization, EPA says “the title V process can, and should, be used to assure compliance with any relevant underlying NSR-related applicable requirements of the SIP.” Two trade associations asked EPA to drop even that. EPA’s response: “The basis for this suggestion is not clear to the EPA.”

State-only authority is the quieter trap. A permit issued under State-only-enforceable law does not establish SIP requirements at all. Those terms can still appear in your Title V permit, but they have to be labeled State-only or not federally enforceable under 40 CFR 70.6(b)(2).

Does the Rule Create a Permit Shield or Block Enforcement of NSR Requirements?

No. EPA states that “this rule does not change the EPA’s interpretation or enlarge the scope of a permit shield,” and 40 CFR 70.6(f)(2) presumes no shield: “A part 70 permit that does not expressly state that a permit shield exists shall be presumed not to provide such a shield.” CAA 113 enforcement, CAA 304 citizen suits, Title I permit appeals and reopening for cause under 70.7(f) and (g) all remain available.

EPA’s own impact analysis sets the ceiling. The preamble says the rule “will have minimal to no impact on the substantive emission control requirements to which regulated entities are subject,” and that most permitting authorities already run their Title V and NSR programs consistent with the agency’s approach.

The facilities that gain something concrete are the ones in Tenth Circuit states and the ones that have actually been petitioned.

Build the NSR Provenance Table Before Your Next Renewal

The deliverable this rule creates is one table. One row per Title V permit condition: the NSR permit or self-implementing standard it came from, that permit’s number, date and type (PSD, nonattainment NSR, minor NSR, permit-by-rule, general permit), whether it went to public notice and comment, whether judicial review was available, and whether it issued under Title I SIP or FIP authority or State-only authority. Every row showing public notice yes and Title I yes is insulated. Every row that does not is still contestable.

  1. Pull the public-participation record for each NSR permit from the agency file, not from memory. Order it now rather than when a petition lands, because agencies do not always retain minor-permit notice records the way they retain major-permit records.
  2. Flag every condition sourced from a no-comment minor permit or permit-by-rule. Then pick an answer: accept the risk, ask the agency to reissue the underlying authorization with public notice, or resolve the applicability question on the record now. Resolving it on the record usually costs less than a contested renewal.
  3. Inventory your unpermitted and under-permitted construction history. Anything built without a preconstruction permit stays reviewable through Title V and stays enforceable under CAA 113. The same timing discipline applies under the pending “begin actual construction” redefinition.
  4. Leave your RMP program alone. Part 68 obligations stay Title V applicable requirements through 112(r)(7), the interface stays at 40 CFR 68.215, and the General Duty Clause stays enforceable against you directly.

Most of this is documentary archaeology. iSi’s environmental compliance consulting team builds NSR provenance tables for Title V holders, pulls the agency public-participation files that decide whether a condition is insulated, and flags the synthetic minor caps that stay exposed.

Send us your current Title V permit and your NSR permit list and we will tell you which conditions are off the table and which are not. Start that review through our contact page.

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