&EPA
United States
Environmental Protection
Agency
Office of Air Quality
Planning and Standards
Research Triangle Park NC 27711
EPA-453/R-94-061b
November 1994
Air
Federal Operating Permit
Programs: Permits for
Early Reductions Sources -
Background Information for
Promulgated Rule
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EPA-453/R-94-061b
Federal Operating Permit Programs:
Permits for Early Reductions Sources -
Background Information for
Promulgated Rule
Emissions Standards Division
U.S. ENVIRONMENTAL PROTECTION AGENCY
Office of Air and Radiation
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
November 1994
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This document has been reviewed by the Emission Standards
- ^M
sicss'
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U.S. ENVIRONMENTAL PROTECTION AGENCY
Background Information
for Federal Operating Permit Programs-
Permits for Early Reductions Sources
Prepared by:
Bruce C. Jordan
' " »* X^ V-t.^*^AJ. .
Director, ^Emission Standards Division- (Date
U.S. Environmental Protection Agency
Research Triangle Park, North Carolina 27711
1.
The promulgated rule establishes an interim title
--
Defense, Transportation, Agriculture, Commerce, Interior
.
EPA s Regional Administrators; Local Air pluoS
"^ °f "*-* t »»>
3. For additional information contact:
Mr. David Beck, or
Mr. Richard Colyer
U.S. Environmental Protection Agency
Emission Standards Division (MD-13)
Research Triangle Park, North Carolina 27711
Telephone: (919) 541-5421 or (919) 541-5262
4. Copies of this document may be obtained from:
U.S. EPA Library (MD-35)
Research Triangle Park, North Carolina 27711
Telephone: (919) 541-2777
National Technical Information Services
5285 Port Royal Road
Springfield, Virginia 22161
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TABLE OF CONTENTS
CHAPTER 1. SUMMARY
1.1 SUMMARY OF CHANGES SINCE PROPOSAL 1-1
1.2 SUMMARY OF IMPACTS OF FINAL RULE !."l-5
CHAPTER 2. SUMMARY OF PUBLIC COMMENTS AND RESPONSES ...2-1
2.1
2.2
2.3
2.4
2.5
OPERATING FLEXIBILITY . 2 -2
THE ALTERNATIVE EMISSION LIMITATioN 2-5
REPORTING AND RECORDKEEPING... 2-8
TIMING AND TRANSITION ISSUES 2-9
MISCELLANEOUS " * 2 13
IV
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1.0 SUMMARY
The U.S. Environmental Protection Agency (EPA) proposed a
federal title V permits rule entitled "Permits for Early
Reductions Sources" on December 29, 1993 (Federal Register
Volume 58, pages 68804-68826) under authority of sections '
112(i)(5) and 502 of the Clean Air Act, as amended in 1990
Public comments were requested in the Federal Register notice
Five comment letters were received from industry and State/local
agency representatives. The comments and subsequent responses
serve as a basis for many of the revisions made to the rule
between proposal and promulgation. Additional revisions were
made to be consistent with changes proposed by EPA in a related
rule, namely the part 70 rule for State programs for
comprehensive title V permits Th^ fMnai *, i
yeiuu.cs. me final rule was promulgated on
1.1
SUMMARY OF CHANGES SINCE PROPOSAL
The EPA has made a few changes and clarifications to the
Permits for Early Reductions Sources rule since proposal These
changes and clarifications are not major, but rather constitute
fme tuning of the rule as proposed. The more significant
revisions are summarized below.
1. A definition of "post-reduction year" has been added to
the rule, as well as clarifying language pertaining to deadlines
for filing post-reduction emission information. These changes
make clearer the requirements for demonstrating that qualifying
reductions have been achieved. The proposed language restrict^
post-reduction emissions demonstrations to emissions occurring in
the year beginning with the date early reductions had to be
achieved [i.e., the date of proposal of the otherwise applicable
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section 112(d) standard]. Inadvertently, this language prevents
sources from making a post-reduction emissions demonstration for
an earlier year long period. The new definition of "post-
reduction year" allows sources to define an earlier post-
reduction year and obtain a permit and compliance extension
earlier than under the proposed language.
2. The proposed requirement to submit a permit application
in a computerized format, in addition to the written application
has been deleted. The EPA has not yet settled on a computer
format for such applications.
3. The proposed rule contained a provision requiring
permittees to report any deviations from permit terms or
conditions within ten days of occurrence. This requirement has
been revised to require "prompt" reporting of deviations, where
"prompt" will be defined in each early reductions permit and will
be based on the type and degree of the deviation. This is
consistent with similar language in the part 70 rule for State
title V permit programs .
The intent in making the requirement generic instead of
specific is to avoid rigid deadlines for reporting all permit
deviations, even those that may be trivial, within the context
of the permit, different types of deviations can be assigned
different reporting deadlines. Perhaps only two such deadlines
are needed, one for deviations that are significant (e.g., a
deviation that would compromise the source's ability to meet the
alternative emission limitation or that is related to accurate
monitoring of emissions or an emissions related parameter) and a
presumably longer deadline for less significant deviations.
4. The procedures for making administrative amendments to
existing early reductions permits have been revised. The
revisions are consistent with recently proposed revisions to the
administrative amendments procedures specified in the part 70
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rule for State title V programs. The revised procedures clarify
the permittee's actions in initiating an administrative amendment
and set the effective date of an amendment at 60 days after
receipt by the Administrator of the amendment application
(assuming the Administrator does not reject the amendment prior
to that time).
Also changed under the administrative amendments provisions
of the rule is the list of actions qualifying as administrative
amendments [§71.26(c)(1)]. A new provision has been added
[§71.26(c) (1) (v)] which allows certain other permit revisions to
be treated as administrative amendments provided that the
Administrator determines, on a case-by-case basis, that the
revision is similar to those qualifying actions already
specifically listed. The new provision is based upon a similar
provision in the part 70 rule and is a response to certain
commenters requests for additional flexibility to make relatively
insignificant changes at an early reductions source without
having to wait for a lengthy EPA approval process. Under the new
provision, EPA would be able to process through administrative
amendment procedures certain changes not listed in paragraphs
§7i.26{c}(1)(i) through (iv) but which are ministerial in nature
and therefore do not require the exercise of judgement on the
part of EPA, or review by the public or affected States.
5. Another proposed provision deleted in the final rule was
the requirement that specialty permit applications contain a
statement indicating the source's compliance status with any
applicable enhanced monitoring and compliance certification
requirements of the Act. This provision was included in the
proposal because a similar provision appears in the part 70 rule.
However, upon further reflection, EPA has realized that the
provision is not relevant to early reductions permit
applications. This specialty permit program focuses narrowly on
implementing the Early Reductions Program for a defined early
reductions source and associated HAP emissions, and within that
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context the only applicable monitoring and compliance
certification requirements will be those appearing in the
specialty permit issued later to the participating company. Each
specialty permit will implement the Act directive to provide for
enhanced monitoring on major sources by specifying monitoring
requirements tailored to the early reductions source and
consistent with the characteristics of the Early Reductions
Program. Compliance certification requirements also will be
imposed to comply with title V of the Act. However, it is
inappropriate to ask a source to discuss, in the permit
application, its compliance status for these requirements because
they do not yet exist.
6. A new paragraph (c) added to §71.21 explains that the
primary consideration in an EPA determination to issue a
specialty permit after a State obtains approval of its
comprehensive title V permit program would be the degree of delay
anticipated by deferring to the State for permit issuance.
7. A proposed provision [§71.25(a)(8)] would have allowed
the Administrator to collect fees for processing specialty
permits. The EPA has decided not to collect any fees for this
permit program and this provision has been deleted.
Along with the proposed specialty permits rule, EPA proposed
an amendment to 40 CFR part 63 subpart D (the Early Reductions
Rule). The amendment proposed is promulgated without change and
appends to an enforceable commitment made under the Early
Reductions Program the information on emission reduction measures
employed to achieve early hazardous air pollutant reductions.
Such information is required to be submitted as part of a
participant's post-reduction emission demonstration. Another
amendment to the Early Reductions Rule is promulgated to make the
rule consistent with the permits rule. The amendment mirrors the
change described in item 1 of the above list of changes to the
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proposed permits rule.
1.2 SUMMARY OF IMPACTS OF FINAL RULE
The Early Reductions Program, which this rule helps
implement, is a voluntary program which provides sources of
hazardous air pollutants an alternate means of complying with
section 112(d) of the Clean Air Act. Because the program is
voluntary, no environmental, economic,: or energy impacts are
directly attributable to the early reductions permits rule
However, should an owner or operator choose to take advantage of
the Early Reductions Program, public health and the environment
would benefit from reductions in hazardous air pollutants before
such reductions would otherwise be required through promulgation
of emission standards.
Additionally, any economic and energy impacts will occur
sooner at sources making early reductions than at those waiting
to comply with forthcoming emission standards. However due to
the greater flexibility to apply cost-effective emission
reduction measures under the Early Reductions Program, the
participating owner or operator likely would realize a net
savings compared to compliance impacts from meeting a section
112(d) standard.
It is not possible to quantify early reductions benefits or
impacts. These will depend on how many source owners or
operators are able to take advantage of the Early Reductions
Program, the characteristics of the sources participating
emxssion reduction measures employed, and the requirements of
otherwise applicable section 112(d) standards.
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2.0 SUMMARY OF PUBLIC COMMENTS
A total of 5 comment letters were received. All of the
comment letters have been recorded and placed in the docket
(Docket No. A-93-08) . A list of commenters, their affiliation,
and the docket item number assigned to their comment letter are
shown in the list below.
Docket Item No,
IV-D-01
IV-D-02
IV-D-03
IV-D-04
IV-D-05
Commenter and Affiliation
John W. Walton, P.E.
Technical Secretary
Tennessee Air Pollution Control
Board
9th Floor L&C Annex
401 Church Street
Nashville, Tennessee 37243-1531
L. Mark Wine, et al, counsel for:
Basic Acrylic Monomer Mfrs.
1330 Connecticut Ave, N.W.
#300
Washington, DC 20036-1702
Thomas X. White
Associate Vice President
Science and Technology Division
Pharmaceutical Manufacturers
Association
1100 15th Street, N.W.
Washington, DC 20005
Charles D. Mailoch
Director, Regulatory Management
Monsanto Company
800 N. Lindbergh Boulevard
St. Louis, Missouri 63167
Donald F. Theiler, Chairman
STAPPA Air Toxics Committee and
Robert H. Colby, Chairman
ALAPCO Air Toxics Committee
STAPPA and ALAPCO
444 North Capitol Street, N.W.
Washington, DC 20001
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The comments have been organized into the following categories:
2.1 Operating Flexibility
2.2 The Alternative Emission Limitation
2.3 Reporting and Recordkeeping
2.4 Timing and Transition Issues
2.4 Miscellaneous
2.1 OPERATING FLEXIBILITY
Comment 1: One commenter stated that EPA should include a 30-60
day minor modification procedure in the final rule or restore the
minor permit modification procedure from the part 70 rule for
State title V programs. If EPA adopts a 30-60 day process, it
should be broader than under the part 70 rule. The commenter
feels this is particularly important because EPA proposed
eliminating the ability to make "section 502(b)(10) changes" (IV-
D-03). Another commenter felt that to remain competitive in
today's world, U.S. industry must have flexibility to modify
operating methods and make minor changes to permitted facilities
without undue permitting delays. A minor permit modifications
procedure is essential. The commenter provided several examples
demonstrating the need for such minor modification procedures,
including frequent equipment changes, process changes to make
"made to order" specialty goods, and changes in raw materials
suppliers (the raw materials may differ slightly from supplier to
supplier). The commenter concluded that EPA should adopt the
minor permit modification procedures in the promulgated part 70
rule for State title V programs (IV-D-04).
Response: The EPA has carefully considered the commenter's
request for a more expedited permit revision procedure, and has
decided not to include such a procedure at this time. There are
two primary reasons for this decision. First, the part 70 permit
revision procedures are currently the subject of litigation in
the B.C. Circuit Court of Appeals. In part as a response to this
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litigation, EPA has proposed revisions to these part 70
procedures. The current uncertainty over EPA's legal discretion
to provide for expeditious permit revision procedures cautions
against providing for any such procedures here in this final
rule. Second, as stated in the preamble to the proposal of this
rule, EPA believes the nature of these specialty permits,
containing limitations that are uniquely tailored to the
facility, should reduce the need for permit revisions. Another
factor that deemphasizes the need for a more expedited revision
procedure is the fact that a specialty permit will, relatively
soon after permit issuance, be transferred to the jurisdiction of
the State, following which it will be subject to the revision
procedures of the State program.
The EPA may in the future decide to revise this rule to
provide more expedited procedures for permit revisions. However,
EPA currently intends await the outcome of the revisions to part
70 before taking any such action.
Comment 2: One commenter stated that operational flexibility is
vital to a "batch" processing industry, such as the
pharmaceutical industry. Therefore, it is important that the
final specialty permits rule retain the emissions trading
provisions (IV-D-03). Another commenter felt that industry could
only remain competitive internationally if adequate flexibility
to act on short notice is allowed. One means of implementing
this flexibility is through the §71.25(a) (10), the emissions
trading provision (IV-D-04). This section of the Clean Air Act
allows sources to make certain changes within a permitted
facility without requiring a permit revision, and is required in
any title V permitting program, 'including the specialty permit
program (IV-D-04). Another commenter opposes emission trading
programs, particularly those that allow interpollutant trading.
Although emissions trading increases flexibility for industry, it
adds complexity and additional administrative burdens for the
implementing agency and may not be protective of public health.
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(IV-D-05) .
Response: Section 502(b)(10) of the Act requires title V permit
programs to contain provisions to allow changes within a
permitted facility without requiring permit revision, if the
changes are not modifications under title I of the Act and the
changes do not exceed the emissions allowable under the permit.
In its part 70 rulemaking, EPA implemented this requirement by
delineating three operational flexibility provisions, two of
which were mandatory for State programs for comprehensive title V
permits. The two mandatory elements, which were potentially
applicable to this specialty permits rule, consisted of
provisions allowing:- (a) certain narrowly defined changes at a
permitted facility that contravene permit terms [so called
"section 502(b)(10) changes"] and (b) emissions trading within a
permitted facility for the purposes of complying with a federally
enforceable emissions cap. Consistent with the proposed
specialty permits rule, EPA has decided to incorporate an
emissions trading provision in the final rule, but leave out a
provision for "section 502(b)(10) changes." [The decision on
"section 502(b)(10) changes" is discussed in the response to
comment 3 below.]
Similar to the preamble discussion of operational
flexibility in the preamble to the proposed rule, the final
decision to include an emission trading provision is based on the
section 502(b)(10) directive that title V programs provide for
limited changes in a permitted facility without permit revision
and the perceived need to provide participants in the Early
Reductions Program a limited emissions trading program.
Providing for changes which affect emissions (but which overall
remain within the cap) without having to modify a permit is
crucial to participating sources which need to be able to respond
to market conditions, process technology advances, and other
business forces quickly to compete successfully.
As mentioned above, the types of emission changes that may
be undertaken without permit revision are restricted to those
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that are not modifications under title I of the Act and that do
not exceed allowable emissions (i.e., the alternative emission
limitation). Additionally, all emission trades must be
quantifiable and meet the compliance provisions of the permit.
Comment 3: One commenter supports the EPA's decision in the
proposed rule not to allow "section 502(b) (10)" changes (IV-D-
05). Another commenter felt that the specialty permit program
must include provisions for "section 502(b) (10)" changes (IV-D-
04) .
Response: The EPA continues to believe that the provision for
"section 502(b)(10) changes" found in 40 C.F.R. §70.4(b)(12)(i)
is unecessary for the specialty permits program both from a
policy and legal standpoint. As explained in the preamble to the
proposed rule (58 FR 68812, December 29, 1993), the authority for
"section 502(b)(10) changes" is intended to address situations
where permits have been inappropriately written to contain terms
that are superfluous to implementation and enforcement of the
requirements of the Act. The EPA does not anticipate that this
will be the case for specialty permits because of their single-
purpose nature and because EPA will be the permitting authority
Moreover, the EPA interprets section 502(b)(10) to require some
form of operational flexibility in any rule promulgated under
title V. The specialty permits rule is consistent with this
interpretation because it requires emissions trading under
§71.25(a) (10) .
2.2 THE ALTERNATIVE EMISSION LIMITATION
Comment 4: One commenter was concerned because alternative
emissions limitations will be written in terms of an annual cap
The concern is that risks to public health could increase under
this use of caps, particularly for the high-risk pollutants. The
shortcomings of the annual cap are potentially exacerbated by not
having annual caps for each individual hazardous air pollutant
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thus allowing interpollutant trading (IV-D-05).
Response: The Early Reductions Provision [section 112 (i) (5)] of
the Clean Air Act requires participants to demonstrate qualifying
HAP reductions with respect to verifiable and actual emissions in
a base year. Thus, a source documenting 100 tons of actual HAP
emissions in a base year must reduce emissions by 90 percent or
90 tons per year to qualify for a compliance extension, leaving
the source with emissions of 10 tons per year. (For particulate
HAP, the required reduction is 95 percent) . Section 112 (i) (5)
further directs the Administrator to issue permits to successful
participants containing an "alternative emission limitation"
reflecting the reduction which qualified the source for the
extension. The simple implication is that such a limitation
would be the annual emission level representing the 90 percent
reduction, in this case an annual cap of 10 tons per year
Nowhere in section 112 (i) (5) is it stated or implied that the
various HAPs emitted by the source must achieve the 90 percent
reduction individually or must have individual alternative
emission limitations. In fact the opposite is implied in
paragraph (E) of section 112 (i) (5) where the Administrator is
directed to take into account emissions of "high-risk" HAP by
limiting "the use of offsetting reductions in emissions of other
hazardous air pollutants from the source as counting toward the
90 per centum reduction in such high-risk pollutants qualifying
for an alternative emissions limitation under this paragraph "
in other words, Congress did not prohibit using greater
reductions in some HAPs to offset lesser reductions in other
emitted HAP, provided that the source overall meets the 90
percent reduction requirement and provided that the Administrator
Places some limit on such averaging in situations involving
"high-risk" pollutants. The EPA has adopted weighting factors
for the high-risk pollutants to provide limits on such
interpollutant averaging.
Since participating sources are achieving 90 percent
reductions in HAP emissions, the annual cap to maintain that
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reduction should afford considerable risk reduction. Coupled
with the high-risk pollutant weighting system, the capped
emissions from the early reductions source will continue to
provide this reduced risk through the compliance extension
period. Moreover, it is important to remember that the annual
cap on an early reductions source is fixed for the entire
compliance extension period, unlike allowable HAP emissions from
a source meeting a section 112(d) standard which often may
increase as a source increases production (as long as a percent
reduction requirement or emission per pound of product
requirement is met, for example). Finally, the Early Reductions
Program does not prohibit State/local agencies from enacting more
stringent standards for HAP sources.
Comment 5: One commenter stated that a quarterly rolling annual
emission determination should not be incorporated into the
alternative emission limitation (AEL). The Early Reductions
Provisions of the Clean Air Act establish an AEL that is related
to verifiable and actual emissions in a base year. The use of a
base year to establish the AEL clearly establishes the AEL as an
annual limit. An annual cap gives the source some flexibility in
managing its air compliance program. For example, emissions from
a busy season could be offset by less emissions during periods of
lower production (IV-D-04).
Response: The EPA agrees with the commenter that the Early
Reductions Provision of the Clean Air Act established an annual
limit on emissions (see also the response to the preceding
comment). Therefore, early reductions permits will not be
required to include an alternative emission limitation based on a
rolling quarterly calculation of HAP emissions from the latest 12
month period (although it will remain an option for the owner or
operator). The limitation will be a cap on calendar year HAP
emissions. However, to track a source's progress toward meeting
the annual limit, early reductions permits will require sources
to make a quarterly calculation of actual HAP emissions from the
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early reductions source and report them to the permitting
authority.
2.3 REPORTING AND RECORDKEEPING
Comment 6; One commenter felt that the proposed 10-day reporting
requirement proposed at §71.25(a)(5) was too restrictive and not
warranted considering that the alternative emission limitation is
based on annual emissions. The 40 CFR part 70 rules for State
comprehensive title V programs provide each State with the
latitude to establish prompt reporting for deviations from permit
terms [§70.6(a)(3)(iii)(B)]. The EPA should follow this example
and allow specialty permit writers to define reasonable reporting
criteria on a case-by-case basis (IV-D-04). Another commenter
thought the 10-day reporting deadline appropriate (IV-D-05).
Response: In response to the comment, EPA is replacing the 10-
day reporting requirement with a provision that will allow the
specialty permits writer the discretion to establish reporting
periods for deviations in each permit on a case by case basis.
The EPA believes this approach is justified in this rule because
most if not all specialty permits will be transferred to the
jurisdiction of the state before renewal. Since part 70 allows
each state the discretion to establish periods for reporting of
deviations, any standard set by EPA in this rule would likely
result in states having to take jurisdiction over permits
containing reporting requirements that vary from those
established in the state program. The EPA believes it is better
to leave the EPA specialty permits writer the discretion, where
appropriate, to establish timelines for reporting of deviations
that are consistent with timelines established in the part 70
program to which the source will ultimately be subject.
Comment 7: The commenter states that the proposed record
retention requirements are excessive, particularly the
requirement to retain "all supporting information." The
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commenter attached extensive comments on this subject that were
previously submitted for the Enhanced Monitoring Rule proposal
and the proposed section 112(d) standard for synthetic organic
chemical manufacturing facilities (IV-D-04).
Response: The part 70 rule for State permitting programs states
that title V permits must contain provisions requiring "Retention
of records of all required monitoring data and support
information for a period of at least 5 years from the date of the
monitoring sample, measurement, report, or application." The
identical language was proposed in this part 71 rule and is
retained in the promulgated rule. However, the fact that records
of all required monitoring information must be retained for 5
years is not automatically overly burdensome. The burden will be
in direct proportion to what is decided, through permit terms and
conditions, to be "required monitoring and support information."
Each permit issued to an early reductions source will contain
monitoring and recordkeeping requirements determined specifically
for that source. These requirements will be based on the EPA's
evaluation of the appropriateness of the source's proposed
monitoring requirements in the permit application, the Clean Air
Act directive to incorporate "enhanced monitoring" on major
sources, the nature of compliance with an annual emissions cap
(i.e., the alternative emission limitation), and the costs
associated with various monitoring strategies. An example of how
factors similar to these affected monitoring decisions for the
section 112(d) standard for the synthetic organic chemical
manufacturing industry can be found in the preamble to that rule,
which was promulgated in the FEDERAL REGISTER on April 22, 1994
(especially pages 19434-19437).
2.4 TIMING AND TRANSITION ISSUES
Comment 8: The commenter addressed EPA's intent to delegate
enforcement of specialty permits to States that demonstrate
having enforcement authority substantially equivalent to that
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described in the part 70 rule (§70.11). The coinmenter supported
EPA's intent to allow States a reasonable level of flexibility in
their enforcement programs, as long as the,"substantially
equivalent" criterion is met. This would expedite the transfer
of permitting and enforcement authority to the States, thus
avoiding duplicate systems (IV-D-04).
Response: The proposed language requiring States to demonstrate
enforcement authority "substantially equivalent" to §70.11 has
remained the same in the final rule.
Comment 9: Two commenters supported the proposed rule provision
[§71.2Kb)] giving EPA the discretion to process and issue
specialty permits where a permit application was submitted to EPA
prior to approval of the State program. One of the commenters
felt this was necessary to avoid confusion and delays inherent in
dealing with two permitting agencies (IV-D-04). The other
commenter thought EPA should have this flexibility, because some
State or local agencies may wish to assume all title V
authorities upon program approval, but others would prefer not to
disrupt an application in process (IV-D-05).
Response: The provision will be promulgated as proposed.
Comment 10: The commenter considers it imperative that an early
reductions participant have a permit before the source becomes
subject to the relevant section 112(d) standard. The commenter
also wants the EPA to clarify that compliance with the terms of
an enforceable early reductions permit exempts a source from
case-by-case review under section 112(g) of the Act. The
commenter feels that early reductions participants should not be
subject to section 112(g) requirements even before a permit is
issued. A source participating in the Early Reductions Program
should not be required to obtain a permit to be shielded from
section 112(g); companies will be making changes at their
facilities before the permit can be issued (IV-D-03).
Response: The Early Reductions Provisions of the Clean Air Act
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allow a source demonstrating sufficient reductions to meet an
alternative emission limitation, instead of an otherwise
applicable section 112(d) standard, for a period of six years
beyond the section 112(d) compliance date. Until it expires the
alternative emission limitation takes the place of the section
112(d) standard. Therefore, compliance with the alternative
emission limitation essentially is the same as compliance with a
section 112(d) standard, and section 112(g) would not be
triggered by any allowable emission increases within the
emissions cap established by the alternative emission limitation.
Prior to issuance of a permit granting a compliance
extension and establishing an alternative emission limitation, a
source planning to demonstrate early reductions is not protected
.from the possible effects of section 112(3). However, emissions
at such a source should be decreasing dramatically, hopefully
preventing triggering 112(g).
Comment 11: TWO commenters agreed with EPA's position that an
early reductions permit should be incorporated, without
reopening, into a source's comprehensive title V permit (IV-D-
03,IV-D-04). states should not be given the option of
eliminating operational flexibility, the permit shield, or the
upset provision from an early reductions permit (IV-D-03, IV-D-
04). Another commenter believed that State and local agencies
should have the right to reopen specialty permits when they are
incorporated into a facility's comprehensive title V permit
particularly for the purposes of excluding certain elements'of
the specialty permit, such as the permit shield, operational
flexibility, etc. This would allow State and local agencies to
maxntain consistency among their title V permits. Moreover the
commenter recommended that EPA develop specialty permits as'a
module that may be inserted into the comprehensive permit in a
reserved section. This would facilitate incorporation,
especially when reopening is not necessary (IV-D-05)
Eesponse: The EPA cannot prohibit states from reopening
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specialty permits after they are transferred to the state to
administer. However, any permit reopening must, pursuant to 40
C.F.R. §70.7(f)(2), include an opportunity for EPA veto. The EPA
thus will have the opportunity to review any permit reopening so
as to ensure that the requirements of the Act, including section
H2(i)(5), are complied with. Once an Alternative Emissions
Limit has been established in a specialty permit issued by EPA
there should, in general, be no reason to alter that emissions'
limit when the permit is transferred to the state.
However, other aspects of the EPA permit will not be so
fixed. Once a permit has been transferred to the state the
permit then becomes subject to the permitting procedures of the
state's part 70 program. So, for instance, if the state's
program does not provide a permit shield, the source could not
enuoy a shield though it may have had one under the Federal
specialty permits program. If the EPA-issued permit expressly
provided for a shield, then the state should, for the sake of
clarity, reopen the permit to delete the shield provisions
The EPA expects that similar results will obtain for any
permit terms that are dictated by procedures of general
applicability (such as the shield or permit revision procedures)
as opposed to permit terms that are uniquely tailored to the
source (such as the AEL), which should not change when the permit
is transferred.
Comment 12; The commenter stated that there should be
flexibility regarding when State and local agencies assume
responsibility for the Early Reductions Program to accommodate
those State and local agencies that wish to obtain early
delegation. Furthermore, issues regarding the delegation of the
Early Reductions Program should be worked out between the EPA
Regional Offices and the involved State or local agency (iv-D-
05)
Response; The EPA has provided for States or local agencies to
obtain early delegation to implement the Early Reductions Rule,
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specifically through the delegation process under a rule
promulgated pursuant to section 112(1) Of the Clean Air Act.
2.5 MISCELLANEOUS
Conment^jLS: TVo commenters believe it is important to retain the
permit shield (IV-D-03, IV-D-04). The shield could become
important in States with different interpretations of the Early
Reductions Rule (IV-D-03); without the shield continuing changes
in interpretations and/or changes in permit requires during
the life of the permit would undermine a permittee's efforts to
develop meaningful programs to assure compliance (IV-D-04)
Ee^onse: Specialty permits issued by EPA will include a permit
shield that states that compliance with the terms and conditions
of the specialty permit constitutes compliance, for the defined
early reductions source only, with the applicable requirement
from section 112 (d) of the Act. As discussed in the response to
comment u, once a State incorporates a specialty permit into the
comprehensive title V permit issued to a facility, the State
title V program rules regarding a permit shield will apply and it
is possible that the State would not provide such a shield.
14: The counter -recommended that EPA explicitly state
in the specialty permit rule that the terms and conditions of a
specialty permit do not supercede any existing State requirements
regarding allowable emissions, emissions trading, modifications
permit renewals, etc. Furthermore, the existence of a specialty
permit does not prevent a State from promulgating additional
requirements for protection of public health and safety (iv-D-
d°' °f ' ""« the right to pass standards
or other rules and regulations that are stricter than EPA's The
preamble to the promulgated Early Reductions Permits Rule reminds
participants that a compliance extension granted under the Early
Reductions Program applies only to section 112 (d) standards the
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source otherwise would be subject to, and does not exempt the
source from complying with other EPA regulations or State or
local agency regulations.
Comment_i5: Two petitions for review of a chemical on the list
of "high-risk" pollutants have been filed in the Court of
Appeals. The commenter felt that if either or both of these
petitions are granted, the EPA should extend the deadline for
participation in the Early Reductions Program for facilities that
emlt the affected chemical(s). The reason for this is that
emission of one unit of a "high-risk" pollutant must be offset by
a reduction of ten units or more (depending on the factor
assigned by EPA) of other pollutants according to the Early
Reductions Rule. This requirement has made it difficult, if not
practically impossible for a source that emits significant levels
of a high-risk pollutant to participate in the Early Reductions
Program (IV-D-02).
Response: Section 112 (i) (5) of the Clean Air Act requires a
source to demonstrate a 90 (95) percent reduction of HAP
emissions from base year levels to obtain a compliance extension
A source emitting a single HAP would have to reduce emissions of"
that HAP by 90 (95) percent to qualify, regardless of whether the
HAP is a high-risk pollutant. There is no greater reduction
requirement for high-risk pollutants. For sources emitting more
than one HAP, the owner or operator is allowed to demonstrate a
composite reduction of 90 (95) percent across all HAP emitted
Thus, the owner or operator has the option to reduce some of the
HAP emissions by more than 90 percent and others by less, as long
as the composite reduction is 90 percent of total HAP emissions
The only limitation on this allowed "averaging" of the HAP
reductions occurs when an owner or operator chooses to
undercontrol (i.e., control by less than 90 percent) a high-risk
pollutant emitted. In this situation, the owner or operator
would have to offset the undercontrol by achieving overcontrol of
some other HAP(s) emitted by the source. The amount of
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overcontrol required is equal to the amount of undercontrol times
the appropriate high-risk pollutant weighting factor (usually 10
or 100). However, the owner or operator always can control the
high-risk pollutants by 90 percent to avoid the offset
requirement. Therefore, EPA disagrees that it is "difficult, if
not practically impossible" for sources emitting significant
quantities of high-risk pollutants to participate in the Early
Reductions Program. In fact, many such sources currently are
participating.
Moreover, section 112(i)(5) of the Act establishes the
deadline by which early reductions must be achieved, either
January 1, 1994 for sources making enforceable commitments or the
date of proposal of an otherwise applicable section 112(d)
standard for all other participating sources. This statutory
deadline cannot be changed by EPA.
(Note: On October 21, 1994, EPA promulgated in the Federal
Register (59 FR 53109) an amendment to the Early Reductions Rule
deleting acrylic acid from the list of high-risk pollutants.
That final action also removed methylene diphenyl diisocyanate
(MDI) from the list. The EPA's listing of MDI as a high-risk
pollutant was vacated by the United States Court of Appeals for
the District of Columbia Circuit on July 19, 1994.)
Comment 16: The commenter states that EPA should not collect
fees under the part 71 specialty permit program. Most States are
already charging fees based on emissions, and industry should not
have to pay again on these same emissions. Assessing fees would
penalize sources that elect to undertake early reductions.
Response: The EPA has decided not to collect fees for issuing
permits under this interim permitting program. However, States
delegated authority to issue specialty permits may at their
discretion collect such fees.
Comment 17: The commenter objects to the requirement that
notices of permit actions be sent to "any unit of local
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government having jurisdiction over the area where the early
reductions source is located..." The requirement should be
limited to those units of local government with authority for
regulating air pollution. Other agencies, to the extent they may
be interested, will be put on notice through the notice by
publication provisions (IV-D-04).
Response: The EPA agrees with the commenter. The final rule has
been revised to clarify this point.
Cornmen^s: The proposed deadline at §71.24 (b) (1) is unclear and
potentially in conflict with the requirements of the Early
Reductions Rule [§63.77(c)(1)]. The deadline language should
mirror that in the Early Reductions Rule (IV-D-04).
Response: Although intended to convey the same application
deadline, the wordings at the cited paragraphs are slightly
different in the two rules. The EPA agrees with the commenter
that the deadline wording should be identical, and the specialty
permits rule has been changed to use the Early Reductions Rule
language at §63.77(c)(1) .
CoMQen^i9: The duty to supplement or correct an application
[§71.24(d)] should provide for a reasonable amount of time in
whxch to act, particularly in situations where revised regulatory
requirements cause the need to revise the application The
commenter suggests a maximum 120 day response time (IV-D-04)
Response: Although no such deadline appears in the rule, the
permitting authority has the discretion to set such deadlines as
the need arises.
Cornment^O: The regulation at proposed §71.24 (e) should clearly
state that information need not be submitted in a computerized
format unless the EPA has finalized the Aerometric Information
Retrieval System (AIRS) formatting requirements for submission of
txtle V permit information at least 120 days before a permit
application is due. Changing the format after initiating the
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preparation of the permit application will significantly add to
the resources required and is therefore inappropriate (IV-D-04)
Response: Since final AIRS format requirements have not been
available to Early Reductions Program participants to date and
because the specialty permits program is a short-lived, interim
program, the language requiring AIRS compatible permit
application data has been dropped.
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1. REPORT NO.
EPA-453/R-94-061b
TECHNICAL REPORT DATA
(Please read Instructions on reverse before completing)
2.
4. TITLE AND SUBTITLE
Federal Operating Permit Programs: Permits for Early
Reductions Sources - Background Information for
Promulgated Rule
7. AUTHOR(S)
3. RECIPIENT'S ACCESSION NO.
5. REPORT DATE
November 1994
6. PERFORMING ORGANIZATION CODE
9. PERFORMING ORGANIZATION NAME AND ADDRESS
U.S. Environmental Protection Agency
Office of Air Quality Planning and Standards
Research Triangle Park, NC 27711
_
12. SPONSORING AGENCY NAME AND ADDRESS
Director
Office of Air Quality Planning and Standards
Office of Air and Radiation
U.S. Environmental Protection Agency
Research Triangle Park, NC 27711
15. SUPPLEMENTARY NOTES
8. PERFORMING ORGANIZATION REPORT NO.
10. PROGRAM ELEMENT NO.
11. CONTRACT/GRANT NO.
13. TYPE OF REPORT AND PERIOD COVERED
14. SPONSORING AGENCY CODE
EPA/200/04
16. ABSTRACT
PR 68804, December 29 993)^PA reZL t/th COmments received on the proposed rule (58
the rule since proposal responses to the comments, and a summary of changes made to
17.
DESCRIPTORS
Air Pollution, Hazardous Air Pollutants Early
Reductions, Permits, Federal Operating Permits
KEY WORDS AND DOCUMENT ANALYSIS
b. IDENTIFIERS/OPEN ENDED TERMS
~"~ r
Air Pollution control
18. DISTRIBUTION STATEMENT
Release Unlimited
__
EPA Form 2220-1 (Rev. 4-77) PREVIOUS EDITION IS OBSOLETE
19. SECURITY CLASS (Report)
Unclassified
20. SECURITY CLASS (Page)
Unclassified
c. COSATI Field/Group
13B
21. NO. OF PAGES
27
22. PRICE
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