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Title V Operating Permits and the Annual Compliance Certification: What the Signature Commits You To
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Title V Operating Permits and the Annual Compliance Certification: What the Signature Commits You To

What 40 CFR 70.6(c)(5)(iii) requires a Title V compliance certification to contain, who signs it, and why that signature carries criminal exposure.

by iSi Environmental

A Title V operating permit collects the requirements a facility is already under. The New Source Performance Standards, the hazardous air pollutant standards, the state implementation plan requirements and the preconstruction permit conditions all get gathered into one document. Then Part 70 adds the mechanism that makes the collection enforceable: once a year, a responsible official signs a statement that the facility complied with every term in it, and the statement goes to the EPA Administrator as well as to the state permitting authority (40 CFR 70.6(c)(5)(iv)).

Most of the annual effort goes into the data behind that signature. The exposure sits in the signature itself. Under 40 CFR 70.5(d) the responsible official certifies “that, based on information and belief formed after reasonable inquiry, the statements and information in the document are true, accurate, and complete.” The content rule at 70.6(c)(5)(iii)(B) then points at “section 113(c)(2) of the Act, which prohibits knowingly making a false certification or omitting material information.” That is a regulation naming a criminal statute in its own text. 42 U.S.C. 7413(c)(2) carries imprisonment of up to 2 years for a knowing false certification.

Here is a two minute test. Pull your permit, find the compliance certification section, and check whether it requires you to name the method used to determine compliance for each term. If it does not, last year’s certification did not satisfy 70.6(c)(5)(iii)(B) either.

Very little of this moved in 2026. EPA finalized one rule on the scope of Title V applicable requirements at 91 FR 61026, effective October 26, 2026, covered in our post on that final rule. At 91 FR 61324 (FR Doc 2026-19889, September 29, 2026), EPA issued correcting amendments revising paragraph (g)(2) of 70.6 and of 71.6. Otherwise Part 70’s source note still reads 57 FR 32295, July 21, 1992, and the certification language at 70.6(c)(5) is what a responsible official signed against in 1997.

What must a Title V annual compliance certification actually contain?

Four things, at 40 CFR 70.6(c)(5)(iii): identification of each permit term or condition that is the basis of the certification; identification of the method used to determine compliance status with each term during the period; the compliance status itself, including whether compliance was continuous or intermittent; and any other facts the permitting authority requires. A bare statement of compliance does not satisfy it.

Subparagraph (A) builds the certification term by term, so a facility with dozens of conditions certifies against each one. (B) makes the method part of the claim, and the methods named must include at minimum the monitoring required under 70.6(a)(3). (C) carries the continuous or intermittent statement, the deviation identification and the Part 64 excursion flag.

Frequency comes from 70.6(c)(5)(i): not less than annually, or more often if the applicable requirement or the permitting authority says so. The schedule was set at the application stage, since 40 CFR 70.5(c)(9) requires the application itself to include “a schedule for submission of compliance certifications during the permit term.”

What does “continuous or intermittent” mean on a Title V compliance certification?

40 CFR 70.6(c)(5)(iii)(C) requires the certification to state the compliance status of the source “including whether compliance during the period was continuous or intermittent.” Intermittent compliance means the facility was out of compliance for part of the period. Certifying intermittent compliance is therefore an affirmative disclosure of a violation window, in a document the agency keeps.

Facilities treat this as a formatting choice. One option reports a period of noncompliance to the permitting authority and to EPA. The other asserts that no such period existed. A facility that had a deviation during the period and certifies continuous compliance has a 113(c)(2) problem, because the same paragraph requires the certification to identify each deviation and take it into account. A facility that finds a ten month old deviation the week before the certification is due is not deciding whether to disclose. It is deciding whether to disclose accurately.

Who signs a Title V compliance certification, and what are they certifying to?

A responsible official, under 40 CFR 70.5(d), certifying “that, based on information and belief formed after reasonable inquiry, the statements and information in the document are true, accurate, and complete.” The same standard reaches every required report under 70.6(a)(3)(iii)(A). “Reasonable inquiry” is the operative phrase: the signature asserts that someone actually checked.

Part 70 does not define reasonable inquiry. The standard is what the signer should have found after inquiring. An EHS manager who hands a responsible official a one page summary and a signature block has given that official nothing to inquire into. The defensible version is a package: the term by term list from (A), the method for each from (B), the deviation log and the Part 64 excursion record.

Can a false Title V compliance certification be a crime?

Yes, and the regulation says so itself. 40 CFR 70.6(c)(5)(iii)(B) directs the owner or operator to identify any other material information needed “to comply with section 113(c)(2) of the Act, which prohibits knowingly making a false certification or omitting material information.” Under 42 U.S.C. 7413(c)(2) that carries imprisonment of up to 2 years. A knowing permit violation under 7413(c)(1) carries up to 5.

7413(c)(2) applies to anyone who knowingly “makes any false material statement, representation, or certification in, or omits material information from” a document required under the Act. Omission sits in that list alongside false statement. Section 7413(c)(1) runs on a separate track, reaching a knowing violation of a permit requirement and expressly naming “section 7661a(a) or 7661b(c) of this title (relating to permits).” The noncompliance and the certification about it are two distinct exposures.

What counts as a deviation that has to be reported under a Title V permit?

The permit decides, not Part 70. 40 CFR 70.6(a)(3)(iii)(B) requires prompt reporting of deviations “including those attributable to upset conditions as defined in the permit.” “Deviation” does not appear among the definitions at 40 CFR 70.2, so the operative definition lives in the permit and in the state’s rules, and it varies between permits held by the same company.

The absence at 70.2 is verifiable rather than theoretical: the definition list runs straight from “Designated representative” to “Draft permit” with no entry in between.

For an EHS function running plants in more than one state, two facilities operating the same equipment can owe different deviation reporting duties, because each permit defines the trigger separately. A corporate procedure is non-compliant somewhere unless it is written to the strictest definition in the portfolio. What 70.6(a)(3)(iii)(B) requires everywhere is content: probable cause for each deviation, plus any corrective actions or preventive measures taken.

How quickly must a Title V deviation be reported?

There is no federal number. 40 CFR 70.6(a)(3)(iii)(B) requires “prompt reporting” and then provides that “the permitting authority shall define ‘prompt’ in relation to the degree and type of deviation likely to occur and the applicable requirements.” The deadline is in your permit and your state rule. The one hard federal clock is the 2 working days for emergency notice at 70.6(g)(3)(iv).

Because the rule scales the deadline to the degree and type of deviation, prompt can mean one thing for an exceedance and something else for a recordkeeping lapse inside a single permit. Two other clocks run alongside it. Monitoring reports are due at least every 6 months under 70.6(a)(3)(iii)(A) and must clearly identify all instances of deviations from permit requirements. The certification is due no less than annually under 70.6(c)(5)(i). The same deviation surfaces three times, in the prompt report, the semiannual monitoring report and the annual certification, and those three documents sit in one agency file.

Do compliance assurance monitoring excursions have to be disclosed on the certification?

Yes, and as a named category. 40 CFR 70.6(c)(5)(iii)(C) requires the certification to “identify as possible exceptions to compliance any periods during which compliance is required and in which an excursion or exceedance as defined under part 64 of this chapter occurred.” A compliance assurance monitoring excursion is not automatically a violation, but it is a disclosure the certification must carry.

The phrase EPA chose, “possible exceptions to compliance,” is doing real work. It gives the facility somewhere to report an excursion without conceding noncompliance, which is what a Part 64 excursion usually is: an indicator range departure that triggers a response rather than a measured exceedance of a limit.

What does the Title V permit shield actually protect against, and does my permit have one?

Under 40 CFR 70.6(f)(1), compliance with the permit’s conditions is deemed compliance with applicable requirements that are included and specifically identified in the permit, or that the permitting authority determined in writing are not applicable. Then 70.6(f)(2) is the catch: “A part 70 permit that does not expressly state that a permit shield exists shall be presumed not to provide such a shield.”

The scope is narrower than the name suggests. Protection attaches to applicable requirements included and specifically identified in the permit, and to requirements the permitting authority determined in writing do not apply. A requirement never written into the permit, and never the subject of a written inapplicability determination, sits outside the shield whether or not the permit grants one.

What does the permit shield NOT protect against?

Four things, listed at 40 CFR 70.6(f)(3): Clean Air Act section 303 emergency orders and the Administrator’s authority under them; “the liability of an owner or operator of a source for any violation of applicable requirements prior to or at the time of permit issuance”; the applicable requirements of the acid rain program; and EPA’s ability to obtain information under section 114.

The second carve-out changes how a facility should handle a renewal. The shield is forward looking. Issuing or renewing a permit does not clear liability for violations that existed before or at the time of issuance, so a facility that uncovers a long-running noncompliance while preparing a renewal cannot resolve it by getting the new permit issued.

Can a Title V source keep operating after its permit expires?

Only if a timely and complete renewal application is already in. 40 CFR 70.7(c)(1)(ii) provides that “permit expiration terminates the source’s right to operate” unless a timely and complete renewal application has been submitted, and 70.7(b) protects a source that filed one until the permitting authority takes final action. That protection ceases if the applicant misses a written deadline for submitting additional information.

The filing window sits at 40 CFR 70.5(a)(1)(iii): at least 6 months before expiration, and no more than 18 months before. Permit terms run a fixed 5 years for affected sources and not to exceed 5 years for everyone else under 70.6(a)(2).

Is an equipment malfunction a defense to exceeding a Title V emission limit?

Sometimes, under narrow conditions. 40 CFR 70.6(g)(1) defines an emergency as arising from “sudden and reasonably unforeseeable events beyond the control of the source,” and expressly excludes noncompliance caused by “improperly designed equipment, lack of preventative maintenance, careless or improper operation, or operator error.” The permittee carries the burden of proof under (g)(4).

The notice clock is 2 working days from the exceedance under 70.6(g)(3)(iv), and the evidence has to be contemporaneous: properly signed operating logs or other relevant evidence establishing each element at (g)(3). We treat the emergency provision at length in our post on the Title V emergency affirmative defense.

Does a minor permit modification carry the permit shield?

No. 40 CFR 70.7(e)(2)(vi) states flatly that “the permit shield under § 70.6(f) of this part may not extend to minor permit modifications.” That is the real trade-off in choosing the minor modification track: it is faster, with a 90 day clock under (e)(2)(iv) against a 9 month target for significant modifications under (e)(4)(ii), and it buys no shield.

The 90 day figure needs its qualifier. Under 70.7(e)(2)(iv) the permitting authority acts within 90 days of receiving the application, or 15 days after EPA’s 45 day review period under 70.8(c), whichever is later. The 9 month figure is softer than a deadline: 70.7(e)(4)(ii) sets a target that the majority of significant modifications be completed within 9 months of a complete application.

What is the penalty for a Title V violation?

Clean Air Act civil penalties run per day, per violation. 42 U.S.C. 7413(b) authorizes a civil penalty of “not more than $25,000 per day for each violation” as enacted, and 40 CFR 19.4 adjusts that figure to $124,426 for violations occurring after November 2, 2015 where penalties are assessed on or after January 8, 2025. Administrative penalties under 7413(d)(1) are adjusted to $59,114 and $472,901.

Both citations are needed because they do different jobs. The per day, per violation basis is statutory and comes from 7413(b) itself, while the dollar amount comes from the inflation adjustment table at 40 CFR 19.4, whose table does not print the phrase “per day.” Section 7413(b)(1) covers violations of an applicable implementation plan or permit, and 7413(b)(2) covers any other requirement under the Act. The smaller administrative figure at 7413(d)(3) adjusts to $11,823.

One point on the calendar. The most recent column in 40 CFR 19.4 covers penalties “assessed on or after January 8, 2025,” and the amendment history for that section ends there. There is no 2026 column, so a figure presented as a 2026 Clean Air Act adjustment is not coming from 19.4.

Which agency issues Title V permits in Kansas, Missouri, Nebraska and Colorado?

The state, under an EPA-approved Part 70 program listed in Appendix A to Part 70. Kansas received full approval effective February 29, 1996 under K.A.R. 28-19-202, 28-19-516 and 28-19-517. Missouri received full approval effective June 13, 1997 under 10 CSR 10-6.020, 10-6.065 and 10-6.110. Colorado’s interim approval took effect February 23, 1995, with full approval effective October 16, 2000.

Kansas sits with the Kansas Department of Health and Environment in EPA Region 7, and its program has been revised repeatedly, most recently effective May 28, 2025. Missouri, also Region 7, had a revision to 10 CSR 10-6.110 approved March 19, 2025 with a state effective date of January 1, 2026, effective April 27, 2026. Colorado’s program sits with the Colorado Department of Health, Air Pollution Control Division, in Region 8; Appendix A gives no state rule citation for Colorado.

Nebraska submitted its program on November 15, 1993, supplemented it in 1994 and 1995, and submitted amended Title V rules on June 14, 1995 under NDEQ Title 129 Chapters 1 and 5. Two local agencies hold their own Appendix A entries: a delegation contract with the City of Omaha effective June 6, 1995, and the Lincoln-Lancaster County Health Department, full approval effective November 17, 1995. That date belongs to the local agency entry. It is not the state program’s approval date, which this post does not assert.

Oklahoma and Texas both run EPA-approved Part 70 programs, assigned to EPA Region 6, through the Oklahoma Department of Environmental Quality and the Texas Commission on Environmental Quality. We could not read the Appendix A entries for either state against a primary source, so no approval date and no rule citation appears here for either.

In a delegated program the permit, the deviation definition, the “prompt” deadline and the certification form all come from the state, while the certification copy still goes to EPA under 70.6(c)(5)(iv). A company with plants in Kansas and Texas does not have one Title V deviation procedure. It has two.

Which sources does an approved Part 70 program have to permit?

40 CFR 70.3(a) requires an approved state program to permit five categories: any major source; any source, including an area source, subject to a standard under Clean Air Act section 111; any source, including an area source, subject to a standard under section 112, with an exception for sources covered solely because of section 112(r); any affected source under the acid rain program; and any source in a category EPA designates.

The area source reach at (a)(2) and (a)(3) is what surprises people. A small facility subject to one area source NESHAP can be pulled into Title V on that basis alone, with no major source determination anywhere in the analysis.

Relief sits at 70.3(b). Under (b)(1), nonmajor sources that are not affected sources or section 129(e) units “may be exempted by the State from the obligation to obtain a part 70 permit” until EPA completes a rulemaking on nonmajor program structure, which has not happened in 34 years. Paragraph (b)(4) adds two permanent exemptions: sources permitted solely because of the NSPS for residential wood heaters, and sources permitted solely because of 40 CFR 61.145, the asbestos demolition and renovation standard.

For sources that do reach the major source test, the definition deciding most close calls is potential to emit at 40 CFR 70.2, which treats a limitation, control equipment included, as part of the source’s design “if the limitation is enforceable by the Administrator.” Enforceability is the whole test. Design capacity over the threshold, a control device, and no enforceable limit adds up to a major source.

Is Title V on EPA’s national enforcement priority list?

No. EPA states that “in August 2023, EPA selected six priority areas for the fiscal years (FY) 2024-2027 NECIs”: multi-media border security; increasing compliance with drinking water standards; chemical accident risk reduction; creating cleaner air for communities; addressing exposure to PFAS; and protecting communities from coal ash contamination. Title V, operating permits and excess emissions appear nowhere by name, and the only air initiative among the six is framed around hazardous air pollutants.

The honest reading of that is not reassuring. Title V findings arrive through routine inspection, and through the facility’s own annual self-disclosure, which is what the certification is engineered to produce. A program with no enforcement initiative behind it still generates a signed, dated, agency-held statement every year.

What to check before the next certification is signed

  1. Compare the permit’s compliance certification condition against 70.6(c)(5)(iii)(A) through (C). If the condition is thinner than the regulation, the regulation governs.
  2. Build the term by term list: every condition that is the basis of the certification, with the method used to determine compliance status for each, including at minimum the monitoring required under 70.6(a)(3).
  3. Reconcile the deviation log against the semiannual monitoring reports and the prompt deviation reports already filed. All three sit in one agency file and need to say the same thing.
  4. Pull the Part 64 excursion record and carry every excursion onto the certification as a possible exception to compliance, whether or not it closed as a non-violation.
  5. Search the permit for the words “permit shield.” If they are absent, 70.6(f)(2) presumes no shield exists, and whatever your compliance strategy assumed about shield coverage has to be rebuilt.

For a facility that has just triggered applicability, the first-time application is due within 12 months after the source becomes subject, or earlier if the permitting authority sets an earlier date, under 70.5(a)(1)(i).

iSi has handled 19 Title V air permitting engagements across 12 clients since 2011, and the work that matters most is the unglamorous part: assembling the term by term certification package so the responsible official has something real to inquire into, then reconciling the deviation record across the prompt reports, the monitoring reports and the certification so the three agree. If you want a second set of eyes on a certification before it goes out, or on a permit whose applicable requirements list has not been reviewed since the last renewal, our environmental compliance team handles air permitting work like this. Contact us and you will get a same-day response.

Frequently Asked Questions

What must a Title V annual compliance certification contain?

Four elements under 40 CFR 70.6(c)(5)(iii): each permit term that is the basis of the certification, the method used to determine compliance with each term, the compliance status including whether compliance was continuous or intermittent, and any other facts the permitting authority requires.

Who signs the certification and what does the signature assert?

A responsible official, certifying under 40 CFR 70.5(d) that based on information and belief formed after reasonable inquiry, the statements are true, accurate, and complete. A knowing false certification is a crime under 42 U.S.C. 7413(c)(2), carrying up to 2 years of imprisonment.

Can a facility keep operating after its Title V permit expires?

Only if a timely and complete renewal application is already on file. 40 CFR 70.7(c)(1)(ii) provides that permit expiration terminates the source’s right to operate without one; the filing window is 6 to 18 months before expiration.

What is the civil penalty for a Title V violation?

Clean Air Act penalties run per day per violation: up to $124,426 under section 113(b) as adjusted by 40 CFR 19.4, with administrative penalties up to $59,114 per day capped at $472,901 per matter.

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