OFFICE OF INSPECTOR GENERAL
Evaluation Report
Substantial Changes Needed in
Implementation and Oversight of
Title V Permits If Program Goals Are
To Be Fully Realized
Report No. 2005-P-00010
March 9, 2005
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Report Contributors:
Abbreviations
ACC
ANPR
CAA
CAM
CFR
CO
EPA
FR
FY
GOP
IBR
IEU
MACT
MOA
NAAQS
NOD
NOX
NSR
OAQPS
OAR
OECA
OIG
PM
SB
SIC
SIP
S02
VOC
John Bishop
Geoff Pierce
Sarah Turpin
Andrew Lavenburg
Steve Schanamann
Annual Compliance Certification
Advanced Notice of Proposed Rulemaking
Clean Air Act
Compliance Assurance Monitoring
Code of Federal Regulations
Carbon Monoxide
U. S. Environmental Protection Agency
Federal Register
Fiscal Year
General Operating Permit
Incorporation by Reference
Insignificant Emissions Unit
Maximum Achievable Control Technology
Memorandum of Agreement
National Ambient Air Quality Standards
Notice of Deficiency
Nitrogen Oxide
New Source Review
Office of Air Quality Planning and Standards
Office of Air and Radiation
Office of Enforcement and Compliance Assurance
Office of Inspector General
Particulate Matter
Statement of Basis
Standard Industrial Classification
State Implementation Plan
Sulfur Dioxide
Volatile Organic Compound
Cover Photo:
Cover and page 3 photo of EPA's Brochure on the Air Pollution Operating Permit Program Update, Key
Features and Benefits, EPA/45l/K-98/002, Feb. 1998 (photo by S.C. Delaney/EPA). According to EPA's
photo caption, "The operating permit program covers most significant sources of air pollution in the
United States. The more complex sources, such as large petroleum refineries and chemical production
plants, can have hundreds or even thousands of emission points. "
Source: http://www.epa.gov/air/oaqps/permitupdate/
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U.S. Environmental Protection Agency
Office of Inspector General
At a Glance
2005-P-00010
March 9, 2005
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
INSPECTOR GENERAL
March 9, 2005
MEMORANDUM
SUBJECT: Final Evaluation Report:
Substantial Changes Needed in Implementation and Oversight of Title V
Permits If Program Goals Are To Be Fully Realized
Report No. 2005-P-00010
FROM: Kwai-Cheung Chan /si
Assistant Inspector General for Program Evaluation
TO: Jeffrey R. Holmstead
Assistant Administrator for Air and Radiation
Attached is our final report regarding implementation and oversight of the Clean Air Act's Title V
Operating Permits Program. This report contains findings regarding EPA's need to issue national
guidance related to Title V permitting activities and to improve oversight of State and local
permitting programs. Also, the report contains corrective actions the Office of Inspector General
(OIG) recommends. This report represents the opinion of the OIG, and the findings contained in
this report do not necessarily represent the final EPA position. Final determination on matters in
this report will be made by EPA managers in accordance with established procedures.
EPA's Office of Air and Radiation provided us with a response on February 7, 2005, that
consolidated its comments to the draft report with those from the Office of Enforcement and
Compliance Assurance and EPA's regional offices. We included EPA's consolidated response in
its entirety as Appendix F.
Action Required
In accordance with EPA Manual 2750, as the action official, you are required to provide this office
with a written response within 90 days of the final report date. Since this report deals primarily
with the EPA Office of Air and Radiation's Title V Program, the Assistant Administrator for Air
and Radiation was designated the primary action official. As such, he should take the lead in
coordinating the Agency's response. The response should address all recommendations. For the
corrective actions planned but not completed by the response date, please describe the actions that
are ongoing and provide a timetable for completion. If you do not concur with a recommendation,
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please provide alternative actions addressing the findings reported. We appreciate the efforts of
EPA officials and staff, as well as external stakeholdeis, in working with us to develop this report.
For your convenience, this report will be available at http://www.epa.gov/oig.
If you or your staff have any questions regarding this report, please contact me at (202) 566-0827,
Rick Beusse, Director for Program Evaluation - Air Issues, at (919) 541-5747, or John Bishop,
Assignment Manager, at (919) 541-1028.
Additional Distribution
Thomas V. Skinner
Acting Assistant Administrator for Enforcement and Compliance Assurance
Robert W. Varney
EPA Region 1 - Regional Administrator
Kathleen Callahan
EPA Region 2 - Acting Regional Administrator
Donald S. Welsh
EPA Region 3 - Regional Administrator
James I. Palmer, Jr.
EPA Region 4 - Regional Administrator
Bharat Mathur
EPA Region 5 - Acting Regional Administrator
Richard Greene
EPA Region 6 - Regional Administrator
James B. Gulliford
EPA Region 7 - Regional Administrator
Robert Roberts
EPA Region 8 - Regional Administrator
Wayne Nastri
EPA Region 9 - Regional Administrator
Ron Kreizenbeck
EPA Region 10 - Acting Regional Administrator
-2-
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Table of Contents
At a Glance
Chapters
1 Introduction 1
Purpose 1
Background 1
Scope and Methodology 4
Results in Brief 5
2 Improvements Needed in Clarity and Completeness of
Title V Permits if Goals Are To Be Realized 8
Improvements Needed in Permit Clarity 8
Some Statements of Basis Missing Key Elements 16
Monitoring Provisbns in Permits Varied, Adequacy Questioned 18
Improvements Needed in Annual Compliance Certification Content ... 29
Practical Enforceability Concerns with Some Permits 32
Conclusions 36
Recommendations 37
Agency Comments and OIG Evaluation 38
3 EPA's Oversight and Guidance Have Improved
State Title V Programs, But Gaps Remain 39
Regional Reviews of Title V Permits Generally Met OAR Goals 39
EPA Responsiveness to Public Petitions Needs to Improve 42
Most NOD and Commitment Letter Issues Have Been Resolved 44
Stakeholders Identified Needs for Title V Guidance 48
Conclusions 51
Recommendations 51
Agency Comments and OIG Evaluation 52
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4 Despite Some Problems, Title V Has Generally
Improved Implementation of the Clean Air Act 53
Expected Benefits Of Title V 54
Most Stakeholders Cited Anecdotal Benefits of Title V 54
Improved Air Pollution Control Programs 56
Improved Enforcement and Faster Compliance 58
Consolidation of Requirements and Regulatory Certainty 60
Benefits to Public Participation 61
EPA and Industry Views of Title V Differed 62
Results of OIG Review of Pre- and Post-Title V Permits 63
Conclusions 65
Recommendations 65
Agency Comments and OIG Evaluation 65
Appendices
A Definition of Major Stationary Source 66
B Details on Scope and Methodology 68
C Observations on Statements of Basis and Annual Compliance
Certifications In Four States Reviewed 74
D EPA, State, and Local Agency Roles and Responsibilities in
Implementing Title V 78
E Status of EPA Regional Evaluations and Notices of Deficiencies 80
F Consolidated Agency Response to Draft Report and OIG Evaluation 81
G Texas Response to Draft Report and OIG Evaluation 96
H Ohio Response to Draft Report and OIG Evaluation 102
I Distribution 109
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Chapter 1
Introduction
Purpose
The Office of Inspector General (OIG) initiated this evaluation to assess the extent
to which Clean Air Act (CAA) Title V operating permits have adequately
incorporated key Title V requirements and met the congressionally-mandated
goals of the program. Once authorized by the U. S. Environmental Protection
Agency (EPA), State and local agencies issue Title V operating permits to major
air pollution sources throughout the country, permitting these major sources to
operate within applicable CAA requirements. Major sources, the largest emitters
of air pollution, are generally sources with annual emissions potentials that meet
or exceed levels specified in the CAA. (See Appendix A for a more detailed
definition of major source.) A properly implemented Title V program can not
only provide assurance of major source compliance, but also reduce air pollution
emissions, increase regulatory certainty, and improve air quality.
Within the last several years, potentially significant problems related to the
adequacy of CAA Title V operating permits have been identified as a result of
lawsuits, public petitions, and other sources. Concerns have been raised regarding
the overall clarity and completeness of Title V permits, and that selected permits
were lacking relevant air quality protections; deficient in emissions monitoring
requirements; had insufficient provisions for public participation, notification, and
oversight; and contained inadequate enforcement provisions. At the same time,
some industry representatives and others have questioned whether Title V is
achieving its goals. As such, the objectives of our evaluation were to determine
whether:
• selected Title V permits were clear and contained adequate provisions
consistent with key Title V requirements.
• EPA's Title V oversight and guidance provided to State permitting authorities
contributed to improving the implementation of Title V.
• the Title V program has achieved its congressionally-mandated goals of
improving the implementation and enforcement of the CAA.
Background
Importance of Title V Permits
One of the primary purposes of Title V permits is to reduce violations of air
pollution regulations and improve the enforcement of those regulations. Prior to
passage of the CAA Amendments of 1990, major sources of air pollution were not
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required to have federally enforceable operating permits. The requirements for
these sources were often scattered among multiple documents, making it difficult
to determine compliance and therefore difficult to provide effective enforcement
of CAA regulations. Although some States did implement their own operating
permit programs to regulate major sources, others did not. Even for those with
permit programs, difficulties sometimes arose with Federal enforcement of State
regulations.
The Title V operating perniit requirement provides for a federally-enforceable
document that contains all air quality requirements for an individual major source.
Though Title V does not generally impose new air quality control requirements, it
does require permits to contain monitoring, reporting, and record-keeping
provisions to ensure source compliance with existing CAA regulations. Because
these permits are federally enforceable, Title V permits provide Federal and State
entities, as well as the general public, with a means of holding major sources
accountable for all applicable air quality requirements.
Origin and Intent of the Title V Program
The CAA Amendments of 1990 established the statutory authority for the Title V
operating permits program. Congress' main goal in establishing the Title V
program was to achieve a broad-based tool to aid in implementing the CAA
effectively and enhancing enforcement. Within this overarching goal, Congress
intended the Title V program to realize nine more specific goals, as follows:
1. improving State air pollution programs through better emissions inventories,
2. providing resources through Title V fees,
3. providing a vehicle for implementing the air toxics and acid rain programs,
4. improving enforcement,
5. achieving faster compliance,
6. requiring compliance certifications from facility operators,
7. listing all the applicable regulatory requirements in one document,
8. providing regulatory certainty, and
9. improving public participation.
In July 1992, EPA published rules and regulations for implementing State air
quality permitting systems, mandated by Title V, in Title 40 of the Code of
Federal Regulations (CFR), Part 70 (Part 70). EPA stated, in the preamble to Part
70, that the Title V program would generally clarify which requirements apply to
a major source by incorporating them into a single document. They further stated
that the program would enable the source, States, EPA, and the public to identify
the requirements to which the source was subject, and whether the source was
meeting those requirements. (See Appendix D for EPA, State, and local agency
roles and responsibilities in implementing Title V.) Although the 1990 CAA
Amendments and the 1992 publication of Part 70 set the Title V program into
motion, it took several years before State and local permitting authorities began to
issue Title V permits.
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Current Status of the Title V Program
According to the time line established by the CAA Amendments in 1990, all
initial Title V permits should have been issued by 1997, and were to be renewed
every 5 years. As of June 30,2004, State and local permitting authorities had
issued 91 percent (15,658 of 17,274) of the required Title V permits. While many
State and local permitting authorities have initially issued all their Title V permits,
other permitting authorities have issued as little as 57 percent of permits applied
for. Generally, those major sources that are not yet permitted are the largest, most
complex sources, and thus require more permitting authority resources to issue
those Title V permits. Further complicating issuing these Title V permits is that
many major sources throughout the country are approaching the 5-year renewal
time for their existing permits, so that now some permitting authorities must
juggle the task of initial issuances with that of permit renewals.
After EPA wrote the Part 70 rules governing implementing Title V, most States
received interim program approval for two years which allowed them to begin
issuing permits. For a number of States, EPA extended the interim approval
periods twice. Because the CAA states that interim approvals can only be for two
years and cannot be extended, the Sierra Club and the New York Public Interest
Research Group sued EPA on this issue. The lawsuit resulted in a settlement in
which EPA agreed to address issues in State rules related to Title V in order to
approve or disapprove their plans. EPA agreed to issue a Federal Register (FR)
notice requesting letters from citizens containing their comments about Title V.1
According to Office of Air Quality Planning and Standards (OAQPS) officials,
after the FR notice was issued in December 2000, EPA received 34 letters from
citizens that contained 350 Title V-related issues of concern affecting 20 States.
In response, EPA divided the issues into regulatory and implementation
categories. The regulatory category dealt with those issues regarding Federal and
State regulations and rules affecting Title V; the implementation category dealt
with issues related to administering and enforcing Title V.
As a result of the public comment period, EPA issued Notices of Deficiency
(NODs) to certain permitting authorities to address the regulatory issues, and
obtained commitment letters from a number of State and local permitting
authorities to address the implementation issues. Ultimately, EPA issued NODs
to 8 States, 34 local permitting authorities in California, and the District of
Columbia, directing them to correct these regulatory issues. Many permitting
authorities addressed multiple implementation issues by providing commitment
letters to EPA. All 112 State and local permitting authorities' Title V programs
have now received final approval from EPA.
'See Sierra Club v. Envtl. Protection Agency, 322 F.3d 718 (D.C.Cir. 2003); Public Citizen v. Envtl.
Protection Agency, 343 F.3d 449, 454 (5th Cir. 2003).
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Scope and Methodology
To address questions regarding the adequacy of permit clarity and whether
permits contained provisions that were consistent with key Title V requirements,
we interviewed officials from OAQPS, environmental and industry groups, key
air and enforcement officials in all 10 EPA Regions, and State permitting
authorities. We conducted extensive Internet literature searches of Title V-related
issues. We supplemented these searches by reviewing public petitions detailing
citizen complaints against State Title V programs and individual permits, and
lawsuits filed against State permitting authorities and EPA. We also analyzed
EPA and State guidance on Title V permit writing and reviewing, including
guides designed to aid the public in effectively participating in the Title V
program. Our approach included a detailed review of selected permits in New
York, North Carolina, Ohio, and Texas. We used a data collection instrument to
review 40 permits (10 permits in each State), representing a range of industries,
including all supporting documentation and compliance reports. Appendix B
provides a more detailed discussion of our data collection instrument and the
sampling methodology we used.
To assess the effectiveness of EPA oversight and guidance, we examined EPA
regional efforts to review individual permits and conduct evaluations of their
respective State and local agencies' Title V permit programs, according to their
agreements with the Office of Air and Radiation (OAR). We also sought to
determine if the issues raised in NODs and commitment letters had been
addressed and resolved by the relevant permitting authorities. We accomplished
this objective through reviewing selected permits and other documentation,
interviewing OAQPS and EPA regional officials, and reviewing the status of EPA
Title V guidance and rules with key stakeholders.
To determine whether Title V improved the implementation of the CAA, we
interviewed representatives from all 10 EPA regions using a structured interview
form. We also interviewed representatives from multiple additional stakeholder
groups, including OAQPS, the Office of Enforcement and Compliance Assurance
(OECA), permit writers and reviewers from selected State permitting authorities,
environmental groups, and industry representatives. Using the data collection
instrument discussed above, we also reviewed actual permits from a selected
number of States and compared their content and requirements to pre-Title V
State permits, where available. Because empirical data on benefits has not been
maintained, the information we collected on Title V implementation was largely
testimonial; however, we incorporated empirical evidence wherever possible.
Appendix B provides more details on the structured interview form and
methodology used.
We performed this evaluation in accordance with the Government Auditing
Standards, issued by the Comptroller General of the United States. We conducted
our fieldwork from September 2003 to October 2004.
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Prior Audit/Evaluation Coverage - See Appendix B for a detailed list of prior
OIG and Government Accountability Office (GAO) audits and evaluations related
to Title V issues.
Results in Brief
Adequacy and Completeness of Title V Permits Needs Improvement
Substantial improvements are needed in the clarity and adequacy of Title V
permits. According to our analysis, the clarity of Title V permits, the sufficiency
of monitoring provisions incorporated into permits, and the adequacy of
statements of basis (SBs) and annual compliance certifications (ACCs) varied
significantly across permitting authorities. Factors such as extensive use of
incorporation by reference, failure to fully cite applicable regulations, complex
permit format, and lack of detail in source requirements for testing, monitoring,
and reporting negatively affected permit clarity. The sufficiency of monitoring
provisions in Title V permits was frequently a function of the underlying State
and Federal regulations. Our review of 40 State-issued Title V permits found that
90 percent of those permits included some type of gap-filling provision(s) where
the underlying regulations contained either no monitoring or insufficient
monitoring requirements. This condition indicated a potential lack of sufficient
monitoring requirements in State and Federal regulations. The ability of
permitting authorities to improve monitoring provisions in Title V permits has
been affected by court rulings on periodic monitoring and by EPA's recent
umbrella monitoring rule.
The content of permit statements of basis varied substantially between permitting
authorities and, in some cases, within permitting authorities. EPA responses to
public petitions and EPA regional guidance provided a limited basis for the
content of the statements of basis. However, EPA has made no successful attempt
to provide consistency for statement of basis content. We noted a similar trend
with respect to the criteria regarding ACCs under Title V. The adequacy of ACCs
varied among permitting authorities. Our review also revealed evidence of
problems related to the practical enforceabiliry of permits. Overly general
monitoring and testing requirements potentially affected the practical
enforceability of some of the permits we reviewed.
EPA Oversight Could Be More Effective
EPA's oversight of Title V activities has resulted in some improvements in State
Title V programs; however, more improvements are needed. Until Fiscal Year
(FY) 2003, EPA's OAR emphasized, through Memorandums of Agreement, EPA
regional office review of permits. The EPA regions largely met or exceeded this
review initiative in FY 2002 and 2003 and frequently commented on permits
reviewed. However, most EPA regions did not issue formal objections resulting
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from these reviews, citing that, instead, they worked with permitting authorities
early in the permitting process to avoid issuing objections to permits. In 2003,
OAR shifted emphasis from EPA regional permit reviews to program evaluations
of State Title V programs. Thirty-one such evaluations were completed in 2003
and 2004; however, only 14 final reports on these evaluations have been issued.
In addition, EPA has not responded to public petitions filed against Title V
permits in a timely manner. Although the CAA mandates that EPA respond to
many of these petitions within 60 days, the average EPA response time to public
petitions has been approximately 12 months. EPA region and OAQPS officials
attributed the delays to a shortage in resources, and to the time required to
coordinate efforts between multiple offices within EPA to formulate responses to
the petition. One key official at OECA indicated that responding to public
petitions has not been a high priority within EPA.
In 2001 and 2002, EPA issued 10 NODs to permitting authorities to address
regulatory problems in their Title V programs. EPA also received 23 commitment
letters from State and local permitting agencies during this period to address
implementation problems in their Title V programs. States have resolved the
majority of issues identified in NODs and commitment letters, with remaining
issues unresolved in Ohio, Hawaii, and Texas. The resolution of the majority of
NOD and commitment letter issues has resulted in improvements to various
aspects of Title V programs and permits, including improved definitions of
"prompt reporting of deviations" in regulatory language, improved statements of
basis, and clearer citations to the origin of authority for permit terms and
conditions. Although NOD issues are tracked and their status is noted in the FR,
OAR does not track or monitor the resolution of commitment letter issues.
OAR has issued very limited formal guidance and rules on Title V in the past
several years. In lieu of formal guidance, the Agency has relied on public petition
responses and letters to regions and permitting authorities to convey its position
on key Title V issues. Many of the key stakeholders we interviewed cited a need
for greater national consistency in the Title V program and indicated a desire for
guidance on periodic monitoring, as well as the minimum required content of
statements of basis and ACCs.
Benefits of the Title V Program
Overall, Title V has improved implementing the CAA. Most stakeholders told us
that Title V has been partially successful in meeting seven congressional Title V
goals (better emissions inventories, consolidated regulations, facility operator
certainty, public participation, faster implementation of control requirements, fee
programs, and periodic compliance reporting). However, industry representatives
held a different view of Title V, stating that it has not accomplished its intended
goals, and has, instead, imposed a substantial cost on facilities. Most key
stakeholders also cited a number of additional benefits of Title V, including
enhanced implementation of key CAA provisions, significant improvements in
listing all requirements in one document, requirement for ACCs, and Federal
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enforceability of permits. Our comparison of pre- and post-Title V permits for
our sample of 40 permits in 4 States found that pre-Title V permits generally did
not record all CAA requirements in one document, contain an ACC requirement,
provide for public participation, or grant the public the right to object to permits.
Recommendations
We are making a number of recommendations to the Assistant Administrator for
Air and Radiation, the Assistant Administrator for Enforcement and Compliance
Assurance, and the EPA Regional Administrators to improve Title V
implementation and enforcement and better ensure that program goals are
realized. Specific recommendations are at the end of each chapter.
EPA's Office of Air and Radiation provided us with a response to our draft report
that consolidated its comments with those of EPA regions and the Office of
Enforcement and Compliance Assurance. The Agency generally disagreed with
our findings, conclusions, and recommendations related to issuing nationwide
guidance on the Title V program, but largely agreed with our findings that the
Title V program could benefit from improvements in permit content and EPA
oversight.
Our evaluation called for EPA to issue nationwide guidance on statement of basis
(SB) and annual compliance certification (ACC) content to assure that permitting
authorities are consistently incorporating key elements in both documents. EPA,
however, stated that guidance for SB content could be found in public petitions
responses and should be kept flexible to allow for differences in source
complexity. They also stated that they have not seen widespread problems with
either SB or ACC content. We maintain our position that national guidance is
needed in each of these areas. Our findings indicated that permitting authorities
may not have been aware, or may have been reluctant to follow, "guidance" that
was not issued nationally (such as EPA statements issued in response to Title V
permit petitions).
EPA agreed to follow through on various actions recommended in our report,
including issuing the draft rule on intermittent versus continuous compliance
monitoring, completing its commitment to develop periodic monitoring guidance,
reviewing the adequacy of monitoring provisions in state implementation plans,
and promulgating the order of sanctions rule. The Agency also agreed to develop
five-year plans combining oversight with permit review and audits to ensure
proper implementation of the Title V program, and to work to devise a procedure
to reduce response times to public petitions.
We revised the report based on EPA's February 7,2005, consolidated response
and updated information, as appropriate. The Agency's consolidated response
and our evaluation of that response are in Appendix F.
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Chapter 2
Improvements Needed In Clarity and Completeness
of Title V Permits If Goals Are To Be Realized
Various officials in EPA, and in environmental and industry groups, identified
several problems concerning the clarity and content of key elements of Title V
permits:
• the clarity of Title V permits,
• the content and adequacy of statements of basis (SBs),
• the adequacy of monitoring provisions,
• the content and adequacy of annual compliance certifications (ACCs), and
• the practical enforceability of permits.
We found similar problems in each of these areas while reviewing a sample of
Title V permits in four States. Inadequate monitoring requirements in some State
and Federal regulations and a lack of clear EPA guidance on certain key Title V
elements contributed to permit problems. Collectively, these problems can
hamper the ability of EPA, State and local regulators, and the public to understand
what requirements sources are subject to, how they will be measured, and
ultimately to hold them accountable for all applicable air quality requirements.
Improvements Needed in Permit Clarity
Officials in OAQPS, OECA, 9 of 10 EPA regional air offices, and environmental
and industry group representatives told us they had concerns about various
elements of permit clarity nationwide.2 Comments from officials in these groups
included the following: permits lack sufficient detail, do not clearly cite applicable
requirements, and are difficult for the public to understand. In reviewing State
permits, we also found many permit clarity-related problems, including:
Interpretation of permit clarity can vary depending on individual perspective. For the purposes of our
evaluation and this report, we interpreted permit clarity as referring to the extent to which specific key permit
elements, by their adequacy or lack thereof, affect the ability of outside reviewers to determine what requirements
apply to a source and what is expected of the source in terms of meeting emissions limitations. Translating complex
regulations into source-specific requirements such that the facility personnel, EPA and State regulators, and the
public could clearly identify what is expected and how it would be measured, were among the original goals of
having Title V permits.
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• extensive incorporation by reference (IBR),3
• failure to fiilly cite underlying regulations,
• lack of specificity of source requirements for testing, monitoring, and
reporting, and
• complex permit format.
Permit clarity was also affected by a lack of identifying, or explaining,
streamlining in the permit's statement of basis (SB). Officials in some of the
States we visited asserted that Title V permits are complex engineering
documents, and are thus, by their nature, not easy documents to read and
understand. We found that problems with these key elements in Title V permits
can negatively affect the clarity and adequacy of already complex documents.
These problems make it more difficult for EPA, State, and local regulators,
industry and environmental groups, and the general public to readily discern
which CAA requirements apply to a facility and what the facility must do to
demonstrate compliance with emissions limitations.
Title V Stakeholders Identified Problems in Permit Clarity
Officials at OAQPS expressed concern about Hie effect of permit clarity problems
on public participation and on permit reviews. According to one key OAQPS
official, permits in some States can be "incomprehensible," making them difficult
and contusing to review. He also noted that permits are more complex in States
such as California, that have complex and extensive State-level environmental
regulations. According to another key OAQPS official, in some States the
extensive use of IBR is a significant problem. A key OAQPS official also
asserted that the public regularly complains about the lack of permit clarity and
complex permit format.
During FYs 2002 and 2003, most EPA regions reviewed samples of Title V
permits issued by one or more of their respective permitting authorities pursuant
to provisions in memorandums of agreement (MO As) between OAR and EPA
regions4 and provided comments regarding the adequacy of permit content.
Given their experience with Title V permits, we asked EPA regional officials
what patterns, if any, appeared in their review comments. Officials from six
EPA regions said that they had commented on one or more of the following
permit clarity problems:
• permits lacked sufficient detail,
• use of streamlining needed to be explained more clearly,
'incorporation by reference (IBR): The process in which a permitting authority lists only a reference, or
citation to, the underlying requirement that the source is subject to instead of providing both (he citation and a
narrative description of the requirement. To determine what the source must actually comply with, the reader must
refer to the citation in the State or Federal regulations.
See page 39 for more information on permit review provisions in MOAs between OAR and EPA regions.
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• permits included inappropriate permit shields,
• permits did not clearly cite State Implementation Plan (SIP) requirements,
and
• permits were missing applicable requirements.
We also asked EPA regional officials to assess the strengths and weaknesses of
various aspects of Title V permits, including permit clarity, for permitting
authorities within their respective regions.5 While EPA regional officials told us
that permit clarity is generally adequate among most permitting authorities, they
also identified some problem areas. Some EPA regional officials cited permit
clarity as a strength in certain permitting authorities, noting that their permits
were well-written, formatted in a user-friendly manner, and easy to read.
However, as shown in Table 2.1 below, EPA officials in nine regions noted some
general permit clarity problems as well as some specific permit clarity problems
among permitting authorities. These problems included extensive use of IBR,
vague permit language, and complex permit format.
"Many EPA regional officials indicated that they were hesitant to describe permit elements as weaknesses,
focusing instead on areas that need improvement.
10
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Table 2.1: Examples of Permit Clarity Problems Identified by EPA Regional Officials
EPA .:.'::
Region
1
2
3
4
5
6
7
8
g
10
PefmfWns
authority
NA
General
General
District of
Columbia
Louisville-
Jefferson Co.,
Kentucky
Illinois
Indiana
Ohio
Texas
Iowa
Missouri
North Dakota
Utah
Arizona
California
Washington:
Industrial
Section
EPA regional officials' comments to OIG
None
- Permit clarity could be improved; however, it is difficult to develop
"user-friendly" documents because of the amount of information
required by Tide V.
- States fail to provide adequate justifications for streamlining.
- Use of unknown, unexplained acronyms.
- Use of IBR makes permits confusing.
- Some general permit language makes it unclear whether
requirements apply to a source; permit structure complicates review.
- Does not always clearly label combined Title V/construction
permits.
- Origin and authority of terms left out- will be addressed upon permit
renewal; some vague permit language.
- Extensive use of IBR can make permits difficult to follow; frequently
requires going back to the application for information.
- Sometimes fail to clearly cite SIP requirements.
- Permits need more detail in applicable requirements.
- Permit language can be vague.
- In some permitting authorities in Arizona and California, permit
format can be complex and difficult to follow.
- Permit format causes clarity issues.
Source: Comments provided by EPA ragfana/ air officials in their written and oral responses to OIG's
structured interview questions.
Nine out of the 10 environmental groups we interviewed cited problems with the
clarity of Title V permits. These problems included permits that are incomplete
or lack sufficient detail, extensive use of IBR, confusing permit format,6 and
issuing multiple Title V permits to a single source. Two environmental group
representatives told us they found permits in some States to be
"incomprehensible." One representative told us that the permit format in one
State was so complex that the permit information essentially had to be re-
organized and re-written in order for the group to review the permit. Several of
the environmental groups we contacted contend that the ability of the public to
exercise their right to enforce a permit may be jeopardized if the permit is written
in a way that cannot be understood by the public.
Including the format of general operating permits; these permits have a condensed application and
permitting process. Sources with similar operations, emissions units, and requirements can apply for general
operating permits in lieu of an individual permit. See page 13 for further discussion of general operating permits.
11
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The industry representatives we interviewed also identified problems with the
clarity of Title V permits. They stated that the Title V program is too complex
and that permits are written in such excess detail that it is impossible to read
them unless the reader has a very detailed knowledge of the individual source's
operations. One industry representative also cited problems with clarity that
arise from overlapping Federal and State rules and regulations. Representatives
noted that streamlining can minimize the overlap and make permits less
complex. However, they also stated that the process to streamline can be time-
consuming and burdensome for the source. They also expressed the belief that
too much detail exists on certain provisions, such as requirements for
insignificant emissions units (lEUs), which adds to permit complexity.
Results of State Permit Review
We reviewed a sample of permits in four States to address the following clarity
issues: using IBR, whether the permits correctly reflected underlying regulations,
using permit shields and streamlining, and overall clarity.7 We found that these
elements were incorporated into Title V permits to varying degrees, and that
overall, permit clarity varied widely in most of the States we visited.
Using Incorporation By Reference
Almost all of the permits we reviewed incorporated applicable CAA
requirements by reference to some degree. North Carolina, Ohio, and New York
generally followed references or citations to a requirement with a narrative
section paraphrasing the requirement. We found a few instances in each of these
States where the reference to a requirement (usually in 40 CFR) was too general
to determine which part specifically applied to the section. However, for the
most part, the use of IBR in the North Carolina, Ohio, and New York permits we
reviewed was reasonably discernable, provided the reader had access to the State
regulations and/or 40 CFR. In Texas, citations for all requirements specific to
emissions units at the source were listed in an applicable requirements summary
table with minimal or no narrative description8. For the 10 Texas permits we
reviewed, in order to determine what monitoring, testing, record keeping, and
reporting the requirement entailed, the reader had to review each citation in the
State regulations or 40 CFR. We found this to be a time-consuming process
because of the State's reliance on IBR for all emissions unit-specific
requirements. A reader or a reviewer is especially challenged when the citation
In most cases, we did not review requirements concerning each individual emissions unit in the Title V
permits. Rather, we selected three to four emissions units at a source and reviewed the applicable requirements and
corresponding monitoring provisions listed in the permit. In selecting units to review, we focused on capturing the
major emissions units at a source, as well as a variety of units.
The Texas permits we reviewed included a description of the emissions limitation for each emissions unit;
however, they did not do the same for monitoring, testing, record keeping, or reporting. These columns included
only a citation to a State or Federal regulation.
12
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is general and does not clearly reference a specific paragraph or subsection. In
those cases, a reader may have to review lengthy State or Federal regulations to
find the applicable paragraph.
Texas also extensively uses IBR in general operating permits. General operating
permits are intended to provide a condensed application and permitting process
for sites that are similar in terms of operations, emissions units, and applicable
requirements. Instead of receiving an individual permit specifically identifying
each emissions unit and its requirements, eligible sources fill out an application
and then receive a letter granting them operating status under the general
operating permit. General operating permits are not unique to Texas. However,
they were used more frequently there than in the other States we visited.
According to Texas officials, approximately 40 percent of Texas Title V permits
were issued through general operating permits as of May 2004. The general
operating permit we reviewed, which Texas officials stated was representative of
the State's other general operating permits, did not specifically identify the actual
emissions units at a given source.
To determine what requirements a general operating permit source is subject to,
the reader must request access to the permit application to identify the source
specific emissions units in the application, then locate the emissions units and
operations listed in the general operating permit applicable requirements
summary table, and locate the corresponding State or Federal regulation citation.
For example, Texas general operating permits for oil and gas sources consist of
76 to 108 pages of applicable requirements tables - all with extensive IBR.
Finally, the text of the State or Federal regulation must be located and the details
of the requirement identified.
In 2002, several environmental groups filed a lawsuit challenging, among other
things, Texas' use of IBR in incorporating minor New Source Review (NSR)
permits into Title V permits. On August 15, 2003, the 5th Circuit Court of
Appeals ruled against the petitioners on this issue and found that nothing in the
CAA prohibits the incorporation of applicable requirements by reference.9
Using IBR in permits thus does not violate any Title V requirement. However,
extensive use of IBR without narrative description, and particularly without a
citation to a specific subsection, can negatively affect the clarity of the permit,
especially for members of the public. Table 2.2 below shows the use of IBR in
the four States reviewed.
Public Citizen, 343 F.3d at 454. The IBR decision was part of a more extensive ruling on a case brought
by Public Citizen against EPA for approving the Title V program in Texas and for failing to issue notices of
deficiency on several issues. EPA conceded to the court that it had previously provided guidance stating that
requirements should first be restated on the face of the permit before IBR is used, however, EPA contended that such
guidance was not binding and the Court agreed.
13
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Table 2.2: Use of IBR in State Permits Reviewed
State
New
York
North
Carolina
Ohio
Texas
Total
Number of
permits
wtthJBK
10
9
10
10
39 (98%)
Number
reasonably
discemable
10
7
9
6
32 of 39
(82%)
fa Title* I/ normit in
OKJ comments related to IBR
1. Generally paraphrase requirements; however, in a
few cases it was necessary to reference 40 CFR.
2. Generally IBR was followed by paraphrasing;
however, not always for 40 CFR citations.
3. In two cases, cites to 40 CFR were not specific
enough to determine which section was
applicable.
4. Generally paraphrase requirements; however, in
most permits it was necessary to reference 40
CFR or State regulations for at least one
requirement.
5. One instance where a citation was not specific
enough to determine applicable section.
6. Texas permits relied extensively on IBR
Requirements can be reasonably discemable if
readers can access State regulations and 40
CFR; however, citations were often not specific
enough to identify the appicable section of the
regulation.
7. Difficult to discern which general operating permit
requirements apply toa source without a list of
emissions units at a specific site.
8. In general, extensive IBR complicates permit
reviews because the applicable requirements are
not clearly stated on the face of the permit.
review work in the above four States.
How Well Permits Reflected the Underlying Regulations
In North Carolina and New York, the permit text for the requirements we
reviewed matched that of the underlying State or Federal regulation. In Texas,
the permits had very little narrative, so only a limited amount of text was
available to compare with the regulations. For those we were able to cross-
check, we did not discover such discrepancies.
We were not able to answer this question for several Ohio permits, though,
because the permits did not include a citation to the underlying regulation-they
provided a narrative description only. If the underlying regulation is not
identified, it is difficult to determine whether the State is correctly incorporating
the requirement. In a letter to EPA Region 5 officials in January 2002, Ohio
committed to address this issue upon permit renewal and to incorporate the
origin of authority for each permit term and condition. In all States, permit
citations that were general, rather than specific, made it difficult to verify
whether or not the content of the permit matched the underlying regulation.
14
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Using Permit Shields and Streamlining
Of the 40 permits we reviewed, 7 included specific permit shield provisions
beyond the language in the general terms and conditionsIO--2 in North Carolina
and 5 in Texas. Based on our review of how well the SBs explained the shields,
the two shields in North Carolina, and four of those in Texas, did not appear to
be misapplied. One permit in Texas listed the rationale for the permit shield
through a general IBR. The citation referred to in the Texas State regulations did
not provide enough information to determine whether the shield was
appropriately applied."
Streamlining in Title V permits occurs when an emissions unit is subject to
overlapping regulations and the permitting authority condenses the multiple
requirements into one requirement in the permit, which should be the most
stringent. We asked the States we visited general questions about streamlining
and looked for evidence of streamlining in the permits. However, unless the
permit or its SB explicitly discussed streamlining, it would have been difficult
for us or the public to determine whether streamlining provisions applied. Ohio
was the only State we reviewed that identified streamlining in its SBs.12 The
State did not, however provide a side-by-side comparison of requirements to
justify which requirement was selected as the most stringent. Without clearly
identifying streamlining and discussing the requirements, it is difficult for the
public and other outside permit reviewers to determine whether the streamlining
process is being used correctly.
Overall Permit Clarity
Generally, we noted inconsistencies in the clarity of the permits we reviewed in
New York, Ohio, and Texas. To determine whether the permit provisions were
clear, we reviewed the permit requirements for specific emissions units and
attempted to identify what was expected of the source in terms of meeting
emissions limitations. Besides taking into account the clarity elements discussed
above, and the extent to which outside research was required to identify these
requirements, if any, we also considered how these elements affected the
monitoring, testing, and reporting requirements in permits. Most provisions and
requirements in the permits from these States were clearly incorporated;
however, some were not. Among the permits we reviewed, the specific factors
that we determined affected overall clarity included:
Permits typically contain permit shield language in the general terms and conditions. Some also
incorporate provisions shielding certain emissions units from specific requirements.
1 'in its response to our draft report, Texas explained that since the permit in question was issued, the
specific regulation cited had changed. The permit shield citation was not updated when the regulation changed,
therefore the permit text was no longer consistent with the specific regulatory citation.
Ohio began identifying whether streamlining existed in permits in their SBs in 2002.
15
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• Extensive use of IBR made permit provisions more difficult and time
consuming to review (Texas), which could deter members of the public
facing a limited comment period from reviewing permits.
• In New York, requirements for a specific emissions unit may be scattered
throughout a permit, some of which are more than 100 pages in length.
making it difficult to get a complete picture of a unit's requirements,11
• Using vague permit requirements, such as emissions testing is "upon
request," or "if required," made it unclear what conditions would trigger a
source to be tested unless additional information was provided (New York
and Ohio).
• In States that frequently incorporated AP-42 emissions factors to determine
compliance, or relied on surrogate monitoring, it was not always clear how
these alternate methods would satisfy the underlying requirements (Ohio and
North Carolina).14
As indicated above, problems involving a number of different permit elements
impacted the clarity of permits, potentially affecting the ability of the public to
clearly understand what is expected of a source. OAQPS addressed several
clarity issues, including when it is appropriate to reference requirements in a
permit and the proper use of streamlining, in guidance documents issued in 1995
and 1996 (White Papers Number 1 and 2). A series of "Title V Permit Writers'
Tips" developed by EPA Region 3 also addressed clarity elements, such as
streamlining and permit shields. As discussed on page 13, the 5th Circuit Court
of Appeals found that nothing in the CAA prohibits incorporation of applicable
requirements by reference. EPA regions have sometimes addressed other clarity
issues through permit reviews and responses to public petitions. For example, in
response to a public petition, Region 5 officials stated that they would work with
Ohio to clarify vague permit language.
Some Statements of Basis (SBs) Missing Key Elements
Generally, EPA officials believe SBs in many States have problems. Officials in
8 of 10 EPA regions told us that inadequate or missing SBs were a problem in
some of their State or local permitting authorities. Environmental groups also
told us that SB inadequacy problems and missing SBs were an issue in a number
of public petitions. Although our review of SBs in the States we visited indicated
that SBs have improved, we identified incomplete SBs in all of the States we
reviewed. Ohio questioned the need for detailed SBs since they asserted that
much of the same information was found in their permits. Although EPA's
Region 5 issued SB guidance to Ohio, OAQPS has not issued nationwide
"New York's permits are generated automatically by a computer program created to process Title V
permits. According to New York officials, changes to the computer generated permit system are difficult and would
require a significant outlay of funds to the contractor. The State spent an estimated $8-10 million to develop the
system in 1992.
14,
See page 18 for further discussion of monitoring requirements.
16
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guidance on SB content. Officials in six EPA regions identified the lack of EPA
guidance as a problem for SBs. We believe complete SBs not only provide a
legal and factual basis for permits, but also improve permit clarity and allow for
better public participation.
The regulatory basis for SBs is found in 40 CFR 70.7 (a)(5), which states that the
permitting authority must prepare a statement for each draft permit to provide the
legal and factual basis of the permit. The OAR has not issued any guidance on
what should be included in an adequate SB. EPA's position is that permitting
authorities could obtain information on the contents of acceptable SBs by
reviewing prior court case decisions and EPA's responses to public petitions.
(See Chapter 3 for a more complete discussion of this issue.) However, not all
concerned officials in EPA Regions may be aware of applicable court decisions
or public petitions. A memorandum from the Chief of EPA Region 5's Air
Programs Branch to the Chief of Ohio's Division of Air Pollution Control, dated
December 20, 2001, and an EPA Region 9 petition response in FY 2004, were
the most complete and recent EPA documents we located that provided specific
guidance on what information should be included in an adequate SB.15 The EPA
Region 5 memorandum referred to above stated that the following information
should be in the SB:
• discussion of the monitoring and operational requirements,
• discussion of the regulatory applicability determinations,
• explanations of any conditions from previously issued permits that are not
being transferred to the Title V permit,
• discussion of streamlining requirements, and
• other factual information including a listing of prior Title V permits issued to
the same applicant at the plant, attainment status, construction, and
permitting history of the plant and compliance history of the plant.
EPA Region 9 provided additional guidance on the contents of SBs in a recent
response to a public petition. According to a key OAQPS official, issued EPA
regional guidance and EPA responses to public petitions drafted by EPA regional
offices, and issued by the Administrator, should be considered guidance for SB
content. However, we believe a regulation explaining the content requirements
of an adequate SB should be issued because not all EPA regions may be aware of
guidance issued through petition responses or other EPA regional guidance. For
example, during the course of our review, we noted one instance in which one
EPA region was unaware that EPA's Region 9 had provided additional guidance
on SB content.
EPA regional officials and environmental groups identified problems with SBs.
EPA regional officials we interviewed identified 20 permitting authorities that
Additional EPA petition responses and court decisions have addressed the requirement that SBs be
included with permits.
17
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either did not prepare SBs or had inadequate SBs. For example, officials in
Region 1 identified three States that did not prepare SBs because these States
believed that their permits contained information on the legal and factual basis of
permits sufficient to meet Title V's requirements. Officials in two EPA regional
offices cited the lack of rationales for monitoring decisions in SBs as a recurring
problem. Officials from three environmental groups we contacted believed that
inadequate SBs were a problem. From these officials' perspectives, the main SB
problem was the excessive disparity in SB content from State to State.
Our review of SBs (or equivalent documents) in the four States we visited
indicated that each SB was missing at least one or more of the suggested key
elements identified above in the EPA Region 5 memorandum. The key
information in the SBs we reviewed was not consistently presented in each
permit in each of the four States. SBs or equivalent documents prepared by these
permitting authorities have evolved over time and the more recent SBs generally
included more of the key elements suggested in regional guidance. However,
none of the SBs contained all of the key elements suggested in the Region 5
memorandum mentioned above. For example, 2 of the 10 permits we reviewed
in New York did not have a corresponding SB because New York did not
prepare SBs for their early Title V permits. Texas originally prepared "Technical
Summaries", but later began using SBs that were more complete. These
improvements in SBs resulted from EPA NODs and commitment letters. (See
Chapter 3 for a more detailed discussion of NODs and commitment letters.)
However, further improvements in consistency could be made if nationwide
guidance existed on the key elements necessary in SBs. Our observations on
SBs, or equivalent documents, for the States we reviewed are discussed in
Appendix C.
Monitoring Provisions In Permits Varied, Adequacy Questioned
Problems exist in the adequacy of monitoring provisions in Title V permits in
many States. Officials at OAQPS, all 10 EPA regions, and a number of
environmental groups identified problems with monitoring provisions in permits.
Similar problems were identified in our review of a sample of Title V permits in
four States. Title V regulations (40 CFR Part 70.6) contain two provisions
requiring monitoring in permits. These provisions are intended to provide
sufficient information to enable emitting sources, permitting authorities, EPA,
and the public to determine whether or not facilities are meeting applicable
requirements. The first provision referred to above, the periodic monitoring
provision, requires, in the absence of other applicable requirements, "...periodic
monitoring sufficient to yield reliable data from the relevant time period that are
representative of the source's compliance with the permit..."16 The second
monitoring provision, sometimes referred to as the "sufficiency," or "umbrella"
monitoring provision, requires that each permit contain "monitoring, reporting
"40 CFR 70.fi(a)(3}(iKB)
18
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and record keeping requirements sufficient to assure compliance with the terms
of the permit."17 Some underlying air quality requirements in Federal
regulations or approved SIPs explicitly require facilities to perform a specific
type of monitoring; however, many do not. Prior to Title V, there was no Federal
requirement to add monitoring to permits if the underlying regulations applicable
to the source did not specify the type or frequency of monitoring. Both the
periodic and umbrella monitoring provisions have been subject to numerous
interpretations by EPA and the courts. We believe this has contributed to
inconsistencies in the adequacy of monitoring nationwide and has affected the
ability of stakeholders to determine source compliance with applicable
regulations.
Stakeholders Identified Problems With Monitoring Provisions
Officials at OAQPS identified overall problems with the adequacy of monitoring
requirements in Title V permits. One key OAQPS official told us that permits
are sometimes issued without monitoring provisions. For example, Texas
generally did not include periodic monitoring provisions in Title V permits until
2002. Another key OAQPS official noted that there is a substantial range in the
adequacy of provisions which State permitting authorities insert in permits to fill
monitoring gaps in the underlying requirements applicable to a source.18 OAQPS
officials stated that State permitting authorities vary significantly in the quality of
the monitoring provisions they include in permits, and that substantial Title V
monitoring problems exist in some cases. OAQPS officials also expressed
concern that oversight in some EPA regions does not focus enough on ensuring
the adequacy of monitoring provisions in permits. OECA officials told us that
inadequate monitoring provisions in permits can hamper enforcement efforts.
They stressed the importance of sufficient monitoring provisions in the effective
enforcement of Title V permit requirements, noting that monitoring is the key to
ensuring that sources comply with air quality rules and regulations.
Officials from all 10 EPA regions indicated that they provided permit review
comments on the adequacy of monitoring provisions in Title V permits in one or
more of their permitting authorities. Officials from several EPA regions stated
that comments they provided related to monitoring provisions were frequent, and
were among the most common problems observed in permits. Some officials
noted that many of the comments provided were made early in the Title V
program, and that improvements in monitoring provisions have been made over
time. Some EPA regional officials also noted that most review comments are
resolved in the draft phase of the permit, and few formal objections to proposed
permits are issued.
1740CFR70.6(c)(l)
While some Federal and State air quality regulations include specific monitoring requirements, others
have "gaps" in monitoring requirements and do not specify the type or frequency of monitoring for certain emissions,
or both.
19
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EPA regional officials also assessed the strengths and weaknesses of monitoring
elements in permits issued by permitting authorities in their respective regions.
Most EPA regional officials indicated that the majority of permitting authorities
include adequate monitoring provisions in their permits. However, as shown in
Table 2.3 below, EPA officials in nine EPA regions identified permitting
authorities in their area that have had problems with incorporating inadequate or
minimally acceptable monitoring provisions in permits, particularly periodic
monitoring provisions. Several regions noted that the subjective nature of air
pollution monitoring, together with the lack of EPA guidance on appropriate
monitoring, leads to inconsistencies in permit provisions and essentially requires
a case-by-case determination of appropriate monitoring.
20
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Table 2.3; Examples of Monitoring Problems In Title V Permits Identified By Regions
•:• B*Ai: •'
Region
1
2
3
4
5
6
7
8
9
10
Permitting :
authority ;
Maine
General
Maryland
Pennsylvania
Mississippi
Louisville-
Jefferson Co.,
Kentucky
Shelby, Tenn.
Indiana
Illinois
Minnesota
Ohio
Texas
Louisiana
Kansas
Iowa
Nebraska
(including
local
permitting
authorities)
Colorado
Montana
Utah
Wyoming
Arizona
Bay Area Air
Quality
Management
District
Idaho,
Oregon
Washington
•'_-}'.}-._ EP A Fteglonaf officials' commente to DIG \ : •'.•'::. :-:
- Inappropriately labeled monitoring as 'State-only1 enforceable in
some draft permits.
- Monitoring is progressing; work closely with States to determine
adequate monitohng; lack of guidance leads to inconsistencies.
- State has difficulty with streamlining; sometimes leaves out
requirements that are still applicable, which impacts monitoring.
- Monitoring in synthetic minors needs strengthening.
- Region provides training, working with State to improve permits.
- Some problems with monitoring provisions.
- Region is providing training to new staff.
- Lack of sufficient monitoring requirements In some permits;
more monitoring detail needed in SBs.
* Inadequate monitoring provisions; fail to specify frequency of testing
("upon request" is not sufficient).
- Inadequate periodic monitoring in some permits.
- Should indude more detail regarding monitoring decisions in SBs.
- Monitoring provisions generally adequate, but IBR can make them
unclear.
- Lack of sufficiency in opacity monitoring.
- Adequate, but require minimally acceptable level of testing and
monitoring.
- Require the barest minimum level of testing and monitoring.
- Adequate, but problems with PM and opacity monitoring.
- Periodic monitoring issues; CAM deficiencies.
- CAM deficiencies in renewal permits.
- Inadequate/missing periodic monitoring; CAM deficiencies.
- Periodic monitoring issues; CAM deficiencies.
- Sufficient monitoring is an issue, but improving recently due to EPA
comments and objections.
- Early problems with periodic monitoring were addressed, but some
issues remain.
- Need to improve monitoring.
Source: Comments provided by EPA regional officials in their written and oral responses to DIG'S structured
interview questions.
21
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Representatives from 8 of the 10 environmental groups we interviewed also
expressed concerns regarding the incorporation of monitoring provisions into
Title V permits. Several representatives stated that permits, in general,
frequently lack the appropriate monitoring requirements. Representatives also
expressed concern regarding the clarity of monitoring provisions from the
general public's perspective. They noted that when monitoring provisions are
included in permits, factors such as extensive IBR and listing several different
monitoring options in the permit, instead of specifying one monitoring
requirement, can limit permit clarity for the public.19 According to one group,
permitting authorities have particular trouble filling gaps in monitoring
provisions in permits when monitoring requirements are not expressly prescribed
by the SIP.
A number of environmental groups contributed to a June 2001 report on the Title
V programs in Texas, Ohio, and Georgia.20 The authors of this report contended
that none of these State programs required sufficient monitoring provisions in
permits, particularly with regard to opacity requirements. Additionally, a number
of public petitions filed by environmental groups against proposed permits and/or
State permitting programs cited inadequate monitoring provisions as a concern.
Some of these petition issues were granted by EPA; others were denied because
EPA did not find a basis for the specific complaint.21 For example, EPA issued a
NOD to Texas in response to public petition concerns that monitoring provisions
were not adequately incorporated into the State's general operating permits.
EPA disagreed with monitoring concerns raised in public petitions against the
New York and Ohio permitting programs, stating that while they would watch
for individual problems in permits, overall the programs included adequate
monitoring and met the minimum requirements of 40 CFR Part 70.22
EPA Guidance on Monitoring in Title V Permits
Title V's monitoring requirements have been subject to multiple interpretations.
OAR first issued guidance on periodic monitoring requirements (40 CFR section
70.6(a)(3)) in 1998. This guidance suggested that permitting authorities review
each applicable underlying requirement to determine if the monitoring included
in permits was sufficient to determine source compliance with the CAA, If
19
Environmental group representatives contended that some permits do not declare which type of
monitoring a facility must use, but rather provide several different options. We found one example of this practice in
an Ohio permit. The source was provided the option of either conducting continuous SO2 monitoring or coal
sampling to determine compliance.
Baron, David; et al., National Environmental Trust, "Title V Operating Programs in Texas, Ohio and
Georgia," June 11, 2001.
OAQPS and EPA regional officials stated that the majority of issues raised in public petitions are denied.
In its response to the draft report, EPA commented that it did not always disagree with monitoring issues
raised in New York petitions against individual permits.
22
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monitoring provisions were insufficient, then additional monitoring provisions
could be added.
The validity of this guidance was challenged in court and in the 2000
Appalachian Power case, the D.C. Circuit Court of Appeals set the EPA
guidance aside, ruling that the Agency had overextended its authority.23 Under
the Court's ruling, if the underlying State or Federal standard requires a source to
perform a specific type of monitoring or testing more than one time, this satisfies
the periodic monitoring language of Title V. Further, the ruling specifies that
more frequent monitoring can only be added if the underlying standard requires
no periodic testing, specifies no frequency, or requires only a one-time test, hi its
ruling, the court noted that Congress did not authorize EPA to require States, in
issuing Title V permits, to revise monitoring requirements in existing Federal
emissions standards. EPA has not issued any additional periodic monitoring
guidance since 1998.
The Court's 2000 ruling did not address the "sufficiency monitoring" provision
of Title V (40 CFR section 70.6(c)(l)). On September 17, 2002, EPA proposed
rule on sufficiency monitoring. The proposed rule stated that where applicable
State or Federal requirements already require periodic testing or monitoring, but
that monitoring is not sufficient to assure compliance, the permit must meet the
requirements for sufficiency monitoring. This proposed rule was also challenged
in court.24 As part of a subsequent legal settlement with industry plaintiffs, EPA
revised its sufficiency monitoring rule and released a final rule, now referred to
as "umbrella monitoring," on January 22, 2004. hi this final rule, EPA
determined that Title V does not establish a standard for requiring or authorizing
reviewing and enhancing existing monitoring provisions. States may only add
monitoring provisions in permits, or "gap-fill," where the underlying regulations
are silent on either the type or frequency of monitoring required, or where
monitoring is not periodic. A coalition of environmental and public health
groups petitioned the Court to review this final rule on March 18,2004. This
latest case is pending in the D.C. Circuit Court of Appeals.25
Officials from six EPA regions told us that the lack of EPA guidance on Title V
periodic monitoring requirements is a problem and indicated that such guidance
is needed. Officials in two regions noted that the Court ruling in the 2000
Appalachian Power case negatively affected the ability of EPA to provide
periodic monitoring guidance. Officials in another two regions stated that the
lack of EPA guidance on monitoring requirements increased the burden on the
regions to make case-by-case determinations of monitoring adequacy in permits.
Officials in another region told us that the lack of EPA periodic monitoring
"Appalachian Power Co.v Envtl. Protection Agency, 208 F.3d 1015, 1028 (D.C. Cir. 2000)
^Utility Air Regulatory Croup. Inc. v. Envtl. Protection Agency, 320 F.3d 272, 276 (D.C. Cir. 2002)
^Environmental Integrity Project v. Envtl. Protection Agency No. 04-1083 (D.C. Cir. Filed Mar. 19,
2004).
23
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guidance caused inconsistencies among States and delayed permit issuance.
OAQPS officials indicated that they have plans to issue a rule clarifying what
constitutes periodic monitoring. However, these officials were uncertain of the
time frame for rule issuance and noted that previous efforts to address
monitoring guidance needs have been subject to legal challenges and lengthy
delays.26
Some EPA regional officials also commented on the possible effect of the new
umbrella monitoring rule - that the new rule could limit the ability of State and
local permitting authorities and EPA to require adequate monitoring in Title V
permits. For example, prior to this rule, Region 4 officials worked extensively
with Florida's Title V program officials to improve monitoring provisions in
permits because they determined that certain requirements in the SIP did not
contain monitoring sufficient to assure compliance. Region 4 officials noted
that, at the time, EPA's interpretation was that States could supplement
monitoring requirements with additional periodic monitoring when the existing
requirements were found to be inadequate. As discussed above, EPA has a
different interpretation in the new umbrella monitoring rule. OAQPS officials
stated that they plan to release an advance notice of proposed rulemaking
(ANPR) calling for public comment on potential monitoring inadequacies in
SIPs and Federal regulations.
Monitoring Issues Identified In Reviewing State Permits
In reviewing State permits, we assessed the adequacy of the following elements
of monitoring provisions:
• inclusion of periodic monitoring;
• inclusion of compliance assurance monitoring (CAM);
• gap-filling underlying State and Federal regulations;
• use of surrogate monitoring;27 and
• the overall sufficiency of permit requirements to determine compliance.28
2fiAs part of the 2004 umbrella monitoring rule, EPA committed to three future rulemaking actions,
including (1) improving source monitoring for opacity and particulates by providing monitoring guidance input to
the upcoming implementation of the National Ambient Air Quality Standards (NAAQS) for fine particulate matter
(PM) 2.5; (2) identifying and considering improving possibly inadequate monitoring in Federal rules and SIPs by
issuing an advance notice of public rule-making (ANPR) calling for public comment; and (3) publishing a separate
proposed rule to address what constitutes "periodic monitoring" under section 70.6(a)(3)(i)(B) and 71.6(a){3)(i)(B).
27For the purposes of our review, we considered surrogate monitoring to be using means other than direct
emissions monitoring or testing to measure a source's compliance with an applicable State or Federal requirement.
See Table 2.5 for examples of surrogate monitoring we noted during State permit reviews.
2ROur assessment of the sufficiency of monitoring provisions was based essentially on the inclusion and
clarity of these key permit elements. We did not independently assess the appropriateness of the technical or
engineering aspects of each monitoring provision.
24
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While all of the permits we reviewed included monitoring on a periodic basis for
at least some applicable requirements, we found that, in general, the permits did
not consistently incorporate periodic monitoring for all requirements. The
majority of the permits gap-filled at least one requirement by adding the
frequency and/or type of monitoring where this was not specified in the
underlying regulation. The majority of the permits we reviewed also included
some type of surrogate monitoring for one or more requirements, the adequacy of
which varied. Overall, we found that many of the permits we reviewed contained
monitoring provisions sufficient for an outside observer to determine compliance
with the underlying requirements. However, more than half of these permits
contained both sufficient and insufficient monitoring requirements.
Provisions for Periodic Monitoring
All of the Title V permits we reviewed contained periodic monitoring provisions
for at least some permit requirements.29 Periodic monitoring was not, however,
consistently incorporated into each requirement we reviewed in each State. To
varying degrees, we found examples of a lack of periodic monitoring in permits
in all of the States we reviewed. In some cases, State officials explained that
periodic monitoring was not necessary because the type of material used by the
source reduced the incidence of pollutant emissions to below regulated levels. In
these cases, permits required the source to maintain records of the material make-
up, but not to directly monitor the output of emissions from the unit. For
example,
• North Carolina provided this type of rationale in permit statements of basis.
• Several Texas permits contained few periodic monitoring provisions because
the State did not start including them for all applicable requirements until
December 2002.
• In New York, monitoring for some pollutants from some emissions units was
required only once during the permit term, or upon request by the permitting
authority. New York statements of basis did not provide clear rationales for
these monitoring decisions and the permit format made it difficult to track all
of the requirements for an emissions unit.
• In Ohio, we found some cases where the frequency of monitoring was not
specified or where State officials asserted that monitoring was not necessary
because of the type of material used, however, explanations for these
decisions were not always contained in the statements of basis.
Compliance Assurance Monitoring
In 1997, EPA promulgated new regulations to implement CAM for major
stationary sources subject to Title V that rely on pollution control devices. CAM
For the purposes of our review, we defined periodic monitoring as monitoring of applicable regulated
emissions required mure than once during the terra of the permit. The frequency of monitoring in the permits
generally reflected either the underlying State or Federal regulation. In some cases, the monitoring frequency was
added as gap-filling where the underlying regulation was silent.
25
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requires owners or operators of sources to conduct monitoring that provides a
reasonable assurance of compliance with applicable requirements. Sources with
Title V applications completed before April 1998 were not required to
incorporate CAM into their permits until renewal of their Title V permit
application. All but one of the Title V permits we reviewed submitted their
initial applications by April 1998 and thus were not required to address CAM.30
CAM provisions are required to be added upon permit renewal. OAQPS
officials anticipate that, once implemented, the new requirements in CAM will
improve monitoring in a large number of Title V sources. Officials from several
Regions noted that CAM inclusion is one of their criteria elements for permit
review in order to ensure that these provisions are incorporated adequately.
Gap-filling Underlying State/Federal Regulations
We found examples of States adding monitoring provisions, or "gap-filling,"
where the underlying requirements were silent on either the type or frequency of
monitoring in 90 percent of the permits we reviewed. As shown in Table 2.4
below, in these permits, the type/method or frequency of monitoring for at least
one requirement we reviewed exceeded the provisions in either the underlying
State or Federal regulation. Under EPA's current interpretation of periodic
monitoring, as specified by the D.C. Circuit Court in the Appalachian Power
case, a permitting authority may add monitoring requirements to the Title V
permit if the underlying State or Federal standard requires no periodic testing,
specifies no frequency of testing, or requires only a one-time test. In the permits
we reviewed, specifying the frequency of monitoring when the underlying State
regulation was silent was the most common type of gap-filling used by States.
Table 2.4: Permits That Added Monitoring Requirements to Fill Gaps in Underlying
Regulations'
state
New York
North
Carolina
Ohio
Texas
Total
Number of permits that
added flap-filling
monitoring
8
9
9
10
36 (90%)
Number that added
monitoring type
3
5
7
2
17 Of 36 (47%)
Number that added
ntonftorfng
frequency
7
9
7
10
33 of 36 (92%)
Source: OIG analysis of State Title V permit information
* m°nit0rin9 See App"KUx B
One permit we reviewed in Texas submitted its Title V application in 1999. However, the facility's
emissions units were not reliant on emissions control devices and were therefore not subject to CAM.
26
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Surrogate Monitoring
In 29 of the 40 permits we reviewed (73 percent), sources were permitted to use
surrogate monitoring, rather than direct emissions monitoring or testing, to
measure compliance with a State or Federal requirement. Some of the most
frequently observed types of surrogate monitoring or surrogate methods to
determine compliance included fuel certificates to verify the sulfur content of the
fuel, AP-42 emissions factors, and using opacity monitoring to measure
paniculate matter. Surrogate monitoring was more commonly found in our
sample of North Carolina, New York, and Ohio permits than in Texas permits.
The emissions factors used as surrogate measures in the permits we reviewed
ranged in quality. Some were considered acceptable for use in estimating an
individual facility's emissions, while other factors were less reliable. For
example, AP-42 emissions factors were identified as surrogates for determining
compliance with applicable requirements in six Ohio permits we reviewed, and
in four North Carolina permits. An EPA Region 5 official noted that AP-42
factors are sometimes used to determine instances where periodic monitoring
provisions are not necessary-for example, when the emissions factors indicate
that the source's potential to emit is not big enough to ever exceed the applicable
emissions limit.
In a November 2001 letter to Ohio EPA,31 Region 5 officials commented that
Ohio's Title V permits often rely on AP-42 factors as the compliance method.
The Region stated that they do not believe that AP-42 factors are meant to be a
basis for compliance.32 However, they also stated that they believe Ohio EPA's
use of these factors through a ranking system is appropriate. Ohio EPA ranks
eight emissions factors from best to worst; AP-42 type factors are considered the
least reliable on the list. In a June 2004 EPA report identifying where the
emissions factors program needs to be improved, government, industry and
environmental group stakeholders commented that EPA guidance is needed as to
when it is appropriate to base or enforce permit and enforcement limits with
emissions factors.33 See Table 2.5 below for types of surrogate monitoring
identified by State.
The name of the air pollution control program in Ohio is the Ohio Environmental Protection Agency.
32The EPA AP-42 manual slates that the Agency does not recommend the use of AP-42 factors as source-
specific permit limits and/or as emission regulation compliance determinations.
"Summary of Emissions Factors Improvement Project Fact Finding Survey," prepared by EC/R
Incorporated of Chapel Hill, NC forOAQPS, June 2004.
27
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Table 2.5: Surrogate Monitoring Or Compliance Determination In Permits
State
New
York
North
Carolina
Ohio
Texas
Total
Number of permits
that include
surrogate*
10
8
9
2
29 Of 40 (73%)
Type of surrogate monitoring or compliance determination
- Certification of SO2 content of fuel
- Opacity testing to measure PM
- Temp/pressure gauges for VOCs
- Certification of SO2 content of fuel
- AP-42 emissions factors (4)
- Record weights of raw materials
- Fuel testing to determine 302 content
- AP-42 emissions factors (6)
- Measuring volume to estimate VOCs
- Source specific non-AP-42 emissions factor
- Computer software program (Tanks 4.0)
- Measure H2S to estimate SO2 emissions
- Requirement to use a specific fuel
- Source test performed on similar sources
33 of 36 (92%)
Source. OIG analysis of State Title Vpermit information. Note: See Appendix B for details concerning our
permit review results in the above 4 States.
Many Monitoring and Reporting Requirements Sufficient To
Determine Compliance
We considered whether the monitoring and reporting provisions included in the
permits we examined appeared to be sufficient for Government officials and
members of the general public to determine source compliance with permit
requirements. Taking into account the monitoring elements and permit clarity
factors discussed previously, we found that many requirements in the permits we
reviewed contained sufficient provisions to enable an outside party - with ample
time and effort - to determine the source's compliance with the applicable
regulation. However, in over half of the permits, we noted that while provisions
for one emissions unit/pollutant were sufficient, provisions for another
requirement in the same permit appeared to lack clarity or key information. (See
Table 2.6 below). For example, a permit may contain comprehensive monitoring
provisions for visible emissions, yet not specify the monitoring frequency for
another pollutant. In some cases, a clearer permit format or a discussion of the
monitoring decision in the SB could address potential insufficiencies.
Overall, areas that we found potentially affected requirement sufficiencies
included:
• The monitoring frequency was not specified or no periodic monitoring
included.
• The IBR to general rules did not clearly specify monitoring and reporting
requirements.
• General operating permits did not identify emissions units at a source.
• Monitoring and reporting were "upon request by the agency" with no specific
conditions.
28
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• Reliance was on less reliable AP-42 emissions factors instead of actual
emissions.
Table 2.6: Overall Sufficiency Of Monitoring Requirements In Title V Permits
State
New York
North Carolina
Ohio
Texas
Total
Number of permits where all
sufficient to deferrable
compliance
5
6
3
3
17 Of 40 (43%)
Number of permits where some
requirements were potenttaHy not
sufficient to determine
compBanee
5
4
7
7
23 of 40 (58%)
Source: OIG analysis of State Title Vpermit information. Note: See Appendix B for details concerning our
permit review results in the above 4 States.
As indicated above, the overall sufficiency of monitoring provisions in Title V
permits is impacted by a number of different factors. Our evidence suggests that,
given the high rate of gap-filling in permits, there may be a significant lack of
sufficient monitoring requirements in State and Federal regulations. State and
local permitting authorities incorporated periodic monitoring in permits on a
case-by-case basis, with inconsistent results. Region officials frequently
commented on monitoring problems in their review of permits, however
problems remain. Region efforts to review monitoring requirements in permits
were impacted by the lack of national policy on key issues. OAR efforts to
establish national guidance on monitoring met with limited success and were
subject to court challenges. The January 2004 rule on umbrella monitoring may
limit the ability of State and local permitting authorities to improve underlying
monitoring provisions. However, it contains OAR commitments to issue
periodic monitoring guidance and to address monitoring insufficiencies in State
and Federal regulations.
Improvements Needed in Annual Compliance Certification Content
Title V requires that responsible officials at permitted sources sign ACCs. The
ACC is an important compliance tool that provides a statement of the source's
compliance status with respect to its permit terms over a 1-year reporting period.
Congress included the ACC provisions in Title V to ensure that the responsible
official certify that they have knowledge of the plants' CAA obligations and
whether the plant met these obligations. Non-compliance with ACC provisions
can result in penalties including fines and imprisonment.
The ACCs submitted by the Title V permit holders in the four States we visited
differed substantially as to completeness from State to State and did not
consistently address compliance for the same terms and conditions in the
29
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permits. OAR has not issued guidance that explains the required terms and
conditions that should be certified for compliance in an ACC. As a result, Title
V sources have not been required to report their compliance status consistently
throughout the country.
The requirements for ACCs are found in 40 CFR Part 70.6(c)(5)(i). Part 70
requires that ACCs be signed by a responsible official and submitted annually to
both EPA and the permitting authority. In general, the ACCs should include
each of the requirements listed in Table 2.7 below.
Table 2.7: Key Requirements Of Annual Compliance Certifications Under Title V
Kay Annual Compliance Certification Provisions and Requirements
Must identify and list each term or condition of the permit that is the basis of the compliance certification.
Must identify the method(s) or other means used by the owner or operator to determine compliance
status with each term and condition during the certification period.
Must identify the status of facility compliance with the terms and conditions of the permit for the period
covered by the certification, including whether compliance during the period was continuous or
intermittent.
The certification shall identify each deviation and take it into account in the compliance certification. The
certifcation shall also identify, as possible exceptions to compliance, any periods during which
compliance is required and in which an excursion orexceedance occurred as defined under part 64 of 40
C.F.R.
Any other facts as the permitting authority may require to determine the compliance status of the source.
Many of the key stakeholders we interviewed cited problems with ACCs. EPA
officials from four of the 10 regional offices cited the lack of EPA guidance for
ACCs as an underlying cause for the problem. Also, four environmental group
representatives believed that problems were associated with ACCs. The lack of
completeness of ACCs was cited as the main problem because ACCs lacked
adequate compliance reporting requirements. An industry representative we
interviewed believed that ACCs required sources to certify compliance on too
many parameters. As noted in Chapter 3, a key OAQPS official told us that
OAR no longer issues nationwide guidance. Instead, guidance has been issued
by some EPA regions, and there have been associated rulings in court cases and
EPA responses to public petitions. A key OAQPS official told us that future
OAQPS guidance will require a rulemaking.
Certifications Received By the States Were Inconsistent
We reviewed, when possible, the most recent ACCs submitted for the permits
in our samples in four States to determine whether the ACCs submitted by the
sources met the requirements in 40 CFR Part 70.6. In some instances, a year
had not passed since the permit had been issued and an ACC was, therefore, not
due. In all, we reviewed 30 ACCs; 10 in New York, 7 in North Carolina, 7 in
Ohio and 6 in Texas. In one instance, an ACC which was due had not been
submitted to Texas for activities in the past year. As a result of this source's
failure to submit an ACC, a State of Texas official said that an enforcement
action will be taken against the source.
30
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In general, we found problems with (1) consistency in ACC reporting
requirements for the permits we examined in the four States we visited and (2)
completeness of ACCs submitted by permitted sources in Texas and Ohio. We
believe the problems were at least, in part, attributable to the lack of adequate
EPA guidance on ACC content. The differences we found related to whether the
facilities certified compliance in the ACC with each permit term and condition
or whether the facilities simply certified compliance with the entire permit
except for any identified deviations. In the October 22, 1997, preamble to Part
70 revisions - Compliance Certification Requirements (62 FR 54937), EPA
allowed the certification to be a short, concise compliance statement that does
not restate detailed information that had already been provided. However, two
States we visited required their sources to certify compliance in ACCs with each
permit term and condition. Since these two States have successfully required
comprehensive ACCs from their sources for some time, we believe a similar
nationwide requirement would not be unduly burdensome. The results of our
review of ACCs in the four States are provided in Appendix C.
Guidance and Rules on Compliance Certifications Not Issued
The OAR has not issued sufficient guidance or rules on ACC content. First,
EPA has not issued drafted guidance that identifies what terms and conditions
should be certified in ACCs. Second, EPA issued a rule in June 2003 to address
a court decision related to defining terms in ACCs and inadvertently left out
wording related to credible evidence. EPA has not issued the rule to correct the
error, but it is OIG's understanding that a revised rule is going to be issued.
OAQPS officials we talked with recognized that the ACCs received by the
States were inconsistent with respect to the content of the ACCs. However,
EPA has not issued any guidance that would make ACC requirements uniform
among the States. (See Chapter 3 for additional information on unissued
guidance.)
On October 29, 1999, the United States Circuit Court of Appeals in Natural
Resources Defense Council considered the Agency's ACC requirements for its
final operating permits program and concluded that these requirements did not
address whether the permittee had been in "continuous or intermittent"
compliance.34 In June 2003, EPA issued a final rule that removed the text that
requires responsible officials to identify whether the compliance determination
methods provide continuous or intermittent data. EPA replaced the text with a
requirement to state whether compliance was continuous or intermittent during
the period covered by the ACC.
EPA amended 40 CFR 70.6 (c)(5)(iii)(B) and 40 CFR 70.6 (c)(5) (iii)(C) to
state that continuous or intermittent compliance referred to the compliance
status during the year, and not the nature of the data obtained by the monitoring
^Natural Resources Defense Council. Inc.v Envtl. Protection Agency, 194 F.3d 130 (D.C. Cir. 1999).
31
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method. However, a mistake was apparently made in this rule by excluding a
key clause on credible evidence. The following sentence related to credible
evidence in ACCs was left out of the current regulations in 40 CFR
"If necessary, the owner or operator also shall identify any other material
information that must be included in the certification to comply with section
113 (c) (2) of the Act, which prohibits knowingly making a false certification
or omitting material information. "
According to a key OAQPS official, the omission was inadvertent and occurred
due to an administrative error. The OAQPS official stated that this provision is
strongly disliked by industry. OAQPS has attempted to place this language back
into Part 70. This revision had not been completed at the time we finished our
field work.
Practical Enforceability Concerns With Some Permits
The enforcement of Title V permit provisions is affected by the manner in
which the requirements are written into the permit. Monitoring, record keeping,
and reporting provisions in permits should be written in sufficient detail to limit
interpretation or ambiguity in meaning. Provisions that are imprecise or unclear
can cause problems with enforcing permits. OECA and EPA regional officials
identified potential practical enforceability problems in permits. Environmental
groups provided similar comments in a number of public petitions.
A key OECA official noted that practical enforceability is a significant part of
Title V permit enforcement.35 According to the official, a permit is not
practically enforceable if it does not contain adequate provisions for monitoring,
record keeping, and reporting. An absence of these elements or the presence of
vague permit language (for example, requirements to test emissions "as
required" or "per manufacturer's specifications") makes a permit virtually
unenforceable, or not practically enforceable. The official also noted that vague
permit language or vague phrases are problematic because they force the reader
to have to go to another source to identify applicable requirements. In addition
to problems with vague language, the official noted that periodic monitoring
requirements that may be technically legal under the Appalachian Power
decision (see page 23), may present enforcement problems as a practical matter.
For example, monitoring twice during the 5-year term of the permit meets the
current interpretation of periodic monitoring; however, it may not be frequent
enough to verify compliance.
"To be enforceable as a practical matter, a permit condition should provide a clear explanation of how the
limit or requirement applies to a facility and make it possible to determine whether the facility is complying with the
condition.
32
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The officials we interviewed from EPA regional air offices stated that most
permitting authorities issued permits that were generally adequate in terms of
practical enforceability. However, officials in 8 out of the 10 regions told us
that problems in some permits potentially affect practical enforceability. They
identified specific enforceability problems in a number of permitting authorities
(see Table 2.8 below). Examples of practical enforceability problems cited by
EPA regional officials included incorrect labeling of requirements as State-only
enforceable, vague or unenforceable permit language, improper use of permit
shields, and permit language preventing the use of credible evidence.36 Officials
in one region noted that certain provisions in underlying regulations may have
practical enforceability problems that the region cannot address because the
current Title V program limits their ability to add additional requirements to
permits. (See discussion of the Appalachian Power decision and EPA's
umbrella monitoring rule on page 23)
36Title V permit conditions cannot limit the types of data or information (e.g., credible evidence) that may
be used to prove a violation of any applicable requirement.
33
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Table 2.8: Examples of Practical Enforceability Problems Identified by EPA Regions*
EPA
Region
1
2
3
4
5
6
7
8
9
10
Pwmfttine
authority
Maine
General
NA
Louisville-
Jefferson
Co..
Kentucky &
Shelby
Co., Tenn.
Indiana
Minnesota
Illinois
Ohio
Louisiana
Texas
NA
Montana
Utah
Arizona
San Joaquin
Valley
South Coast
Washington:
Industrial
Section
EPA regional officials' comment* to OtG
- Inappropriately labeled monitoring requirements as State-only
enforceable.
- Significant number of conditions in each Title V permit, not all of which
are adequate with respect to practical enforceability.
- Generally adequate in al permitting authorities.
- Practical enforceability in permits needs improvement.
- Needed anti-credible evidence "buster" language in permits."
- Need to use placeholders when a compliance schedule may be
pending due to enforcement actions.
- Included inappropriate permit shields for Federal regulations.
- Vague permit language ("testing if required").
- Some problems with practical enforceability.
- Some enforceability problems identified with monitoring, record
keeping and reporting in applicable requirements.
- Adequate in all permitting authorities.
- Allowed State air Director's discretion on testing.
- Vague or unenforceable permit language.
- Blanket permit shield language problematic; allowed State air
Director's discretion on some issues.
- Not enough detail provided for enforceability of permit limits.
- IBR led to some problems with enforceability.
- Permit format causes clarity and enfoiceabifty problems.
Source: Comments were provided by EPA Region officials in their written and oral responses to OtG
structured interview questions.
' Region officials noted that some problems were identified earlier in the program and either have been
resolved or are in the process ofbiing resolved.
* Anti-ojBdibte evidence buster language states ttiat nothing in the permit shall be construed to limit the use
of credible evidence, fn its response to our draft report, EPA noted that this issue has been resolved and
Indiana now includes an anti-credible evidence buster language condition in each permit.
Environmental groups cited potential problems with practical entbrceability in
permits in a number of public petitions. The issues they expressed concern
rlcH-
about included:
having permits that contain provisions not enforceable as a practical manner;
improperly limiting using credible evidence,
improperly using permit shields, and
having permit conditions that are too vague to be enforceable.
34
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EPA responded to several of these comments by soliciting commitment letters
from the States, and in four cases, by addressing the issues in NODs.37 For
example, EPA agreed with public petition concerns that permits in Ohio
contained conditions that were too vague to be enforceable as a practical matter
and stated they would work with Ohio to improve enforceability of the permit
language. In most other cases, EPA did not agree with the assertions in the
petitions and denied those claims.38 For example, EPA did not find a basis for
practical enforceability concerns raised in a New York public petition and
denied those issues in the petition.
Results of State Permit Review
As shown in Table 2.9 below, we identified potential practical enforceability
problems in 22 of the 40 permits we reviewed in New York, North Carolina,
Ohio, and Texas.
Table 2.9: Practical Enforceability Concerns In Permits Reviewed
State
New
York
North
Carolina
Ohio
Texas
Total
Number
of
pofri)$t&
revffiwdo
10
10
10
10
40
Numb* of
parmiti wttn
practical
enforceabHity
concern*
6
2
7
7
22 (55%)
Description of Concsrn{*>
1 . Some permits contained references to
"manufacturer's specifications" without Isting
what, at a minimum, this should entail.
2. Monitoring and/or reporting 'upon request" by
the Agency.
3. IBR to 40 CFR in general not specific enough to
reasonably determine applicable section.
4. Testing frequency not specified.
5. Some permits contained references to
"manufacturer's specifications" without fsting
what, at a minimum, this should entail.
6. One case where citation not specific enough to
determine applcable section of regulations.
7. General operating permit did not list the actual
emissions units at the specific source on the face
of the permit.
8. General IBR to lengthy regulations made it
difficult to identify the section applicable to the
source.
9. Monitoring frequency not specified.
Source: OIG analysis of State Title Vpermit information. Note: See Appendix B for details concerning our
permit review restMs in the above 4 States.
We considered provisions with vague language, such as reporting "promptly"
and inspecting and maintaining equipment "as suggested by manufacturer's
37
See Chapter 3 for additional information regarding NODs and commitment letters.
As noted in footnote 21, OAQPS and EPA regional officials told us that the majority of issues raised in
public petitions are denied.
35
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specifications" - where not followed up with more specific detail - to
potentially limit the ability of enforcement staff to clearly hold sources
accountable for compliance with permit conditions. We also noted possible
problems with practical enforceability where requirements were incorporated by
reference in an overly general manner, making it difficult to determine what
requirements the source was actually subject to. For example, under reporting
requirements, a permit may reference an entire 40 CFR subpart. Without a
specific citation to the relevant paragraphs, the reviewer must examine the entire
subpart to locate the requirement; in some cases this means examining more
than 80 pages of requirements. In some cases, the lack of a specified
monitoring frequency could make it difficult for officials to enforce such
monitoring provisions and hold a source to specific emissions limitations.
Conclusions
Our analysis of Title V permits indicated that the clarity of permits, the
adequacy of monitoring provisions incorporated into permits, and the adequacy
of the content of SBs and ACCs varied significantly among State permitting
authorities.
• Permit clarity was negative ly affected by a number of different factors,
including extensive use of IBR; failure to fully cite underlying regulations;
lack of specificity of source requirements for testing, monitoring, and
reporting, and complex permit format.
Evidence suggested that insufficient monitoring provisions in Title V
permits is a problem in a number of different State and local permitting
authorities. Monitoring is a critical aspect of Title V; however, State and
Federal regulations often do not provide for sufficient monitoring, and EPA
lacks guidance on periodic monitoring.
• The adequacy of SBs and ACCs content varied significantly in the State
permits we reviewed; EPA regional officials indicated that SB and ACC
content adequacy varied nationwide as well.
EPA has not clearly established what the minimum level of acceptable SB or
ACC content should be. Without such nationwide guidance, significant
inconsistencies have resulted. Evidence indicates that problems with vague
permit language and insufficient monitoring provisions have posed potential
practical enforceability problems for Federal and State enforcement officials.
Our review of 40 State-issued Title V permits found that 90 percent of these
permits included some type of gap-filling where the underlying regulations
contained either no monitoring, or insufficient monitoring provisions. These
results suggest that a substantial lack of sufficient monitoring requirements may
exist in State and Federal regulations. EPA's decision to re-write its draft
sufficiency monitoring rule, and issue instead the more narrow January 2004
36
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final umbrella monitoring rule, could limit the ability of State and local
permitting authorities and EPA regions to use Title V permits to correct
monitoring deficiencies. EPA did, however, recognize the need to address
monitoring in underlying regulations in the umbrella rule. In this rule, EPA
committed to taking several actions to improving monitoring, including issuing
periodic monitoring guidance and issuing an advanced notice of public
rulemaking, calling for public comment on monitoring inadequacies in SIPs and
Federal regulations.
Collectively, the problems with permit clarity and the adequacy of permit
content undermine a basic tenet of the 1990 CAA Amendments - that of
transparency, openness, and full and effective public involvement Problems
with permit clarity make it more difficult for Title V stakeholders to identify
what requirements sources are subject to. Without sufficient monitoring
provisions, it is difficult to measure whether or not a source is complying with
applicable requirements on a regular basis. When permitting authorities include
only minimal information in SBs, they miss an opportunity to make permits that
are essentially complicated engineering documents more understandable to
stakeholders by including explanations for permit decisions. ACCs that contain
insufficient information reduce the source's level of accountability to EPA,
State and Federal regulators, and to the public.
Recommendations
We recommend that the Assistant Administrator for Air and Radiation:
2-1. Develop and issue guidance or rulemaking on annual compliance
certification content which requires responsible officials to certify compliance
with all applicable terms and conditions of the permit, as appropriate.
2-2. Issue the draft rule regarding intermittent versus continuous monitoring as
it relates to annual compliance certifications and including credible evidence.
2-3. Develop nationwide guidance or rulemaking, as appropriate, on the
contents of statements of basis (SB) which includes discussions of monitoring,
operational requirements, regulatory applicability determinations, explanations
of any conditions from previously issued permits that are not being transferred
to the Title V permit, discussions of streamlining requirements, and other
factual information, where advisable, including a listing of prior Title V permits
issued to the same applicant at the plant, attainment status, and construction,
permitting, and compliance history of the plant.
2-4. Through its periodic discussions with EPA regions and State and local
permitting authorities, emphasize improvements in Title V permit clarity by
minimizing using incorporation by reference (BR), clearly citing applicable
underlying regulations, emphasizing conciseness in permit format, and using
statements of basis to identify and explain permit decisions related to
streamlining.
37
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2-5. Expeditiously follow through on its commitment in the January 2004
umbrella monitoring rule to develop periodic monitoring guidance.
We recommend that the Assistant Administrator for Air and Radiation and the
Assistant Administrator for Enforcement and Compliance Assurance jointly:
2-6. Develop and implement a training program and use their oversight
authority to help EPA regional offices and State and local permitting authorities
in preventing practical enforceability problems in Title V permits.
We recommend that the Assistant Administrator for Air and Radiation and the
EPA Regional Administrators jointly:
2-7. Establish and implement a plan to review the adequacy of monitoring
provisions in SIPs.
We recommend that the EPA Regional Administrators:
2-8. Ensure that State and local permitting authorities consistently apply
periodic monitoring provisions to all applicable permit requirements, and ensure
that permitting authorities use AP-42 emissions factors in permits only after
other more reliable methods for determining compliance have been considered.
Agency Comments and OIG Evaluation
EPA made several comments on the material presented in Chapter 2, and we
made revisions to the Chapter where appropriate. The Agency did not fully
agree with our findings that national guidance could provide further consistency
and completeness in ACCs and SBs. Specifically, the Agency disagreed with
recommendations 2-1 and 2-3 regarding these issues. However, we continue to
believe that national guidance on ACCs and SBs would better ensure
consistency among the States and regions. We found that States may be
unwilling to follow (or be unaware of) guidance that is not national in scope,
therefore diminishing EPA's claim of the adequacy of "guidance" issued in the
form of public petition responses. Further, in response to EPA's disagreement
with our draft recommendation to issue nationwide guidance to address
problems with practical enforceability in Title V permits, we changed our
recommendation to address potential practical enforceability weaknesses in
permits through training and more effective oversight. The Agency's
consolidated response and our evaluation of that response are in Appendix F.
38
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Chapter 3
EPA's Oversight and Guidance Have improved
State Title V Programs, But Gaps Remain
Our review of OAR and EPA regional office efforts to provide Title V program
oversight and guidance to State and local permitting authorities found the
following:
• While most EPA regional offices met OAR program goals for permit reviews,
they have generally not issued timely reports in evaluating permitting
authorities' Title V programs.
• EPA generally does not respond to Title V public petitions in a timely manner.
• While the majority of issues identified in EPA's NODs and State and local
commitment letters have been resolved, important issues remain unresolved in
Texas, Hawaii, and Ohio.
• Many EPA regional offices and other key stakeholders wanted additional
guidance from OAR regarding a number of key Title V elements. However,
OAQPS has had limited success in recent attempts to issue Title V guidance.
Regional Reviews of Title V Permits Generally Met OAR Goals
Expectations for regional oversight of Title V permits are documented in the
annual memorandums of agreement (MOAs) between OAR and the EPA regional
offices. In FYs 2001 and 2002, MOAs between OAR and the EPA regional offices
indicated that
• five EPA regions committed to reviewing 10 percent or more of Title V permits
drafted by permitting authorities in their respective regions,
• two EPA regions agreed to annually review at least 5 percent of permits,
• two EPA regions agreed to annually review a set number of permits (25 and 50,
respectively), and
• one EPA region noted that because permit review was not identified as a high
priority in OAR guidance, the region would conduct "a few spot checks" of
permits and generally limit review activities to responding to citizen petitions.
Most EPA regional offices met OAR program goals for conducting permit reviews
as outlined in the MOA's for FYs 2001 and 2002.
According to OAQPS officials, beginning in FY 2003, the Agency modified the
MOA process such that the agreements primarily addressed the Assistant
Administrator (AA) for Air and Radiation's priorities. The EPA regional offices
needed to certify only that they would work to meet general annual performance
measures, rather than providing a specific, point-by-point analysis of each
provision. As a result, specific commitments to review individual permits were
largely removed from the MOAs as OAR emphasis shifted to overall evaluations
39
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of permitting authority Title V programs.39 The program evaluations were
developed, in part, in response to recommendations in a March 2002 EPA OIG
report.40
Based on data provided by EPA regional officials, regional permit review rates in
FY 2002, and continuing into FY 2003, generally met, and in most cases exceeded,
10 percent. As shown in Table 3.1, regional permit review rates for 9 regions
ranged from 9 percent to 90 percent. One EPA region reviewed only one permit
during this time.
Table 3.1: Number and Percent of Title V Permits Reviewed by EPA Regions - FY02-03*
Region
1
2
3
4
5
6
7
8
9
10
FY02 MOA
permit review
commitment
At least 10%
At least 10%
50
5 - 10%
At least 10%
At least 10%
25
10%
Less than 5%
Citizen petitions
only
nroz-03 total
proposed
permits
157
275
253
486
1035
858
244
298
458
181
Number reviewed
by mgtoft FY02-03
110
110
130
80
148
78
35
268
97
1
Percent
Mviewetfby
region FV0243
70%
40%
51%
17%
14%
9%
14%
90%
21%
0.5%
Source: MOAs between OAR and EPA regions. Permit review data provided by EPA region officials in their
written and oral responses to OlG's structured interview questions
' EPA regional permit review data was collected for the combined FY02-03 period; most EPA regional offices did
not brea? review data down by individual year.
Regions generally provided informal comments to permitting authorities on the
permits they reviewed; most reviews did not result in EPA issuing formal
objections to permits.4' As shown in Chart 3.1, since the Title V program began,
two EPA regions have each issued objections to at least 50 permits based on their
reviews or on public comments filed against a permit. Four EPA regions issued
objections to 3 or fewer permits; and four EPA regions have never formally
objected to a Title V permit.
39The FY2003 MOA for one region (Region 6) retained a permit review statement - the region committed to
reviewing five percent of permits.
40EPA and State Progress in Issuing Title VPermits, Report No. 2002-P-00008, March 29, 2002.
4140 CFR 70.8(c) states that the Administrator will object to the issuance of any proposed permit that EPA
determines is not in compliance with Title V.
40
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Chart 3.1: Formal Objections to Title V Permits by EPA Regions
R«gio
80 -,
8 50
-* JO
* 2
JS
i 10 ,
n Objection* to Title V Permits FY 1996-2003
' ;Vr'«C; {>;;>;
•-;\^>^Stl^?:*f|
rV'^^V!^^:
'4^i:^^%^>^
TX , rv^c'r*r^^''-;
1
|jgj
1
S*l
8
,^'0^'^' '''' > ••' ^^ ^ "" J ""N^'^JVI^
i"l tTitiifilAiliitliMMiniiliiuHMt II Ili'ftllt'lfittlVll'ti
',-.?* -.s^r -"^ ^ "•'''* ' ' ft""^-^ ^y^x
v.'svi *''"*" ''^ *'*.-''*".*:'. ^
rfS^L,c,^fX?"-^--^--*^
v^¥;t" ,' ^ ^ , ''«^ >". *-*•'-?
^
s
^
n
§
"/^ %tvi
l^'mrfj
; »•;. ^;J
S^,t*
'!' * '^
1234 5 6 T 8 9 10
Regions
Officials from all 10 EPA regions, including those that objected to permits, stated
that they typically prefer to avoid issuing formal objections to permits. Officials
from most regions told us that they work to resolve issues early in the permitting
process. Officials from two EPA regions stated that they have threatened to issue
permit objections to State and local permitting authorities on several occasions, but
instead were able to resolve the issues to the regions' satisfaction.
In FY2003, OAR shifted its focus from encouraging EPA regional offices to
review individual permits to performing Title V program evaluations. According
to OAQPS officials, EPA regional offices conducted Title V program evaluations,
including on-site reviews, of 31 permitting authorities between October 2002 and
December 2004. Most EPA regional offices indicated that they plan to complete
all Title V program evaluations by the end of FY 2006. One EPA regional office,
citing limited resources, stated that they would not have all of the evaluations
completed until 2008. As shown in Appendix E, of the 31 program evaluations
conducted, only 14 have resulted in final reports issued.42 The remaining 17
reports are still in process.
According to OAQPS guidance on conducting and completing these evaluations,
final reports on the reviews should have been issued not later than 90 days after
completing each on-site visit. A key OAQPS official told us that some of the
regions with outstanding reports have not met this 90-day completion target. The
delays in issuing the reports prevents EPA and other government officials, as well
as the general public, from becoming aware of problems with Title V programs as
they are identified. OAQPS officials explained that they have requested that the
regions complete and submit their assessments of the permitting authorities, but
42,
As of December 2004. This number includes a program evaluation completed in Louisiana prior to the
development of the OAQPS program evaluation questionnaire.
41
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that some regions appear to be waiting until the problems are corrected before
completing their final reports. OAQPS officials also told us that they do not have
direct authority to require regions to complete the delayed reports. In responding
to our draft report, EPA indicated that regions take a significant amount of time to
prepare program evaluation reports and that the regions also provide time for State
and local permitting authorities to comment on the draft reports.
EPA Responsiveness to Public Petitions Needs to Improve
EPA review of Title V permits can also occur as a result of public petitions.
According to section 505(b)(2) of the CAA, if EPA does not object to a permit, any
person who submitted comments during the relevant public comment period may
petition EPA to reconsider its decision. Public petitions must be filed within 60
days after the end of EPA's 45-day review period. If the petition is filed within
these guidelines, EPA must grant or deny the petition within 60 days.
Our review found that EPA does respond to public petitions concerning Title V
permits, but generally does not do so in a timely fashion. According to an online
EPA database (updated in October 2004), EPA received 162 public petitions
regarding Title V programs or permits between July 1996 and July 2004. Of those
petitions received, EPA has responded to over two thirds (70 percent), averaging
approximately 12 months to respond to each petition. As shown in Table 3.2, the
range of response times to these petitions varies from 2 months up to nearly 4
years. EPA still has not responded to some petitions, dating back as far as May
1998. In recent years, EPA's petition response rate has been relatively low. Since
January 2002, EPA has only responded to 35 percent of the petitions filed.
42
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Table 3.2. Summary of EPA Responses to Title V Petitions -1996 to 2004
Year tiled
2004
2003
2002
2001
2000
1999
199B
1997
1996
Total
Number
of
petitions
7
13
28
27
54
7
7
1
5
14?
Number of petition* filed
that EPA eventually
responded to
2
1
14
23
48
6
4
1
5
104
(70 % of total petitions filed)
Average time
from filing date
to EPA
response
(month*)
4
9
11
14
13
19
16
4
7
12
Range of
EPA
response
time*
(months)
2-6
9
7-25
5-31
3-37
4-47
5-29
4
2-10
2-47
Source of data EPA Region 7 Air Program, Title V Petition Database;
http://www.epa.gov/resion07/programs/arta/airAi1te5/petitiondb/petitiondb2004.ritm
' ID 2003 EPAjismissed 13 public petitions. Those petitions are not included in Table 32. as they do not J
reflect typical EPA responses to public petitions. In each oflhe petitions dismissed by EPA, the Agency had
already initiated the process to reopen the permits for the facilities that the petitions were based on.
Because of this, EPA dismissed these petitions as "unripe."
Although the Act required EPA to respond to at least 53 public petitions listed in
the EPA database we reviewed within 60 days of the filed date, EPA did not
respond to any within the required 60 days. EPA did respond to 45 of the 53
petitions; however, the average response time was almost 17 months. EPA had not
responded to the other eight petitions at the time our fieldwork ended in October
2004. These eight petitions have been awaiting EPA response for an average of
over 26 months. For 92 petitions in the database we could not find sufficient
information to determine whether EPA was required to respond within the 60 day
time frame. We found only four instances where EPA deemed petitions filed as
untimely, therefore releasing EPA from a duty to respond within 60 days. EPA
region and OAQPS officials attributed the delays to a shortage in resources, and to
the time required to coordinate efforts between multiple offices within EPA that is
necessary to formulate responses to the petitions. A key official at OECA
indicated that responding to public petitions is not a high priority within EPA.
EPA's delay in responding to public petitions has prompted some environmental
and citizen groups to file lawsuits against the Agency, occasionally forcing the
Agency to act through a court ruling. The Georgia Chapter of the Sierra Club filed
one such suit in September 2001 and as recently reported, a "coalition of
environmental groups" sued EPA for their failure to respond to petitions against
Title V permits for several Illinois based coal-fired power plants.43
43,
Sierra Club v. Whitman, l:01-cv-01991 (D.C.Cir. Filed Sept. 19, 2001); and Suit Filed Against EPA Over
Permits for Illinois Coal-Fired Power Plants, Daily Environment Rep. (BNA) No 179, at A-7 (Sept. 16, 2004),
discussing, American Lung Ass'n of Metropolitan Chicago v. Leavitt, No.04 C 5966 (N.D. 111. filed Sept. 13, 2004)
43
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EPA's timely response to applicable public petitions is also important due to the
Agency's lack of adequate Title V guidance over the past several years.44 Agency
officials told us that informal guidance provided through public petition responses
has served as a means of providing EPA Title V guidance. EPA's responses to
public petitions should not be a substitute for formally issued EPA guidance on
Title V. Nonetheless, since these responses have served as informal Title V
guidance, EPA's untimely responses may have exacerbated the problems that have
arisen from the lack of formally issued guidance.
Most NOD and Commitment Letter Issues Have Been Resolved
The OAR and EPA regional offices exercise oversight by issuing NODs for
program deficiencies. State and local permitting authorities had resolved the
majority of the issues identified in NODs issued by EPA. Most of the
commitments made by the four State agencies we visited were adequately
addressed by the States. In general, in these four States, we noted improvements in
their Title V programs as a result of NOD and commitment letter resolutions.
However, NOD deficiencies remain in Texas, Hawaii, and Wisconsin and
commitment letter issues remain in Ohio and Texas. The deadline for resolving
the NOD issue in Texas has passed. According to the NOD provisions, sanctions
against the State were a possibility if the issues in the NOD were not resolved
within 18 months. However, EPA had not yet published a rule on the Title V
applicability of sanctions for unresolved program deficiencies. This "order of
sanctions" rulemaking is a first step before EPA can take sanctions against a State.
EPA drafted a proposed rule on the applicability of sanctions related to these
unresolved NODs, but the proposed rule has not been issued for comment in the
FR.
After EPA wrote the Part 70 rules governing implementing Title V, most States
received interim program approval of their Title V programs from EPA for two
years. This EPA interim approval allowed them to begin issuing permits. On May
22, 2000, EPA extended the interim approvals for 86 State and local operating
permits programs a second time. Because the CAA states that interim approvals
can only be for two years and cannot be extended, the Sierra Club and New York
Public Interest Research Group Inc. (NYPIRG) sued EPA over the extended
interim approvals in the Court of Appeals for the District of Columbia. The
lawsuit resulted in a settlement in which EPA agreed to address issues in State
rules raised by the Sierra Club and NYPIRG in considering whether to approve or
disapprove their Title V programs. EPA agreed to issue a FR notice requesting
citizens' comments concerning deficiencies in the States' Title V programs.45
According to key officials in OAQPS, after the above-mentioned FR notice
requesting public comment was issued in December 2000, EPA received 34 letters
See discussion of the Agency's Title V guidance later in this chapter.
4SSee, Sierra Cluh., 322 F.3d at 718(D.C.Cir. 2003); Public Citizen, 343 F.3d at 449, 454.
44
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from citizens that contained 350 issues affecting 20 State Title V programs. In
response, EPA divided these issues into regulatory and implementation categories
and issued NODs to permitting authorities that it deemed as having regulatory
issues, and obtained commitment letters from States and local permitting
authorities addressing the implementation issues. The regulatory issues required
changes in the permitting authorities' regulations, while the implementation issues
required changes in implementing the permit authorities' programs to resolve these
issues. Ultimately, EPA issued NODs to 8 States, 34 districts in California, and
the District of Columbia, directing them to correct these regulatory issues. At least
23 permitting authorities addressed multiple implementation issues in their
commitment letters to EPA. As of October 2004, all State and local permitting
programs have received final approval from EPA, although some NOD and
commitment letter issues were still outstanding.
Notices of Deficiency
According to provisions in the CAA, State and local permitting authorities that
receive EPA NODs have 18 months to address their Title V program deficiencies.
EPA must publish resolutions of these deficiencies in the FR. EPA issued NODs
to 8 States, 34 local permitting authorities in California, and the District of
Columbia, directing them to correct program deficiencies. NOD issues have been
resolved with all States except for Texas, Hawaii, and Wisconsin. Appendix E
provides details on the status of all NODs issued by EPA as of October 2004.
According to EPA, Texas has resolved all issues in its NOD except for final EPA
approval of a SIP revision related to excess emissions resulting from facility
malfunctions. This SIP revision was included in a Texas regulation amendment on
January 2, 2004. EPA proposed approval of Texas' SIP revision on March 2,
2004, but has not yet granted final approval of the SIP revision. Consequently,
because EPA has not officially approved the SIP revision, EPA has not issued a FR
notice granting its final approval of Texas' action to correct its NOD. In the
opinion of a key EPA Region 6 official, the SIP revision has not received final
approval because EPA officials in OECA and OGC believe the Texas regulation
allows too many excess emissions. Consequently, the statutory deadline for
resolving NOD issues within 18 months had not been met since the NOD was
issued in January 2002. A permitting authority may face sanctions if the deficiency
is not resolved within 18 months. According to OAQPS officials, sanctions have
not been proposed for Texas because EPA guidance on implementing sanctions
has not been proposed. OAQPS officials stated that the unresolved NOD issue is
SIP related and that Texas was required only to propose a SIP revision within the
deadline in the NOD. OAQPS officials believe the deficiency was resolved since
Texas has amended their regulations. However, the Texas regulation amendment
will expire on June 30, 2005.
EPA issued an NOD to Hawaii in April 2002 because its SIP rules did not
adequately address lEUs. According to an OAQPS official, Hawaii had revised its
SIP rule related to this issue effective November 14,2003. However, EPA has not
issued a FR notice to propose approval of Hawaii's actions to resolve the NOD
45
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issue. Officials in OAQPS and EPA Region 9 told us that the issue was resolved
and that the FR notice would be issued shortly. According to a Region 9 official,
the draft FR notice had not been issued because he had not been in the office
during the period in question. The Region 9 official indicated that the Agency
planned to issue the draft FR notice in December 2004.
EPA issued an NOD to Wisconsin on March 4, 2004. The issues cited against
Wisconsin's Title V program in this NOD included (1) not collecting sufficient
Title V fees, (2) improperly using Title V funds, (3) untimely issuing Title V
permits, and (4) other issues, related to the supersession of terms and conditions
from prior permits to Title V permits, issuing permits that did not contain all
applicable requirements (such as EUs), and including terms in their permits that
were not federally enforceable and lacked origin of authority. Wisconsin's NOD
deadline for correcting their program deficiencies is September 2005.
Commitment Letters
As discussed above, State and local permitting authorities sent letters to EPA
committing to certain actions that they would take to resolve Title V program
implementation issues identified by EPA. If the issues addressed in the
commitment letters were not addressed in a timely manner, EPA could then issue
NODs against permitting authorities. We reviewed actions taken by New York,
Ohio, and Texas to determine the extent to which their commitments to EPA to
resolve Title V implementation deficiencies were met. Except for the issues
related to ACCs in Texas and the SB issues addressed in Chapter 2 of this report,
the commitments appeared to be adequately resolved or the States were generally
taking appropriate actions to implement the changes. In its commitment letter,
Ohio committed to issuing SB guidance and we noted that limited guidance had
been placed on the their SB form. However, Ohio SBs still do not contain key
elements such as facility descriptions that include summaries of the operating
processes; therefore, we believe Ohio SBs need further improvement. Ohio also
committed to continue to work with EPA to improve the SBs. However, Ohio has
not incorporated several key elements in its SBs recommended by Region 5 in its
2001 Memorandum46 reasoning that "There is no national guidance, policy, or
preamble documentation in either the Clean Air Act or proposed and final versions
of Part 70 supporting the SB elements listed in the EPA [Region 5] memorandum."
Texas reported in its commitment letter that the State had modified its ACCs to
meet EPA Region 6's concerns. As explained in Chapter 2, we identified
deficiencies in Ohio's SBs and Texas' ACCs which we believe still have not been
adequately resolved.
For State and local permitting authorities with commitment letters which we did
not visit, we did not verify whether the applicable commitments were completed.
For example, one commitment by the State of Washington required the State to
improve monitoring requirements in its permits. Although EPA Region 10
See page 17 of our report for a discussion of the Region 5 2001 memorandum to Ohio.
46
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officials indicated that they believed improvements in the State's permit
monitoring provisions were made, a key EPA Region 10 official could not verify
the extent of these improvements with certainty because the Region had not yet
evaluated Washington's Title V program. OAQPS could not verify whether the
commitments were adequately addressed by the permitting authorities because
OAQPS relied on the EPA regional offices to ensure that all the commitments
were met and did not track resolution of the commitments. We were told by a key
OAQPS official that OAQPS' early efforts to track resolution of commitment letter
issues received little cooperation from EPA regional offices.
EPA has not issued a rule to address instances when permitting authorities have
continuing unresolved deficiencies in their Title V programs. As part of the
Agency's corrective action plan in response to our March 2002 OIG report,47 EPA
drafted a proposed rule to establish the order in which sanctions should apply for
untimely resolution of NOD issues that are required under the mandatory sanctions
provisions of Title V. Concerned that the Agency was not following through on its
action plan to address this recommendation from the 2002 report, the OIG issued a
memorandum to OAQPS in November 2003 and subsequently met with the
Agency to discuss their progress. However, at the time we completed our field
work in October 2004, this order of sanctions draft rule had not been proposed.
State Title V Programs Improved as a Result ofNODs
and Commitment Letters
Resolving the issues raised in EPA NODs and commitment letters from State and
local authorities have resulted in improving Title V permitting authority programs.
As stated in Chapter 2, the States we visited have taken steps to significantly
improve permit-related documents, due in part, to this resolution process. Though
additional steps need to be taken, Texas has substantially improved its SBs. Texas
also adopted a new section in its regulations requiring that the legal and factual
basis of its permits be set forth in its SBs. New York began preparing Permit
Review Reports for its permits. In addition, the States we visited have also
improved their permits through this resolution process. For example, several
States, including New York and Ohio, changed their regulations to improve their
definition of prompt reporting of deviations due to excess emissions; also, both
States subsequently included corresponding provisions in their permit terms and
conditions. Ohio has been improving its permits by including provisions stating
the origin of authority for each permit term and condition.
See footnote 40.
47
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Stakeholders Identified Needs for Title V Guidance48
Officials from most EPA regional offices, and other Title V stakeholders, wanted
additional EPA guidance regarding key Title V permit elements including:
monitoring, SB content and ACC content. Chart 3.2 below summarizes the views
of EPA regional stakeholders we contacted on the adequacy of EPA's Title V
guidance.
Chart 3.2: Regional View on Adequacy of Title V guidance
Region Officials' View of Adequacy of EPA Title V
Guidance
10%
• Mixed
EUoadaqtia
80%
Source: EPA regional responses to OIG structured interviews
EPA regional officials discussed the adequacy of EPA guidance in terms of the
range of Title V program issues addressed and the actual content.49 Officials from
five EPA regions indicated that the Title V guidance that EPA has issued is
beneficial, however they also noted problems with timeliness and/or the lack of
guidance in certain key areas. EPA regional officials listed areas where they
believe Title V guidance is still needed. Officials from six EPA regions stated that
guidance was needed on periodic monitoring, and would have been especially
useful earlier in the Title V implementation process. However, officials from two
EPA regions also pointed out that the Appalachian Power case decided in 2000
had a substantial negative impact on the ability of EPA to address monitoring
issues.
48The director of OAQPS typically signs official EPA Title V guidance. Guidance reflects EPA's policy
position on a given issue; however, it is not legally binding. Guidance differs from rules, which must go through the
formal rulemaking process in the Federal Register, since rules are subject to public notice and comment and must be
adhered to once promulgated.
49 r
EPA regional officials provided us with responses from their perspectives, as well as related impressions
received from their respective State and local permitting authorities.
48
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Officials from six EPA regions stated that EPA guidance on the content of SBs
would be beneficial; officials from four EPA regions expressed interest in guidance
on the content requirements of ACCs. Officials in one EPA region noted that
while they appreciated the Agency's hesitance to "micro-manage" requirements,
the lack of content direction for ACCs and SBs meant that no minimum floor for
such content was set. Officials in another region indicated that this has resulted in
significant inconsistencies between States in what is included in ACCs and SBs.
They expressed interest in EPA guidance on content requirements for ACCs and
SBs. According to OAQPS officials, while OAR declined to act on issuing ACC
guidance, enforcement officials in OECA were interested in issuing guidance.
However, to their knowledge, and that of a key OECA official we interviewed,
efforts to draft ACC content guidance in OECA did not progress. Another OECA
official told us that inadequate EPA guidance has hampered the effectiveness of
the Title V program.
Industry representatives we interviewed indicated that they would like to see more
consistency in Title V permits and more focus on national cohesion from EPA.
These representatives commented on the difficulties that policy variations between
States and EPA regional offices pose for businesses. They also noted what they
perceive as a lack of effort on the part of EPA to push for national consistency.
EPA Guidance Efforts Limited In Recent Years
OAR is responsible for developing national Title V regulations and guidance and
for providing technical assistance on Title V program implementation. OAR
guidance has been minimal since the DC Circuit Court of Appeals overturned
EPA's periodic monitoring guidance in its 2000 ruling on the Appalachian Power
case. A final rule on umbrella monitoring was promulgated in January 2004;
however, three draft guidance documents and one draft rule have been awaiting
approval at the OAQPS Division and/or AA for Air and Radiation level since
2002.50 These draft documents are related to processing program revisions, permit
renewal application forms, and ACCs. The draft rule addresses the order of
sanctions that can be applied to permitting authorities if they fail to correct EPA-
identified Title V program deficiencies. Table 3.3 below shows the status of
OAR's issuance of draft rules and guidance since 2002.
An additional rule related to ACCs was approved, however OAR is working to correct a subs tan tiative
error in wording before promulgating. For more discussion of monitoring guidance/rules see page 2 1 of this report.
49
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Table 3.3; Status of OAQPS Draft Rules and Guidance Since 2002
Draft Document
Final rule on umbrella monitoring
Proposed rule on order of sanctions
Final rule on 40 CFR Part 70
amendments to ACC requirements
Guidance on processing program
revisions
Guidance on permit renewal
application forms
Guidance on ACCs
Date Submitted
Sept. 4. 2002
2002
June, 2003
May 17. 2002
March 26, 2002
August 28, 2002
Status
Promulgated Jan. 22, 2004
Cleared OAQPS Division
office; with AA for review
Approved by AA; however
OAR staff is working to
correct an error in wording
Awaiting OAQPS Division
office and AA review
Awaiting OAQPS Division
office and AA review
Awaiting OAQPS Division
office and AA review
Source: OAQPS officials, information provided as of October 2004.
In the absence of formal guidance, EPA's Title V "policy" has, in recent years,
been conveyed through letters to permitting authorities and responses to citizen
petitions. This has resulted in two "guidance" databases: one official, and one
unofficial. Official signed guidance and policy memoranda are found on EPA's
Technology Transfer Network (TTN), while letters and other communications that
may contain case-specific decisions are available in a database maintained by EPA
Region 7. The Region 7 database includes letters from EPA regions and
incorporates most, but not all, of the documents on the TTN list. According to
OAQPS officials, the TTN database is the official source for Title V guidance;
however, stakeholders are also referred to the Region 7 database because of the
additional information it contains.
To identify all EPA written policy positions on a given Title V issue, one needs to
review both the TTN and the EPA Region 7 databases for relevant information.
OAQPS staff provided OIG with a copy of a document they prepared summarizing
the Agency's position on a number of key Title V issues. This document identifies
references where EPA positions and supporting information can be found. For
example, the Agency's position on the content of SBs is extracted from responses
to numerous citizen petitions, rather than one guidance document. As of
September 2004, this document, or similar summary index, was not available on
EPA's public Title V website.
OAQPS officials pointed out that even when guidance has been issued, OAR does
not have the ability to enforce this guidance. Guidance may provide a structure
and framework for EPA regional offices and State and local permitting authorities;
however, it is not legally binding. OAQPS officials stressed that they to do not
have the authority to force permitting authorities to follow EPA guidance. Thus,
even if EPA issued additional guidance, OAQPS officials expressed concern that
EPA regional offices and permitting authorities would continue to carry out Title V
inconsistently.
50
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Challenges to Issuing Title V Guidance
OAR faces several obstacles to issuing Title V guidance besides that posed by the
legal impact of the 2000 Appalachian Power ruling. OAQPS, EPA regional office,
and State officials noted that reaching a level of consensus among all of the various
Title V stakeholders can be challenging. For example, (1) North Carolina and New
York officials noted examples of OAR and EPA regional offices disagreeing with
each other on the correct course of action regarding permit questions; (2) New
York officials also pointed out disagreements between the EPA regional office and
OECA regarding the State's efforts to change certain permit provisions from a
reporting to a notice requirement; and (3) environmental and industry groups have
both sued the Agency because they disagreed with Title V guidance and rules. In
addition, we were told that issuing guidance is subject to various political pressures
surrounding the Agency. Further, OAR does not have the authority to enforce
guidance that is successfully issued. Nonetheless, our work suggests that this lack
of guidance has contributed to program deficiencies and implementation
inconsistencies. Such guidance shortcomings make it more difficult for industry to
develop Title V permit applications and for enforcement officials to determine
compliance, potentially leading to inconsistent environmental protection.
Conclusions
Various problems and potential problems with specific elements of Title V permits
were identified by officials in OAQPS, officials in all 10 EPA regional air offices,
representatives from environmental and industry groups, and in our review of a
sample of Title V permits. These problems, combined with the inclusion of CAM
in permit renewals as well as the on-going incorporation of MACT requirements
into permits, point to a pressing need for greater EPA regional office review of
individual permits and action to correct permit deficiencies, as appropriate. Some
potential areas of deficiencies, such as periodic monitoring and SB and ACC
content, also illustrate a need for more EPA guidance on Title V, While EPA
regional offices and permitting authorities are not legally required to adhere to
EPA guidance, such guidance does provide the framework for improving adequacy
and consistency, and reduces the need for individual EPA regions to develop their
own policies on key Title V issues. EPA guidance would also provide EPA
regional offices with more support for Title V permit review and enforcement
efforts. Unless resolved, Title V program inconsistencies will likely continue to
hamper industry and State and local agencies' efforts to meet Title V program
goals as permits are renewed for another 5 years.
Recommendations
We recommend that the Assistant Administrator for Air and Radiation:
3-1. Promulgate the draft order of sanctions rule which provides notice to State
and local agencies, as well as the public, regarding the actions that will be taken
51
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when Notices of Deficiency are not timely resolved by State and local Title V
permitting authorities.
3-2. Provide a document guide on the EPA public website which would assist the
public in identifying and locating published EPA statements on key Title V
program issues.
3-3. In conjunction with EPA Regional Administrators, jointly develop a strategy
to ensure that EPA regional oversight and review of Title V permit adequacy
continues beyond the scheduled program evaluations. EPA regional review of
permits should include an analysis of clarity-related issues and appropriate
inclusion of CAM and MACT provisions in any permit renewals.
3-4. In conjunction with EPA Regional Administrators, jointly coordinate and
streamline the review and response process for Title V public petitions to meet the
response requirements specified in the CAA.
Agency Comments and OIG Evaluation
The Agency largely agreed with our findings, conclusions, and recommendations
in Chapter 3 of the report. We made revisions to Chapter 3 where appropriate.
EPA sought to clarify some information, specifically regarding program
evaluations conducted by the regions, and public petition responses. EPA stated
that the regions work closely with permitting authorities in conducting air program
evaluations and also serve as a mediator between permitting authorities and
petitioners during the public petition process. While there may be reasonable
justifications for the more lengthy delays in EPA's issuance of written program
evaluations and public petition responses, we remain concerned about the
timeliness of the Agency's actions on these matters. EPA, as a whole, should
streamline their issuance and response process with regard to both program
evaluation reports and public petition responses. The Agency disagreed with parts
of our recommendation to issue Title V program guidance and also our
recommendation to provide a document guide to assist the public in identifying
EPA statements on key Title V issues. We agree that it may not be necessary to
issue all guidance now in draft, particularly guidance on permit renewal application
forms and processing program revisions. However, we believe that guidance on
ACC content is still needed to provide consistency among States and permitting
authorities. We also believe that a brief guide summarizing EPA's position on key
Title V issues would be beneficial to both permit writers and the general public.
Such a guide will be important to the public as Title V facilities seek permit
renewals. The Agency's consolidated response and our evaluation of that response
are in Appendix F.
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Chapter 4
Despite Some Problems, Title V Has Generally Improved
Implementation of the Clean Air Act
Available evidence suggests that, in general, establishing Title V has improved
implementing the CAA, and that the Title V program has been successful in
partially meeting most of its congressionally-envisioned goals. Interviews with
key officials from EPA's 10 regional offices, the four States we visited,
stakeholders from environmental groups, as well as the results of five EPA
evaluations51 of State Title V programs, suggest that- despite implementation
problems - Title V has improved the implementation of the CAA. Stakeholders
from large companies with many Title V facilities, and industry representatives
viewed Title V as a costly and burdensome program that had not achieved its
intended goals. Although actual emissions reductions have not been tracked by
EPA and insufficient evidence is available to determine whether Title V has
resulted in cleaner air nationwide, most Title V stakeholders we contacted said that
significant benefits have been achieved as a result of implementing the Title V
permitting program. For example, while not an explicit goal of Title V, a number
of stakeholders said that implementation of key Title V provisions, such as
requiring facility owners/operators to annually certify compliance with applicable
clean air requirements, has had the indirect benefit of reducing facility emissions.
Our comparison of State permits issued prior to Title V with federally-enforceable
Title V permits showed that, in most cases, not only were requirements from pre-
Title V permits incorporated into the Title V permits, but many new and significant
requirements were incorporated into these permits.52 However, EPA has not
conducted an in-depth study of Title V benefits, nor have data been maintained by
EPA that would allow an empirical analysis of these benefits. Also, due to the data
limitations and the inability to isolate the impact of Title V on enforcement as
opposed to other Agency enforcement initiatives, we were unable to determine
whether CAA enforcement and compliance was improved as a result of Title V's
implementation, although anecdotal evidence suggests that many facilities had
placed a greater emphasis on compliance as a result of Title V.
Six State Title V program evaluation reports were provided to us by the end of our fieldwork. However,
only five of the reports addressed benefits resulting from Title V. See page 41 for additional information on program
evaluations.
In this comparison, we assessed the extent that permits included compliance reporting requirements,
enforceable terms, public participation provisions, and monitoring, testing, and recordkeeping requirements.
53
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Expected Benefits of Title V
During consideration of the 1990 CAA Amendments, U. S. Senate and House
Committee reports dated October 26,1990, and October 27,1990, and the May 3,
1990, Clean Air Facts" identified benefits that Congress expected to be realized
from the Title V program. Table 4.1 shows the nine expected benefits from Title
V, as enumerated in the Congressional record.
Table 4.1: Nine Primary Benefits Expected From Implementing Title V
Expected Benefit
Improve States' air pollution programs due to better emissions inventories.
Provide resources through Title V fees.
Provide a vehicle for implementing the air toxics and acid rain programs.
Improve enforcement.
Achieve faster compliance.
Require compliance certifications from facility operators.
Include all the applicable regulatory requirements in one document.
Provide regulatory certainty for sources.
Improve public participation.
To analyze the impact of Title V relative to these Congressional goals, we
categorized the nine benefits into results associated with (I) improving States' air
pollution programs, (2) improving enforcement and achieving faster compliance,
(3) consolidating all the applicable requirements listed in one document and
providing regulatory certainty, and, (4) improving public participation. Although
not an explicit goal of Title V cited in the Congressional record, we also sought to
determine whether emissions reductions or cleaner air resulted from implementing
the Title V program. This was a subsequent goal added by the CAA Advisory
Committee, which was established to report on the state of Title V implementation.
Most Stakeholders Cited Anecdotal Benefits of Title V
In general, benefits cited by stakeholders varied according to their different
perspectives, with environmental groups, EPA headquarters and regional officials,
and State permitting authorities citing multiple benefits from Title V. Industry
representatives we contacted viewed Title V as a costly program that has not
provided many benefits in its present configuration. Due to the lack of available
evidence, we were unable to determine whether CAA enforcement and compliance
"Clean Air Facts is a Congressional record document that provides background information on legislation.
54
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was improved as a result of Title V's implementation, although anecdotal evidence
existed that many facilities had placed a greater emphasis on compliance.
Also, the benefits of placing all applicable CAA requirements in one document and
providing regulatory certainty to facility operators were not always recognized by
stakeholders due, largely, to permit clarity issues (see Chapter 2 of this report).
However, representatives from environmental groups indicated that Title V has
significantly improved public participation. The results of interviewing key
stakeholders and reviewing State Title V program evaluation reports are discussed
in greater detail below.
The following charts summarize the responses received from EPA regional
officials and the benefits identified in EPA's evaluation reports on State Title V
programs.
Chart 4.1: Title V Benefits Cited by EPA Regional Officials
EPA Regions
10
9
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55
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Chart 4.2: Benefits Cited in EPA's Evaluation Reports of State Title V Programs
State Evaluation Reports
Benefits Cited
Improved Air Pollution Control Programs
Three anticipated Title V benefits cited in the Congressional record were related to
improved air pollution programs operated by permitting authorities, as follows:
improved emissions inventories were expected to contribute to improved air
pollution control strategies for meeting CAA standards.
• the collection of Title V fees were expected to provide a source of revenue to
permitting authorities sufficient to support their efforts to issue permits, and
• Title V could be a vehicle for States to take over administration, subject to
Federal oversight, of significant parts of the air toxics and acid rain programs.
For example, MACT standards developed under the air toxics programs were to
be included in Title V programs.
Improved Emissions Inventories
Permitting authorities identified improved emissions inventories as one of the most
significant benefits that they received from the Title V program. State officials
indicated that Title V permits have provided a more comprehensive inventory of
controlled pollutant emissions. Officials from two of the four States we visited and
four of the five State Title V evaluation reports identified improved emissions
inventories as a benefit of Title V. Also, officials from 5 of the 10 EPA regions
cited improved emissions inventories as a Title V benefit Further, State officials
reported that as a result of Title V, they identified non-permitted sources and were
better able to quantify their emissions units.
56
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Mixed Views of Fees
State officials identified establishing a Title V fee program as a benefit in four of
the five State Title V program evaluation reports. For example, an EPA evaluation
report on one State Title V program reported that fees collected through the State's
Title V program provided a stable funding source and more resources for equipment
and onsite travel. Another State also reported that Title V fees was a benefit of the
Title V program, noting that
The increase in revenue as a result of Title V permit fees has allowed DNREC
to significantly increase its permitting and enforcement staff levels, as well as,
provided funds for other related expenses. Increased staff has allowed for
more frequent inspections, greater timeliness in permitting, and greater ability
to provide more compliance assistance.
Officials in 4 of the 10 EPA regions cited establishing a Title V fee program as a
benefit. However, none of the State officials in the four States we visited identified
the Title V fee program as a benefit to them. According to a key OAQPS official,
"loose" guidance from EPA has impacted the fee provisions of Title V. Title V fee
collections were supposed to fully cover the costs of each State's permitting
program, including compliance assurance, monitoring, reporting, and record-
keeping. Further, since the fees were based on amount of pollution emitted in a
year, the fees provided an incentive to facilities to reduce their emissions.
There have been instances reported where the amount of fees collected by
permitting authorities have not been adequate to sustain the corresponding Title V
programs. For example, Wisconsin's NOD issued by EPA in March 2004 stated
that Wisconsin, " ... failed to demonstrate that its title V program of Part 70 sources
requires owners or operators ... to pay fees that are sufficient to cover the costs of
the State's title V program ..." Similarly, in our prior Title V report on the EPA's
and States' progress on issuing Title V permits, we noted that States sometimes
chose to charge less than the recommended rate per ton of pollutant emitted. For
example, although Congress set a presumptive minimum fee of $25 per ton in 1990
when the Act was passed, in our 2002 report we noted that, for the 6 States
reviewed, the fee per ton of emissions ranged from about $ 18 per ton in Colorado to
$43 per ton in Pennsylvania. Additionally, EPA officials told us then that they
believed that insufficient fee revenue had a negative impact on issuing Title V
permits in a timely manner.
Administration of Air Toxics and Acid Rain-Related Programs Not
Cited
Although we saw Title V permits that contained air toxics and acid rain-related
requirements, none of the stakeholders we talked with cited the use of Title V as
beneficial in administering significant parts of these programs.
57
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Improved Enforcement and Faster Compliance
Three additional expected benefits cited in the Congressional record related to
improved enforcement and faster compliance, as follows:
• By listing all the applicable requirements in one document, Title V permits
would "... provide inspectors with specific information about regulated
equipment, performance standards, emissions limits, and other operating
parameters to facilitate their determination of the compliance status of..." the
facility.
• With greater agreement between industry and EPA, State, and local regulators
on the equipment that should be in place, performance standards, emissions
limits, and other operating parameters, this reduced uncertainty about what
applies, where, and when would help Title V facilities achieve compliance more
quickly.
• Submitting periodic compliance reports to EPA and the States, certifying that
the facility complies with all applicable CAA requirements, or specifying those
requirements that the facility did not comply with, under severe penalties. It
was anticipated that Title V sources would be made more accountable for their
emissions if the facility owners/operators were required to identify instances of
non-compliance with any applicable requirements.
Title V benefits associated with better enforcement and faster compliance could not
be definitively determined because of a lack of empirical data. However, some
stakeholders stated that Title V permits assisted inspectors in the performance of
their responsibilities and that the requirement to certify compliance resulted in
companies being more concerned with their facility's compliance. A key State
official and an official with a public interest group pointed out that it may be too
early to assess Title V's results associated with enforcement as initial Title V
permits are still being issued. Also complicating this assessment was that CAA
enforcement data can be interpreted two ways. Increased enforcement actions may
indicate that more violations are found because of Title V; conversely, reduced
enforcement actions may indicate better compliance and fewer violations due to
effective implementation of Title V.
Improved Enforcement Cited By Some Stakeholders
Improved CAA enforcement was cited as a benefit by officials in 3 of the 10 EPA
regions and in 2 of the 5 State Title V program evaluation reports. Benefits cited
included the ability of States to better target their enforcement and to provide their
inspectors with more useful information. In one State Title V program evaluation
report, the State indicated that, "Information from Title V operating permit program
is used to target inspections and/or enforcement " The State also reported that their
Title V permit program has improved the implementation of their program by, " ...
58
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identifying source categories or types of emission units with pervasive or persistent
compliance problems,..."
Faster Compliance Cited By Some Stakeholders
Faster CAA compliance was cited as a Title V benefit by officials in 3 of the 10
EPA regions and in 3 of the 5 State Title V program evaluation reports. We also
saw anecdotal evidence that, in some instances, faster compliance was achieved as a
result of Title V. Table 4.2 below illustrates these benefits.
Table 4.2: Anecdotal Illustrations of Compliance Benefits From Implementing Title V
Cited Compliance Benefits
State evaluation reports cited instances where emissions units needing control devices were identified
during the Title V permit issuance process.
State officials identified instances where facilities made operational changes to reduce emissions to
avoid being subject to the Title V program.
One industry representative and one EPA regional official said that Title V helped pollution prevention
efforts.
Another State indicated in a Title V program evaluation report that CAA compliance was improved and
resulted in actual emissions reductions.
One State reported that a permit writer found a source without an approved Volatile Organic Compounds
(VOC) Reasonable Available Control Technology (RACT) plan, which, when corrected, led to a decrease
in the source's emissions.
In another State, a source decreased their emissions from approximately 250 tons per year to 65 tons
per year to avoid Title V applicability.
Source: OIG Interviews of State officials and reviews of Title V program evaluation reports.
Some State officials indicated that Title V has resulted in facilities becoming more
conscious of CAA compliance issues involving their facilities. In one State Title V
program evaluation report, the State indicated that compliance behavior has
improved as a result of the Title V program. The State reported:
The following changes in compliance behavior on the part of sources have been seen
in response to the Title V operating permitting program: increased use of self-audits,
increased use of environmental management systems, increased staff devoted to
environmental management, increased resources devoted to environmental control
systems (e.g., maintenance of control equipment or installation of improved control
devices), increased resources devoted to compliance monitoring, and increased
awareness of compliance obligations. Overall, industry is paying more attention to
environmental issues. In some cases this awareness was pushed by the Title V
compliance certifications and making sure the responsible offices know what they
were signing.
Another State reported that their Title V program has assisted the State in
identifying compliance issues. The report stated that:
The Title y program has also been a means to bring compliance issues to light.
CDPHE [Colorado Department of Public Health & Environment] believes that
59
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potential compliance problems were encountered during review of approximately
40%-60% of the total permits. The compliance problems were most often identified
prior to issuance of the draft permit and after the final permit was issued. The
majority of these problems are related to NSPS, SIP, and minor NSR requirements.
Sources have responded to these compliance problems with increased self-audits,
increased use of environmental management systems, increased staff devoted to
environmental management, increased resources devoted to environmental control
systems, increased resources devoted to compliance monitoring, and better
awareness of compliance obligations.
Annual Compliance Certifications Focus Attention On Compliance
Officials from 6 of 10 EPA regional offices identified the submission of signed
ACCs as a benefit of Title V. Three of the five State evaluation reports indicated
that Title V sources providing verification of compliance with permit terms was a
Title V benefit. State officials reported that sources have spent more time and
resources on compliance matters. One industry official believed that the ACC
required too much reporting. Representatives from environmental groups believed
that the requirement for ACCs was a benefit of Title V. Our work similarly
suggests that these signed annual certifications have resulted in a greater emphasis
on compliance.
Consolidation of Requirements and Regulatory Certainty
Facilities that are large enough to be Title V sources are often subject to many
different CAA control requirements, such as those under the hazardous air
pollutant, nonattainment, and acid rain programs. Two benefits expected to be
achieved through the inclusion of all applicable CAA requirements into each
facility's Title V permit were:
to allow the public and other stakeholders to identify all applicable
requirements for the facility, and
• regulatory certainly for facility operators.
The results of our stakeholder interviews and reviews of State Title V program
evaluation reports indicate that the benefits associated with having permit
requirements in one document and providing regulatory certainty have been mixed.
In general, industry representatives did not agree with most other stakeholders.
Benefits of Consolidating Requirements Cited By Many Stakeholders
Officials from 4 of the 10 EPA Regions indicated that placing all the requirements
in one permit have been beneficial. This benefit was also cited in two of the five
State Title V program evaluation reports. State officials also indicated that Title V
has assisted their staffs in their understanding of applicable air pollution control
requirements. In a State Title V program evaluation report, one State reported that
their:
60
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... Title V staff has a better understanding of NSPS requirements, the SIP
stationary source requirements, the minor NSR program, the major NSR/PSD
program, how to design monitoring terms to assure compliance, and how to
write enforceable permit terms.
Another State similarly noted that:
Permit writers improved their skills in devising monitoring terms that assure
compliance and writing enforceable permit terms, as well as their knowledge
of applicability criteria for NSPS, NSR, and other Clean Air Act programs.
IDEQ fIdaho Department of Environmental Quality] believes these skills will
carry over into its other air permitting programs.
Contrary to the views of other stakeholders, industry officials indicated that
consolidating requirements in permits is an admirable goal, but that it has not been
accomplished because the requirements for many emissions units at large facilities
are subject to frequent changes, and that these changes are not easily incorporated
into Title V permits.
Regulatory Certainty Cited By Most Stakeholders
Though not identified as an expected benefit in the Congressional record, regulatory
certainty for permitting authorities was often cited as an expected benefit.
Regulatory certainty for facility operators was cited as a benefit by officials in 4 of
10 EPA Regions and 2 of the 5 State Title V program evaluation reports we
reviewed. Officials from 6 of the 10 EPA Regions cited regulatory certainty for
permitting authorities as a benefit. This benefit was also cited in 4 of the 5 State
Title V program evaluation reports and by State officials in two of the four States
we visited. Contrary to views of other stakeholders, industry representatives did not
agree that regulatory certainty had been accomplished because regulations changed
frequently and because of issues associated with permit clarity.
Benefits to Public Participation
Improved public participation was also a key expected benefit from Title V. By
requiring that both the permit and source compliance reports be made available to
the public, it was anticipated that interested citizens would be able to review and
help enforce a source's CAA obligations.
The extent of Title V benefit related to public participation cited in our interviews
of key stakeholders and State evaluation reports depended on the stakeholder's
perspective. Increased public participation was cited as a benefit by officials in all
10 of EPA's regions and by officials from public interest groups. One EPA Region
wrote to us that:
Title Vprovides much-needed public access to the permitting process and
transparency in CAA requirements that apply to industry. This has given the
61
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public an opportunity to be involved in the process of attaining and
maintaining clean air. This has also provided the public considerable
knowledge about a facility's operation and its obligation to keep the
environment clean.
Officials from another region agreed by writing:
The public comment process has benefitted the public by enabling it to review
proposed permits, request public hearings, and petition the administrator if its
concerns are not addressed by the permitting authorities. These added
provisions have spurred public participation in the permitting process and
increased the public's awareness of federal, state, and local requirements.
Through the comment process, the public has raised relevant issues that were
overlooked by the permitting authorities and the Region.
Although EPA has generally not responded to public petitions in a timely manner,
there appeared to be a significant amount of public interest in Title V programs and
permits based on the number of petitions filed by public interest groups. Industry
officials we interviewed told us that they believed that permits are written to a level
of detail which makes it very difficult to understand them unless the reader has a
detailed knowledge of the source's operations.
EPA and Industry Views of Title V Differed
Regional Officials Saw Substantial Improvements In Permits
All 10 EPA regional air offices noted that significant improvements have occurred
in a number of key elements in State permitting programs since the implementation
of Title V. The recording of all relevant CAA requirements in one document and
the ACC requirement were the most significant improvements identified.
EPA regional staff were asked to rank how successful permitting authorities were
with regard to six permit elements. These elements included: recording all relevant
CAA requirements in one document; requiring regular reporting of monitoring
results; requiring emissions monitoring, testing, and record-keeping; requiring
ACCs; encouraging public participation; and making terms federally enforceable.
Each element was ranked on a scale of 1 to 5, where 1 equaled "not at all" and 5
equaled "to a great extent," for a possible total cumulative rank of 30. Cumulative
rankings by EPA regions for pre-Title V efforts overall ranged from a low of 9 to a
high of 17, with an average of 14.2. Rankings by EPA regions for post-Title V
efforts were significantly higher, ranging from 24.2 to 29.7, with an average of 27.
Average ranking responses to individual program elements ranged from 1.! to 3.4
before Title V and from 4.1 to 4.8 after Title V.
Several regional officials noted that the permit elements they ranked as improving
the most, recording all relevant CAA requirements in one document and requiring
ACCs, were elements that were not required in the NSR or PSD programs, or any
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other permitting program prior to Title V. They noted that some pre-Title V permits
issued by permitting authorities may have included one or more of the six permit
elements on an individual basis, but that there was no systematic requirement to
address these elements prior to Title V. EPA regional officials also noted that a
handful of permitting authorities with operating permit programs prior to Title V
did do an adequate job implementing certain elements, such as including limited
monitoring, reporting, and record keeping requirements in their permits.
Industry Officials Viewed Title V as Costly and Burdensome
The industry representatives we interviewed represented large companies from
various industrial sectors with facilities located throughout the United States. These
individuals cited several potential benefits that could be achieved by the Title V
program including (1) placing all requirements in one document, (2) increasing
communications between source and permitting authority, and (3) streamlining of
permit requirements. However, in general, these benefits were largely described as
benefits only in theory. These representatives believed that the size and complexity
of Title V permits and the changing nature of their applicable regulations made it
impossible to achieve the goals of putting all the requirements in one document and
achieving regulatory certainty. The representatives also said that streamlining
requirements was difficult to achieve. Their statements were generally followed
with a caveat stating that, in practice, the benefits are not seen because of other
factors that make the Title V program a high cost, high burden program. They
claimed high financial costs of the Title V permits and the administrative backlogs
caused by permit modifications and renewals were detriments to the Title V
program. In addition, industry officials expressed concern over the inconsistencies
among EPA regions and State permitting authorities in their implementation of
Title V programs and the permitting process.
Results of OIG Review of Pre- and Post-Title V permits
Our review of a sample of Title V permits in four States included an analysis of pre-
Title V permits issued to sources in our sample. All of the sources we reviewed
were issued some type of permit prior to the beginning of the Title V program. Pre-
Title V permits issued to these sources included State permits to construct or
operate, NSR permits, and PSD permits. In the majority of cases, the pre-Title V
permit was available for our review. As shown in Table 4.3, we found that the
content of the pre-Title V permits varied; however none of the permits contained all
the elements required in Title V permits.
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Table 4.3: OIG Analysis of Pre-Title V Permits for Sources In Our Sample
Pre-Ti-le V permit issued
Pre-Title V permit available for review
Pre-Title V permit contained the
following elements (of those permits
available for review):
1. All CAA requirements
2. Monitoring, testing, record keeping
3. Periodic monitoring
4. Annual compliance certifications
5. Public participation & objections
6. Terms federally enforceable*
7. Regular reporting
NC
10
10
1
10
9
0
0
4
6
TX
10
10
0
9
7
0
0
0
2
NY
10
8"
0
4
3
1
3
3
2
OH
10
10
1
9
8
0
0
0
7
Total
40
38
2/38
32/38
27/38
1/38
3/38
7/38
17/38
Percent
100%
95%
5%
84%
71%
3%
8%
18%
45%
Source: OIG analysis of Title V permit information
are
if or
• In some cases, the pre-Title V permits provided were. NSR permits. Rules governing NSR permitting! ai
federally enforceable when approved into a SIP. The nformation in the Tablff above reflects only whetnei
not the permits stated that they were federally enforceable on the face of the permit.
" Prior permits were not provided for two New York permits. In one case, the files could not be located; in
the other case, the old permit ties had been purged.
Generally, the pre-Title V permits we reviewed did not record all CAA
requirements in one document. They also did not require ACCs or provide for
public participation and public right to object to permits. The terms of the pre-Title
V permits were not explicitly federally enforceable in most cases. Most permits
contained provisions for at least some monitoring, testing, and record keeping;
however, they did not always require periodic monitoring or regular reporting. In
addition, the application of monitoring, testing, and record-keeping provisions were
not consistent for all requirements in pre-Title V permits. In general, non-Title V
permits issued after the Title V program was in place (but before the source
received their Title V permit) were more complete than earlier permits.
We also reviewed the extent to which the limited requirements found in pre-Title V
permits were incorporated into the Title V permits. In the majority of cases, the
Title V permits contained all of the requirements found in the prior permits. In
some cases, however, it was difficult to track requirements from the prior permit to
the Title V permit. For example, in Texas a facility may have one NSR permit and
two or mote Title V permits. It was not possible to determine if all the NSR
requirements were incorporated without reviewing all of the Title V permits for a
source. Our methodology, however, limited us to reviewing one permit per facility.
In addition, in Ohio, changes between the pre-Title V permit and the Title V permit
sometimes made it challenging to compare requirements. Ohio State officials
provided explanations for these discrepancies upon request.
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Conclusions
Despite implementation and oversight problems with Title V permits, legal
setbacks, and some industry resistance, the Title V program has generally resulted
in significant benefits. Benefits have been recognized by State pollution agencies in
significantly improving their knowledge of air pollution sources which they believe
has improved their efforts to reduce air pollution levels in their States. Although
the adequacy of compliance certifications is inconsistent among the States, the
States have improved enforcement tools as a result of the requirement that source
compliance be certified periodically by a responsible official and submitted to the
State agency and EPA. Responsible officials generally have a better knowledge of
their plants' operations and are placing more emphasis on compliance with the
applicable regulations, according to officials in State enforcement offices.
In addition to identifying the specific benefits of Title V, officials in all 10 EPA
regions cited significant improvements overall in State and local permitting since
the implementation of Title V. We found similar results as a result of our review of
pre-Title V permits issued to sources in our State samples. The most significant
improvements identified by EPA regional officials were recording all relevant CAA
requirements in one document and the requirement for ACCs. These requirements
are key factors in providing all stakeholders with the information needed to
understand the air pollution requirements which major emitting sources are subject
to, as well as how well they are meeting those requirements.
Recommendations
We recommend that the AA for Air and Radiation:
4-1. Consider forming a stakeholder advisory group, possibly in conjunction with
the CAA Advisory Committee, to solicit input on needed Title V guidance and rules
from selected State and local agencies, and industries or industry associations,
environmental groups and other interested stakeholders.
Agency Comments and OIG Evaluation
EPA agreed with recommendation 4-1 but disagreed with our recommendation 4-2.
Upon further consideration, we decided to remove recommendation 4-2 from the
final report. EPA Headquarters and regions agreement to continue long-term
oversight of Title V implementation, including permit reviews and comprehensive
Title V program reviews, should provide sufficient information to identify Title V
areas still in need of improvement. The Agency's consolidated response and our
evaluation of that response are in Appendix F.
65
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Definition of Major Stationary Sources
Appendix A
Passage of the CAA Amendments of 1990 also brought new definitions of major stationary sources
that varied depending on the type of pollutant, the attainment status of the area where the pollutant
is emitted, the synergistic effects of multiple airborne pollutants, the ability of some pollutants to
travel long distances, and other factors. As a result, simple definitions of what sources are and are
not major sources of air pollution are difficult to find. Generally, a major source is any source
with annual emissions that meet or exceed levels specified in the Act.54
Table A. 1 shows the annual emission levels, in tons of pollution, that define a major source of any
of the National Ambient Air Quality Standard pollutants under the Act:
Table A.1: Categorization of Major Sources
Attainment
Status
of Area
Where
Source Is
Located
Attainment
Areas
Potential to Emit (Tons/Year)
Carbon
Monoxide
(CO)
100
Lead
-------
referred to as air toxics. The act listed 188 such air toxics, including the airborne emissions of
such things as arsenic, asbestos, benzene, dioxin, formaldehyde, mercury, and perchloroethylene.
By definition, any source is a major source if it emits 10 or more tons annually of any one of these
188 air toxics, or 25 or more tons of any combination of these 188 air toxics. Facilities emitting
these 188 air toxics are regulated under the National Emission Standards for Hazardous Air
Pollutants.
«
Additionally, engaging in or undertaking certain activities can cause a source to become a major
source. These generally involve sources that are subject to one or more of the following:
• EPA's New Source Performance Standards limitations for new sources of pollution.
• Prevention of Significant Deterioration provisions or the nonattainment area New
Source Review provisions for expanding or changing sources.
• Selected sources with potential to contribute to acid rain problems.
* Solid waste incinerators.
According to EPA, over 35,000 sources in the United States have the potential to emit pollutants in
sufficient amounts to be a major source, and thus be required to obtain a Title V permit. However,
about 17,000 sources have chosen to limit their hours of operation, install pollution control
equipment, or take other actions to avoid being subject to the Title V requirements.
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Details on Scope and Methodology
Appendix B
Objective 1
To assess the adequacy of Title V operating permits, we conducted interviews with officials in
OAQPS and OECA, representatives from 10 environmental groups and 5 industrial concerns, and
key officials in all 10 EPA regional offices. The EPA regional officials we interviewed included
air office directors or managers, Title V program managers, State coordinators, permit reviewers,
enforcement staff, and regional counsel. We also interviewed Title V program managers, permit
writers, permit reviewers, and enforcement staff in four selected States we visited: New York,
North Carolina, Ohio, and Texas. In addition, we reviewed 40 Title V permits; 10 in each of the 4
States we visited. We created a structured interview form and a data collection instrument to
document the data collected and facilitate in analysis. Information on these follows.
Structured Interview Form
Based on issues identified in our preliminary interviews of key stakeholders, a structured interview
form was created for use in interviews of EPA regional officials. This form was sent to region air
program officials in preparation for interviews via video or telephone conference. The structured
interview form contained questions regarding Title V implementation and oversight, regional
assessment of permit adequacy, regional assessment of permitting authority progress, the impact of
Title V, and the resources available for the Title V program. In addition to responding to the
questions orally, all 10 regions supplemented their interviews with written responses to the
questions outlined on the structured interview form. EPA regional interviews were conducted
from December 2003 to March 2004.
Data Collection Instrument
In addition to the structured interview form, a data collection instrument was created to aid in the
State permit review aspect of our field work. Questions were developed for the data collection
instrument by researching Title V guidance and policy documents, and Title V issues identified in
preliminary interviews and in publicly available literature on Title V issues. Documents used to
generate review areas and questions included EPA white papers, guides to aid the public in
reviewing Title V permits available on EPA's website, the EPA Region 3 Title V permit writer's
guide, and various permit training and issue-related documents.
Sample Selection
Due to the large number of permits needed to create a sample statistically representative of the
universe of Title V permits nationwide, and limitations on OIG resources, we decided to
judgmentally select four States and randomly select 10 permits to review from within each State.55
The four States selected for permit review included; New York, North Carolina, Ohio, and Texas.
Three States (New York, Ohio, and Texas) were identified by OAQPS, EPA regions, and
55
Selection of Slate permits was random within the context of certain parameters.
68
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environmental groups as States with varying degrees of problems associated with their Title V
permits. Ohio and Texas had received NODs as a result of Title V program problems; Ohio,
Texas, and New York wrote commitment letters to EPA pledging to address problems with Title V
permit implementation issues.
Permits in these States have received a number of public complaints. North Carolina was
recommended by OAQPS and EPA regional officials as a State that had not received such NODs
and few complaints. Another selection criteria we considered was the relative significance of major
source emissions on air quality. With the exception of North Carolina and Ohio emissions of
PM10, the States rank in the top 15 of emitting States for selected criteria pollutants.56
We stratified our sample within each of the four States selected by reviewing industries in each
State. The top five industries were ranked by Standard Industrial Classification (SIC code)
according to annual tonnage of emitted pollutants (see Table B. 1).
Table B.1: Top Five Emitting Industries (of Criteria Pollutants) In Each State
NwYofK
1. Electric Services
2. Photo Equip &
Supplies
3. Cement
Hydraulic
4. Else & Other
Services
Combined
5. Blast Furnaces
and Steel Mills
North Carolina
1 . Electric Services
2. Paper Mills
3. Wood Furniture
4. Industrial Organic
Chemicals
5. Pulp Mills
ON0
1 . Electric Services
2. Elec & Other
Services Combined
3. Blast Furnaces &
Steel Mills
4. Inorganic Pigments
5. Primary Aluminum
Texas
1 . Electric Services
2. Petroleum Refining
3. Industrial Organic
Chemicals
4. Natural Gas
Liquids
5. Cattoon Black
Source; OIG analysis of data from EPA NETFac ity SIC Report. See www.epa.gov/air/data/geosel, html
The following steps were then taken to select industries for permit review: (1) all industries that
appeared in at least two of the States' top five lists were included; and (2) the next two largest
polluting industries for each State were included. Step 1 resulted in selecting three industries -
electric services, blast furnaces, and industrial organic chemicals. Step 2 added another eight
industry types for a total of eleven selected industries. Table B.2 lists all 11 selected industries.
56,,
Based on 1998 State-level emissions and rank for CO, NOX, VOC, SO2 and PM10 (EPA Report
"National Air Pollutant Emission Trends, 1900 -1998" (EPA-454/R-00-002), page 36).
69
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Table B.2: Industries Selected For Permit Review
Selected Industrie* for Review
(SIC- Industry Type)
1. 491 1 - Electric Services
2. 331 2 - Blast Furnaces and Steel Mils
3. 2869 -Industrial Organic Chemicals,
nee
4. 2621 - Paper Mils Exc Building
Paper
5. 251 1 - Wood Household Furniture
6. 2911 - Petroleum Refining
7. 1321 - Natural Gas Liquids
8. 2816 - Inorganic Pigments
9. 3334 - Primary Aluminum
10. 3861 - Photograph Equipment &
Supples
11. 3241 - Cement Hydraulic
NOwYor*
X
X
X
X
X
X(1)
X(1)
X
X
X
North
CaroBna
X
x(ir
X
X(3)
X
X(1)
X(1)
X(2)
X(3)
Ohio
X
X
X
X
X(1)
X(2)
X<1)
X<2)
X(1)
X(2)
Texas
X
X
X
X(3)
X
X
X
Source/ State info on Title V permits by SIC code received from NC, 7X, OH. and NY officials.
' Numbers in () represent the number of facilties In a specific SIC if three or fewer.
To select the sample of Title V permits from among the selected industries, we obtained a list of
Title V permits issued in each of the 11 SIC codes, identified in Table B.2, for New York, North
Carolina, Ohio, and Texas. The lists included permit number, source name, and date of permit
issuance. After assigning a chronological number to each permit, the team used a random number
generator to select one permit from each SIC code in each State.57 A total of 40 permits were
selected, 10 from each State. The permits had to meet the following criteria in order to be included
in the sample: (1) permit must be a valid Title V permit; (2) permit must be issued on or after
January 1, 1999;58 and (3) permit must not be a source on the same property as other permits in the
sample.
Although the sample size was not large enough to be statistically projected nationwide, a broad
range of industries and Title V permits were reviewed. Our selection methodology allowed for
some cross-State comparison of Title V permit content and adequacy among specific industries,
and it also allowed us to review Title V sources in the largest emitting industries in each State. For
each source selected, the final Title V permit, SB, ACC, related enforcement documentation, and
the most recent pre-Title V permit were reviewed, if available. Data were collected in each State,
using our data collection instrument, from April to June 2004.
57In States that did not have 10 of the 11 industries selected, we randomly sampled additional permits from
the lists provided by the States until we had selected 10 permits in each State.
5BA11 but seven Title V permitting authorities received at least interim program operating approval by 1997
(see EPA O1G Report No. 2002-P-00008 p.51 and www.epa.gov/air/oaqps/permits/approval). We started our
sample two years (January 1999) after all programs were approved to ensure that the permitting authorities had time
to get their programs operational and work through early implementation problems.
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Limitatbns
Information received as a result of EPA regional officials interviews were based largely on regional
officials' opinions and experiences with Title V, and generally not on in-depth program analysis.
Because of the many possible technical approaches or methods to controlling and monitoring
emissions, certain aspects of Title V permits can be challenging to assess. Many of these
approaches and methods are subject to differing interpretations. Because of the complexity and
uniqueness of permits, we were not able to develop extensive comparisons by industry.
Objective 2
To assess the effectiveness of EPA oversight and guidance, we examined EPA region efforts to
review individual permits and conduct program evaluations according to OAR guidance. Copies
of FY2001, FY2002, and FY2003 memorandums of agreement between the regions and OAR, and
program evaluation reports completed by the regions were obtained and reviewed. Testimonial
evidence regarding region permit review activity was obtained during interviews with EPA
regions. Responses were compared to the actual memorandums of agreement to see if they were
meeting the agreements with OAR.
To evaluate EPA responses to public petitions, the Title V petition database on EPA Region 7's
website was reviewed. The data, last updated in October 2004 and representing Title V public
petitions filed from July 1996 to October 2004, were analyzed to determine if EPA was obligated
to respond to these petitions within 60 days, under §505(bX2) of the CAA. Also, using these data,
an EPA response rate to public petitions was calculated as well as an average time of response to
the petitions.
We also sought to determine if the issues raised in NODs and commitment letters had been
addressed and resolved by the relevant permitting authorities. NODs and commitment letters were
reviewed and the issues identified in each were followed up in three States we visited (North
Carolina did not receive an NOD or issue a commitment letter). We tracked the resolution of the
NODs through the FR and contacted OAQPS and EPA regional officials when there was not a FR
notice available. For commitment letters, we were not able to verify completion of all the
commitments for the States that we did not visit since the commitments were program
implementation issues and not State regulatory issues resolved through trackable rule changes. We
assessed the steps taken towards completing the commitment letters in the States we visited.
To assess the adequacy of guidance provided by OAR to regions and permitting authorities, two
separate EPA guidance databases were reviewed. The Technology Transfer Network, which
contains formal, signed guidance and policy memoranda, was accessed via the EPA Title V
Permits website. This database contained 70 documents. The other guidance database that was
reviewed was the searchable database found on the EPA Region 7 Air Program website, which
contains letters and responses to petitions. The Region 7 database contained more documents than
the Technology Transfer Network, with 220 guidance documents stored in the database. These
databases were reviewed to identify the body of Title V guidance available. Questions were
included in the structured interview form, and asked during interviews with EPA regions, to
determine if there was a need for further EPA guidance on specific Title V related issues.
71
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Limitattons
EPA issuance of guidance, regarding the Title V program, has been impacted by various court
decisions, making it difficult for the Agency to issue formal guidance on many issues. Informal
guidance, in the form of NODs, commitment letters, and responses to public petitions, is more
difficult to track than formally issued EPA guidance. OIG staff did not have resources to conduct a
comprehensive followup on all oversight and guidance issues, such as all permitting authorities'
resolution of all commitment letter issues.
Objective 3
To determine whether Title V improved implementation of the CAA, we interviewed
representatives from all 10 EPA regions using the structured interview form. Specifically, we
asked regions to rate how well certain elements of the CAA were met both before and after the
Title V program was implemented. We also asked regions to provide specific examples of any
benefits experienced as a result of the Title V program. In addition, we interviewed representatives
from key stakeholder groups including OAQPS, OECA, permit writers/reviewers from selected
State permitting authorities, environmental groups, and industry representatives. Using the data
collection instrument, we also reviewed actual permits from a selected number of States and
compared their contents and requirements to pre-Title V State permits, where available.
Limitations
No empirical evidence was available from EPA relating to this objective. Because of this, we
relied on anecdotal evidence to answer this objective. OMB had not evaluated EPA's Title V
program under its Program Assessment Rating Tool as of the end of our fieldwork.
We conducted our fieldwork from September 2003 to October 2004. All work was done in
accordance with the Government Auditing Standards, issued by the Comptroller General of the
United States.
Prior Audit Coverage
Government Accountability Office
• Air Pollution: EPA Data Gathering Efforts Would Have Imposed a Burden on
States - GAO/AIMD-95-160, August 1995
Air Pollution: Status of Implementation and Issues of the Clean Air Act
Amendments of1990 - GAO/RCED-00-72, April 2000
• Air Pollution: Emission Sources Regulated by Multiple Clean Air Act Provisions -
GAO/RCED-00-155, May 2000
Air Pollution: Implementation of the Clean Air Act Amendments of 1990
(Testimony) - GAO/RCED-00-183, May 17, 2000
Air Pollution: EPA Should Improve Oversight of Emissions Reporting by Large
Facilities - GAO-OM6, April 2001
72
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EPA Office of Inspector General
EPA and State Progress in Issuing Title V Permits (2002-P-00008), March 2002
Public Participation in Louisiana '$ Air Permitting Program and EPA Oversight
(01351 -2002-P-OOO11), August 2002
• EPA Region 6 Needs to Improve Oversight of Louisiana's Environmental Programs
(2003-P-00005), February 2003
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Appendix C
Observations on Statements of Basis and Annual
Compliance Certifications In Four States Reviewed
Statements of Basis
New York
Up until December 2001, New York did not prepare SBs or equivalent documents for their
permits. In response to a public petition, New York issued a commitment letter to EPA dated
November 16, 2001, in which it agreed to prepare a document called the Permit Review Report for
each Title V permit. Permit Review Reports are New York's version of SBs, and were prepared
for 8 of the 10 New York Title V permits we reviewed. With two exceptions, these Permit Review
Reports included (1) a description of the facility and the manufacturing process, (2) a summary of
emissions, emissions units, and control devices, (3) an explanation of why the source is subject to
Title V, (4) the attainment status of the area where the facility is located, (5) a summary of
applicable requirements, and (6) an explanation for applicability determinations. One of the Permit
Review Reports did not provide a description of the facility and the manufacturing process. One
other Permit Review Report did not explain regulatory applicability determinations. Six of the
eight Permit Review Reports provided the basis for periodic monitoring decisions. The other two
Permit Review Reports simply indicated that regulations were the basis for periodic monitoring
decisions without providing any specific explanation.
North Carolina
North Carolina prepared Initial Title V Air Permit Application Reviews (Application Reviews) for
the 10 permits we reviewed, which were considered to be SBs by the State. All of the Application
Reviews included a description of the facility and the manufacturing process, and a summary of
emissions, emissions units, and control devices. Only two of the Application Reviews provided an
explanation as to why the facility needed a Title V permit. However, the most recent Application
Review completed in February 2004 identified the pollutants and the amount of emissions that
exceeded the major source thresholds. The Application Reviews did not indicate the attainment
status of the areas where the facilities were located, though we were told by State officials that
North Carolina did not have any areas of non-attainment at the time the permits were issued. All
10 of the Application Reviews provided a summary of applicable requirements. For eight of the
permits, the corresponding Application Reviews explained the regulatory applicability
determinations. Except for one instance, the Application Reviews provided the basis for periodic
monitoring decisions.
Ohio
Following the issuance of the December 20, 2001, memorandum from EPA Region 5 to Ohio on
SB content, Region 5 informed a public interest group in a petition response that Ohio had
committed to working with the Region to improve their SBs. However, the SBs completed for the
74
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Ohio permits we reviewed did not include several key elements identified in EPA Region 5's 2001
memorandum. State of Ohio officials told us they do not believe that a substantial amount of
resources should be devoted to preparing SBs. These officials believed that their resources should
be used instead to complete their unfinished permits and that much of the same information EPA
Region 5 believes that should be in a SB is already in Ohio permits. The 10 Ohio SBs we
reviewed included (1) a summary of emissions, emissions units, and control devices, (2) an
explanation of why the source is subject to Title V by identifying the major pollutants, and (3) a
summary of applicable requirements. Nine of the SBs included an explanation for the regulatory
applicability determinations. Two of the nine SBs prepared for the permits with monitoring
requirements provided the basis for periodic monitoring decisions. However, none of the SBs
provided an adequate description of the facility, the manufacturing process and the attainment
status of the area where the facility is located.
Texas
Texas amended their regulations to require SBs for their Title V permits in response to an EPA
NOD issued on January 7, 2002. Texas prepared Technical Summaries for the six permits we
reviewed that were issued prior to 2003 and SBs for the four 2003 permits. We reviewed the SBs
and Technical Summaries for 10 permits. The Technical Summaries provided a description of the
facility and the manufacturing process and also provided summaries of emissions, emissions units,
and control devices. The Technical Summaries generally provided an explanation of why the
sources were subject to Title V and sometimes indicated the attainment status of the areas where
the facilities were located. The Technical Summaries did not provide a summary of applicable
requirements or an explanation for regulatory applicability determinations. Further, the Technical
Summaries did not provide a basis for periodic monitoring decisions. However, Texas' SBs were
an improvement over Technical Summaries. These SBs provided (1) descriptions of the facilities
and manufacturing processes, (2) summaries of emissions, emissions units, and control devices,
(3) explanations of why the sources are subject to Title V including charts of the emissions
thresholds for defining major sources, (4) the attainment status of the areas where the facilities are
located, (5) summaries of applicable requirements, and (6) explanations for applicability
determinations. Two of the four SBs provided the basis for periodic monitoring decisions.
Annual Compliance Certifications
New York
All of the New York ACCs we reviewed met the 40 CFR Part 70 requirements. All 10 of the
compliance certifications addressed the general terms and conditions in the permits to varying
degrees. The individual terms and conditions for the emissions sources were identified in the
ACCs. However, generally, we believed the ACCs we examined in New York were more complete
than those we examined in the other three States.
North Carolina
The seven North Carolina ACCs we reviewed met the applicable requirements of 40 CFR Part 70.
ACCs were not yet due from three Title V permitted facilities since their permits had been issued
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within the prior year. We noted that not all of the ACCs included a certification of compliance
with each of the permit general terms and conditions. Prior to FY 2004, the State required the
facilities to report only on compliance with the monitoring, reporting, and record keeping
requirements in the permits. The facilities were not required to report on compliance with the
general terms and conditions listed in the permit. According to officials in North Carolina, EPA
Region 4 officials requested that all States in the Region require their facilities to address
compliance with the general terms and conditions in ACCs. In FY 2004, three of the seven ACCs
addressed compliance with all of the permit requirements, including the genera) terms and
conditions. According to North Carolina officials, some confusion still remained among their
permitees regarding their new requirements.
Ohio
All of the Ohio ACCs we reviewed met the 40 CFR Part 70 requirements. Ohio does not require
identifying the individual general terms and conditions when permittees certify annual compliance.
Rather, the Ohio ACC form requested only that the facility identify any deviations from the general
terms and conditions. All of the Ohio sources required to have submitted an ACC submitted their
ACC in a timely manner. We noted one instance when the certifying official for the source did not
understand the meaning of continuous and intermittent compliance. A note attached to the ACC
stated, "The facility submitted the report. This is the first year that the facility is reporting.
Although there are many T for intermittent - the facility did not have any deviations in the
permit..." As explained in our report, there was confusion as to how the terms "intermittent and
continuous compliance" should be interpreted. The State official we interviewed said that it
appeared that the official did not understand the form and that the State would work with them.
Texas
In early 2002, Texas sent a commitment letter to EPA Region 6 officials promising to modify their
ACCs to clarify how material information other than the required monitoring should be reported.
The Texas ACCs we reviewed did address the issue of reporting other material information, but the
forms submitted by facilities in Texas were not as complete as those received by the other States
we visited. The ACCs submitted by facilities in Texas consisted of a cover form that addressed the
overall compliance with the terms and conditions of the permits and included 6-month deviations
reports. The individual permit terms and conditions are not identified in the ACC cover form or in
the deviations report. The cover forms only state that the facility is in compliance or identifies any
deviations that occurred in the past year. The deviation reports are required to be submitted semi-
annually in accordance with the provisions found in the general terms and conditions section of the
Title V permits. The deviation reports are used to identify monitoring, reporting and record-
keeping deviations along with site-wide deviations associated with the general terms and
conditions. The ACCs do not identify whether there was continuous or intermittent compliance
with each individual permit term or condition. The method for determining compliance is also not
identified in Texas1 ACCs. In Public Citizen, the Court ruled that EPA had the discretion to
approve the ACCs received by Texas.59
Table C.I shows the differences between the four States discussed above as to how permit terms
Public Citizen, 343F.3d at 449.
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and conditions are addressed in compliance certifications. As noted in the chart, the content of the
annual certifications differed substantially by State.
Table C.1: Permit Terms and Conditions From Permits Reviewed in Four States
sal* ... . ;
New York
North Carolina
Ohio
Texas
Individual general term* and
condition* KfedtHted In ACCs?
Yes, in all certifications
Beginning in 2004; 4 of the 7
certifications identified at least one
general term and condition
Reported deviations only
Facilities report deviations in the
attached deviation reports per Texas
officials
individual t*rro* and
condition* for emtoslon* '
sources kfentifted In :
ACC«r : ' ~< • "• '-' •' .
Yes
Yes
Yes
Reported deviations only in
attached deviation report
* The terms and conditions were monitoring, reporting, and record keeping requirements.
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Appendix D
EPA, State, and Local Agency Roles and
Responsibilities in Implementing Title V
EPA Promulgates Rules, Provides Guidance, Oversees Authorized Programs
EPA is responsible for promulgating regulations; establishing the minimum elements of a Title V
permit program; reviewing, approving, and overseeing permit programs; reviewing permits issued
by the State and local agencies; and providing guidance and technical assistance to State and local
agencies, industry, and others to facilitate achievement of program goals. EPA is also responsible
for implementing permit programs for any State and local agencies that do not implement their
own programs.
While State and local agencies primarily implement the Title V program, EPA has an important
oversight role. EPA reviews and approves each State and local agency's operating permits
program; oversees implementation of the program; reviews proposed permits; and, if necessary,
objects to improper permits proposed. In addition to approving State or local agency programs,
EPA is responsible for ensuring that State and local agencies administer and enforce the programs.
If EPA finds a State or local agency is not adequately administering and enforcing a part of the
Title V program, EPA is to notify the State or local agency of hs finding. If the deficiencies are not
corrected, EPA can apply sanctions, withdraw the program, or administer a federal program in that
State.
Within EPA's OAR. OAQPS is responsible for developing national regulations and guidance for
Title V and providing technical assistance to EPA regions and the States. Regions are responsible
for reviewing proposed permits, conducting Title V program evaluations, assisting State and local
agencies in getting initial permits issued, and monitoring permit renewal requirements. Every two
years, OAR and the regions negotiate a Memorandum of Agreement (MOA) identifying, among
other things, the Title V oversight activities that EPA regions are to perform.
States, Local Agencies Authorized to Implement Title V
Once approved by EPA, State and local agencies are responsible for establishing and implementing
their permit programs, issuing permits to major sources of air pollution located within their
geographical jurisdictions, collecting fees to cover the cost of the programs - including the initial
costs of issuing permits to sources - and ensuring that sources comply with their permit limits.
Under the CAA, State and local agencies that do not adequately implement the Title V permit
program may lose their authorization to continue administering the program.
There are 112 State and local agencies in the United States approved by EPA to administer the
Title V permitting program. In some States, local agencies are responsible for implementing air
pollution control programs, such as Title V. To have an approvable program, State and local
agencies must be able, through fees, to recoup all reasonable costs of developing and administering
the program, including the reasonable costs of emission and ambient monitoring, modeling, and
reviewing and acting on permit applications. The objective of the fee is to ensure the State or local
agency has all necessary resources to administer the permit program with a minimum of delay.
Other key provisions that must be part of a Title V program before EPA will approve it include:
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• Monitoring and reporting requirements.
• Authority to terminate, modify, or revoke and reissue permits for cause.
• Authority to enforce permits, permit fee provisions, and the requirement to obtain a permit.
• Public notification and opportunity for comment for every new permit and when permits are
renewed or significantly revised.
• The requirement that sources provide emission reports to their permitting authorities at least
semi-annually and certify compliance status annually.
Also, Title V permits are to contain all air pollution control requirements that a source must meet
under the CAA. This includes requirements established by EPA, State, and local agencies as part
of a federally approved program, as well as State and local agencies that are not required by the
Act and are not federally enforceable.
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Status of EPA Regional Evaluations and
Notices of Deficiencies
Table E.1: Status of EPA Regional Evaluations of Title V Programs
Appendix E
Reg ton
1
2
3
4
S
6
7
8
9
10
Total
Number of
permitting
authorities to be
evaluated through
Sept. 30t 2006
6
4
7
17
6
5
5
6
6
10
72
Number
evaluated
through
December 31,
2004
3
2
3
4
4
2
4
4
2
3
31
Number
with reports
is«u«d
1
1
2
3
1
2
0
2
1
1
14
Number of
completed
evaluation*
without written
report a* of
December 2004
2
1
1
1
3
0
4
2
1
2
17
Source: Data provided by EPA OAQPS and region officials
Table E.2: Status of Title V Notices of Deficiency - October 2004*
Permitting authority
Indiana
Michigan
District of Columbia
Washington
Texas
Missouri
Hawaii
Ohio
34 Local Agencies in
California
Wisconsin
NOQ issue date
12/11/01
12/11/01
12/11/01
1/2/02
1/7/02
3/25/02
4/1/02
4/18/02
5/22/02
3/4/04
Date of proposed
approval
5/16/02
6/23/03
4/16/03
6/28/02
3/2/04
9/17/03
Not Issued
9/30/03
10/8/03
Resolution Pending
Date of final
approval"
5/16/02
11/10/03
4/16/03
12/2/02
Not Issued
9/17/03
Not Issued
11/20/03
11/21/03
Resolution Pending
Source: Data provided by EPA OAQPS and region officials
•Listed in chronological order from NOD issue date.
final appraval
of the action
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Appendix F
Consolidated Agency Response to Draft Report and OIG
Evaluation
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
AIR AND RADIATION
MEMORANDUM
SUBJECT: Response to Draft Report No. 2003-000339 "Substantial Changes Needed in
Implementation and Oversight of Title V Permits If Program Goals Are To Be
Fully Realized"
FROM: Jeffrey R. Holmstead
Assistant Administrator
TO: J. Rick Beusse, Director for Program Evaluation, Air Issues
Office of the Inspector General
I am responding on behalf of my office, the Regional Offices, and the Office of
Enforcement and Compliance Assurance (OECA) to the Office of the Inspector General's (OIG)
draft report of findings and recommendations concerning State Title V permit adequacy and EPA's
oversight. We appreciate the insights the report provides in addressing the question: "Are Title V
permits clearly written and complete, and is the permitting program as a whole achieving its
mandated goals?" and agree with your findings that the program could benefit from improvements
to permit content in some areas. While the Agency has been - and continues- reviewing permit
content and program adequacy, we agree with the OIG's findings that we can do more. Along
these lines, we are proposing to expand the use of our stakeholder workgroup as a means of
identifying what is working (and what is not working), to streamline the petition response process
where feasible, and to develop operating plans that combine oversight with permit reviews and
evaluations. In general, we disagree that guidance documents offer solutions to Title V program
implementation issues, especially now that a decade has passed since program approvals and
because almost all permits have been issued. We believe it is better to work with our Regional
Offices on improving the implementation of the Title V program when specific issues arises with a
given permitting authority.
Attached is our coordinated response, which includes a page-by-page editorial comment
section and a section with the OIG draft recommendations and our responses. If you have any
questions about this response, please contact Ray Vogel at 919-541-3153.
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Attachments
cc: Beth Craig
Steve Page
Bill Hamett
BillWehrum
Scott Mathias
Rick Beusse
Jan Cortelyou Lee
Kay Holt
Laurie Trinca
Scott Voorhees
Ray Vogel
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Substantial Changes Needed in Implementation and Oversight of Title V
Permits If Program Goals Are To Be Fully Realized
Comments on Report Content
Report Pages 6. 39 and 79:
EPA Comment: The numbers on pages 6 (Chapter 1), 39 (Chapter 3) and 79 (Appendix E) are
now out of date. The updated numbers through the end of 2004 are:
Table E-1: Status of EPA Regional Evaluations of Title V Programs
Region
1
2
3
4
5
6
7
8
9
10
Total
Number of PermtWng
Auttoritie* «o be
Evaluated Through
Sept. 30,2006
6
4
7
17
6
5
5
6
6
10
72
Number
evaluated
through Bee.
31,2004
3
2
3
4
4
2
4
4
2
3
31
Number with
Report*
Issued
1
1
2
3
1
2
0
2
1
1
14
Number of
Completed
Evaluations
Without Wfittiu}
Report as of
December 2004
2
1
1
1
3
0
4
2
1
2
19
Note: After the Agency provided its response to our draft report, an OAQPS official notified us that there was an
addition error in the above Table. The corrected information is reflected above.
QIC Response:
Table E-1 and relevant references to the table have been changed in the report based on
information provided by OAQPS.
Report Page 15:
EPA Comment: Regarding incorporation by reference (IBR), while Region 6 agrees IBR can lack
clarity and make the review of permit conditions time consuming, EPA believes IBR can be a very
effective tool when used properly.
Report Pages 15-17: The report states that EPA officials in 6 out of the 10 regions perceive the
lack of nationwide guidance result in inadequate statement of basis (SB). Environmental groups
also reported problems with SB in citizen petitions.
EPA Comment: The report does not explain that EPA investigated the problems, although in the
following sentence the report correctly states that SBs have improved.
OIG Response:
In Chapter 3 of the report, we noted that SBs in Texas improved and that New York started
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preparing Permit Review Reports as a result of NOD and commitment letter resolutions between
EPA and the permitting authorities.
Report Pages 15-17: The report states that EPA's position is that permitting authorities could
obtain information on the contents of acceptable SBs by reviewing prior court case decisions and
EPA's response to public petitions. However, not all... officials in EPA Regions may be aware
of applicable court decisions.
EPA Comment: Because EPA responses are public documents, noticed in the FR and available on
EPA's web page, it seems an unnecessary effort to rewrite them in additional guidance documents.
In fact, citizen groups such as NYPIRG make use of our SB-related policy statements in their
lawsuits. The same objective could be accomplished more efficiently by promoting the reading of
pertinent documents, and by providing opportunities during conference calls to describe and
discuss these decisions, which the Agency currently does. This is explained in our
recommendation responses.
OfG Response:
We disagree with EPA over the reliance on petition responses for guidance. We believe the use of
petition responses in lieu of guidance is inefficient and results in duplicalive work being performed
by permitting officials. As shown in our report, the current situation has resulted in
inconsistencies among the four States we visited. We also noted that in one case, an EPA official
was unaware that a petition addressing SBs had been issued.
Also, States are reluctant to follow guidance that is not issued nationwide or through a rule. Thus,
in addition to the inefficiency noted above, lack of guidance may allow ineffective actions on key
permit provisions. In their response to our draft report regarding their SBs and the applicability
of the Region 5 guidance on SBs, Ohio EPA responded to us that the Region 5 memorandum dated
December 20, 2001 only included a list of desired elements and not required elements. They also
wrote "There is no national guidance, policy, or preamble documentation in either the Clean Air
Act or proposed and final versions of Part 70 supporting the SB elements listed in the EPA
memorandum. " We continue to believe that one document that provides these elements would
prevent these types of disagreements and better ensure consistency among the States and regions.
Report Pages 15-17: The report states that a memorandum from Region 5 to Ohio and a Region 9
petition response were the only EPA documents that provided specific guidance as to what
constitutes an adequate SB.
EPA Comment: This sentence is misleading, first, by referring to two documents as the only EPA
guidance documents, and second, by minimizing the importance of guidelines on the contents of
SBs, found in a number of EPA petition responses.
OIG Response:
The wording in the report was modified.
Report Pages 15-17: The report recommends issuing guidance (or a rule revision?), citing
concerns that the lack of nationwide guidance on the contents of SB results in SBs that differ from
state to state, and suggests that SB lacking EPA suggested elements are incomplete.
EPA Comment: As noted in EPA's responses to citizen petitions, EPA expects that "[e]lements
included in these reports may differ, depending on the type and complexity of the facility." EPA
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interprets that, in general, SB ought to contain, among other information, a list of anything that
deviates from a simple recitation of requirements, and in general should draw attention to items
that would be the highest priority for EPA and persons reviewing the permit, such as new
conditions. In its responses to petitions, EPA has also explained that there are circumstances when
information is not required, for example: when the simplicity of the source does not call for
additional detail to understand the legal and factual basis for the draft permit conditions, such as
national gas-fired turbines, where the norm is not to include additional monitoring for compliance
with the opacity standard. Also, in a response to a petition on the Seminole Road Municipal Solid
Waste Landfill. EPA stated that the regulation does not require that the SB contain the facility's
compliance history.
QIC Response:
We noted more inconsistencies in the elements of the SBs between the four States we reviewed
rather than differences among the types of facilities located within the States. In general, each of
the four States had their own formats for their SBs.
Report Page 21: The report states, in part, "EPA disagreed with monitoring concerns raised in
public petitions against the New York and Ohio permitting programs, stating that while they would
watch for individual problems in permits, overall the programs included adequate monitoring and
met the minimum requirements of 40 CFR part 70."
EPA Comment: The Region (and ultimately, the Administrator) did not always disagree with
monitoring issues raised in New York petitions against individual permits and, in fact, granted
such petitions in some cases.
QIC Response:
The sentence referenced above discusses petitions specific to overall Title Vprograms, not to
individual permits. However, the report was modified with a footnote to acknowledge that EPA
did not disagree with all monitoring issues raised in New York petitions against individual
permits.
Report Page 28:
EPA Comment: Please explain your concern about lack of completeness in Annual Compliance
certification, and please include a reference to the October 22, 1997 preamble to Part 70 revisions -
Compliance Certification Requirements (62 FR 54936) which allows the facility owner to cross-
reference the permit or previous reports to identify the various information elements required in a
certification. Also, the preamble states "This provision allows the actual certification to be a short,
concise compliance statement that is not a burden by restating detailed information that has already
been provided." Therefore, it has been determined that a short and concise compliance statement
meets minimum legal requirements.
OIG Response:
In the report, we noted that the short and concise compliance statements meet legal requirements
and made reference to the preamble to Part 70. However, we also note that not all permit terms
and conditions, such as the general terms and conditions, are specifically addressed in allACCs
throughout the country. In addition, some States require that the facilities in their State address
each monitoring, record keeping, and reporting requirement in their A CC. We believe that the
guidance would be useful in avoiding inconsistencies that are now occurring nationwide.
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Report Page 37: OIG states that Ohio committed to issuing SB guidance, but the OIG saw no
evidence that this was accomplished.
EPAComment: Ohio's SB guidance is part of the SB form which was revised as a result of the
commitment letter.
OIGResponse:
Wording was changed on page 46 to indicate that this issue was not completely resolved because
there is still an issue with SB guidance.
Report Pages 39.40:
EPA Comment: In the discussion on program evaluations, the OIG made no distinction about the
style, content or format of written reports between different Regions or how that may play into
timelines for completion. At least one Region has taken a position that it will create a report that
accurately reflects not only the Regional view of their State and Local air programs but also
reflects the State and Local opinion of their program. To that end, the Region provides the State or
Local agency the opportunity to comment on the draft Regional report, just as the OIG provides
EPA the opportunity to comment on its draft reports. Regions spend a significant amount of time
preparing the reports in the belief that a well-conducted evaluation will serve as an appropriate
baseline and serve as a blueprint between EPA and the State/Local agencies with respect to
targeting areas on which to focus the Agency's attention. The Regions have received very positive
feedback to date from the states evaluated and have committed to develop an on-going evaluation
process that will continue after the initial evaluations. Region 4 requests that the report
acknowledge this.
OIG Response:
We remain concerned about the slow completion rate of program evaluation reports. However,
the report was revised to include some of the information provided in the comment above as
reasons why the reports may take longer to complete than originally anticipated.
Report Pages 40-42:
EPA Comment: This report should recognize that EPA does take steps to address a citizen's
petition well before the Agency issues a final determination. In many cases, Regional Offices
work as a mediator between the state permitting authority and the concerned citizen or citizens'
group. Sometimes, as a result of a Region's efforts, a State is willing to revise a permit before
receiving an official EPA determination. Although our information is anecdotal, it appears that
open communication between involved parties has helped facilitate resolution in some cases. Very
few citizens' groups have actually followed through and filed lawsuits involving untimely
responses to petitions.
OIG Response:
While some regional offices may have facilitated informal communications between permitting
authorities and petitioners, the delay, or absence, of official EPA responses to petitions has also
continued. Further, although relatively few lawsuits have been "actually followed through and
filed " against EPA for untimely petition responses, we believe that the fact that such lawsuits have
been filed at all serves as an indication that the response process needs improvement.
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Report Page 41: The report states that "Additionally, a key official at OECA indicated that
responding to public petitions is not a high priority within EPA."
EPA Comment: Responding to public petitions is a high priority within some Regions, as
evidenced by the number of staff committed to the effort. For example, there are 5 regional staff
attorneys who spend at least part of their time reviewing title V petitions and there is one GS-15
attorney supervising this effort who spends approximately 75 percent of her time overseeing the
legal review of the title V petitions submitted to the Region.
OIG Response:
While responding to public petitions may be a high priority within some EPA regions, the overall
response rates, as well as interviews with EPA officials, indicate that petition response is not a
high priority within EPA as a whole.
Report Page 42:
EPA Comment: The EPA has prepared a draft Federal Register notice which identifies resolutions
to the remaining Notice of Deficiency issues in Texas. Region 6 expects the proposal to be
published in the spring of 2005.
Report Pages 42. 43: The report states on page 42 "However, NOD deficiencies remain in Texas,
Hawaii, and Wisconsin..." and on page 43 "NOD issues have been resolved with all States except
for Texas, Hawaii, and Wisconsin...".
EPA Comment: Please update the report to reflect that State of Hawaii has corrected all of the
deficiencies identified in the NOD. Under the procedures outlined in 40 CFR 70.10(b), the State
had 18 months to correct the deficiencies identified in the NOD. Working closely with the EPA,
Hawaii adopted regulations that addressed all of the identified deficiencies. The adopted
regulations were signed by the Governor of Hawaii on November 4,2003 and became effective on
November 14,2003. All of the deficiencies have been corrected by the State and all that remains
to be done is for Region 9 to issue a FR notice proposing to approve Hawaii's actions. Since the
State's program has been revised to correct all of the deficiencies in accordance with 40 CFR
70.10(b), Region 9 believes that the references to the State of Hawaii should be removed from the
two sentences listed above.
OIG Response:
This information has been noted in the report. However, we do not consider the NOD to be
resolved until a final FR Notice has been issued. Also, as noted in the Agency's response, EPA
Region 9 has not yet issued its proposal to approve the State's actions and allowed an opportunity
for public comment on the proposal. A modification to the report was made to change the effective
date of the regulation to November 14, 2003.
Tables 2-1.2-3 and 2-8: These tables show permitting authorities identified by the Regions as
having problems with clarity, monitoring and practical enforceability
EPA Comment. The tables should be clarified either in the title or in the footnotes as examples
offered by the Regions and not necessarily an exhaustive list of programs or issues. These three
tables group individual permitting authority issues by EPA Region. It is difficult to discern
whether certain issues apply to only one permitting authority, or whether they apply to all
permitting authorities listed in that Region. It would be clearer if the table included distinct
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rows for each permitting authority.
OIG Response:
We revised the table titles to clarify that the permit clarity, monitoring, and practical
enforceability problems identified by the regions are examples.
Table 2-3: Monitoring problems in Title V permits identified by regions.
EPA Comment: Indiana is noted as having a lack of sufficient periodic monitoring
requirements. This should be removed as an issue for Indiana. Although Region 5 noted to the
OIG that it had found some monitoring issues in permit reviews, the Region did not identify any
periodic monitoring concerns, and noted to OIG that monitoring for most units is adequate.
Minnesota is noted as having inadequate periodic monitoring. This is an overly broad
conclusion and should be removed. Region 5 noted to the OIG that, in the past, some Minnesota
permits have contained inadequate periodic monitoring. However, this was not considered a
significant problem in their Title V program. Currently, the Region has not found this to be a
prevalent issue in Minnesota Title V permits.
OIG Response:
The paragraph leading into Table 2-3 acknowledges that regions believe the majority of
permitting authorities include adequate monitoring provisions in their permits. However, we
believe it is important to identify the types of problems that have been found through region
permit reviews and oversight. To address Region 5's concerns, we deleted the reference to
"periodic" for Indiana, and revised the table to include the phrase "in some permits. " We also
revised the table to include the phrase "in some permits "for Minnesota. We believe this should
clarify to the reader that the problems are not widespread within these States.
Table 2-8: Practical enforceability problems identified by EPA regions.
EPA Comment: Indiana is identified as needing anti-credible evidence (ACE) buster language in
permits. This issue has been resolved and should be removed from the table. Indiana now
includes an ACE buster language condition in each permit.
Michigan is identified as lacking Federal enforceability. Although Region 5 did note this in
its talking points to the OIG, there was no basis for this statement and it should be removed.
Region 5's talking points to the OIG note that, in general, Michigan's permits are practically
enforceable.
OIG Response:
We revised Table 2-8 to include the updated information on Indiana. A footnote clarifies that
this was a prior problem that has been resolved, according to the Region. Because EPA Region
5 indicated that their description of Michigan permits as lacking Federal enforceability was an
error, we removed Michigan from the table.
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OIG Recommendations and EPA Responses
Recommendation 2-1. Develop and issue guidance on annual compliance certification content
which requires responsible officials to certify compliance with all applicable terms and
conditions of the permit
Response: Three Regions agree with the recommendation to prepare guidance and a fourth
would also agree if the resulting guidance were properly focused and specific in nature. A fifth
Region noted that some States cannot go beyond EPA rules and therefore, if anything is needed,
it must be done by rulemaking. They did not express an opinion on the appropriateness of
rulemaking on this issue.
OAR disagrees with the recommendation that rulemaking guidance is needed to
clarify that responsible officials must certify compliance with all applicable terms and conditions
of the permit because the rules already contain an equivalent provision that requires the
identification of each permit deviation - sources experiencing deviations from their permit terms
must certify intermittent compliance. 40 CFR § 70.6 (c)(5) directly requires information as
follows: permit terms (which encompass the Clean Air Act requirements and their required
methods), other means (for example, compliance determination methods used voluntarily), the
compliance status (including identification of permit deviations) and other facts required by the
permitting authority. OAR agrees that, should States develop forms, these must be consistent
with the rules; however, variations in format from State to State are expected due to the
flexibility given in the rules - which allows the required information to be cross referenced from
the permit or previous reports. Issuing new guidance at this late date may undercut existing State
programs, especially those that are stricter than requirements in guidance. There is little or no
evidence of a fundamental problem with annual compliance certifications. Please elaborate on
the widespread problem that would be corrected with national guidance.
OIG Response:
Based on our discussions with and information obtained from EPA regional offices and many
outside stakeholders, and our examination ofACCs in four states, we continue to believe that
EPA national guidance or a rule on ACC content should be issued to maximize the effectiveness
of the Title V program. Region and State officials indicated that as a result of Title V, they have
seen greater compliance awareness by permittees which may be due, in large part, to
compliance certification requirements. As reported in Chapter 4, two States reported an
increased use of self-audits, increased use of environmental systems, increased resources
devoted to environmental control systems, increased resources devoted to compliance
monitoring, and increased awareness of compliance obligations - all as a result ofACCs.
Consequently, we continue to believe thatACCs, when used properly, are an effective tool for
improved compliance and that permittees should be required to certify to each obligation
created by a permit term or condition.
EPA regions indicated that there is a disparity in ACC content across the Nation. We noted that
one State we visited significantly improved their ACC completeness when asked to do so by EPA
regional officials, while another State we visited required that their permittees certify only to
overall compliance with the permit and to identify any deviations. The differences in State
requirements on ACC content may also place increased pressure on those States that have more
comprehensive ACCs to reduce their reporting requirements. For example, we were told by one
Region that one of their States is being pressured by industry to change their ACC form to one
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which would require less content. We believe the effectiveness ofACCs would be reduced if
ACC comprehensiveness were lessened due to pressures from industry on a nationwide basis.
Recommendation 2-2. Issue the draft rule regarding intermittent versus continuous
monitoring as it relates to annual compliance certifications.
Response: EPA agrees with this recommendation.
Recommendation 2-3. Develop nationwide guidance on the contents of statements of basis
(SB) which includes discussions of monitoring, operational requirements, regulatory
applicability determinations, explanations of any conditions from previously issued permits
that are not being transferred to the Title y permit, discussions of streamlining requirements,
and other factual information, including a listing of prior Title y permits issued to the same
applicant at the plant, attainment status, and construction, permitting, and compliance
history of the plant.
Response: One Region agrees with the recommendation and two others would agree if the
resulting guidance were properly focused and specific in nature. A fourth Region would prefer to
point to model SBs instead of guidance.
OAR disagrees with the recommendation that additional guidance is needed to
improve the adequacy of SBs. OAR believes that its position, as stated in EPA's responses to
citizen petitions on state programs or permits60, provides reasonable guidelines as to the types of
information that should be in SBs while retaining the flexibility needed for state permitting
authorities to prepare these documents without imposing an unnecessary paperwork burden.
Furthermore, part 71 permits as written by our Regional offices provide examples of well
documented and thorough SBs (for example SBs for Devon SFS Operating, Inc. and Red Cedar
Gathering Company). The ongoing title V program reviews include elements for assessing
states' general practices regarding preparation of SBs, including whether the permitting authority
provides guidance to its permit writers and how the permitting authority ensures that guidelines
are followed when preparing SBs. To the extent that the Regions make a determination that
prevalent inadequacies in SBs result in permits not in compliance with the approved program
rules, EPA will consider issuing NOD's in accordance with section 502(i) of the CAA and 40
CFR section 70.10(b). Please elaborate on the widespread problem that would be corrected with
national guidance.
OAR recognizes that as EPA officials deal with operating permits implementation
issues - including the adequacy of SBs - they must be familiar with EPA's position on these
issues. Although petition responses are public documents, are widely available, and are
commonly used by citizen groups, OAR recognizes that additional efforts are needed to bring
awareness of the issues addressed in these documents within EPA. The EPA has started
promoting these documents internally by compiling lists of all the issues addressed in EPA
EPA has described the necessary and suggested components of a statement of basis in numerous
previously issued title V orders responding to citizens' veto petitions. See, e.g., In the Matter of Consolidated
Edison Co. Of NY, Inc. Ravenswood Steam Plant, Petition No. Jl-2001-08, at pages 39-45 (Sept. 30, 2003); In the
Matter of Port Hudson Operation Georgia Pacific, Petition No. 6-03-01, at pages 37-40 (May 9, 2003); In the Matter
of Doe Run Company Buick Mill and Mine, Petition Number Vll-1999-001, at pages 24-26 (July 31, 2002); In the
Matter of Los Medanos Energy Center, at pages 9-13 (May 24, 2004).
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responses together with the references to the particular document(s) where the issue is discussed.
The EPA headquarters will consult with the regions on additional efforts needed to disseminate
this information and will prepare and implement a plan for this purpose.
QIC response:
We believe that complete SBs are an effective document to aid the regulatory community, other
key stakeholders, and the general public in the review and understanding of Title V permits. As
noted in their response to the draft report, OAR believes that the petition responses and regional
guidance have provided sufficient guidance. However, as noted in the report, 8 of the 10 EPA
regions told us that inadequate or missing SBs were a problem in some of their State or local
permitting authorities. Also, we noted significant disparities in SBs among the four States we
visited. Further, we were informed that the regions have previously requested national guidance
from EPA on SBs. We do not believe regional guidance is sufficient because one region may be
required to use guidance for which they did not have an opportunity to provide input. While we
recognize that petition responses can be used in lieu of guidance, we also believe that petition
responses are an inefficient and ineffective method for disseminating guidance. For example, we
noted one instance in which a key regional office official was unaware of another region's
petition response that provided some guidance on SBs. The use of petition responses as a
primary source of guidance requires each permitting official to independently research and
interpret petition responses to seek answers to SB issues. Further, some permitting authorities
are precluded from relying on EPA guidance and can only rely on Federal rules. We believe it
would be more efficient for the regions to correct SB inadequacies through national guidance or
a Federal rule on SB content.
Recommendation 2-4. Through its periodic grant discussions with EPA regions and State and
local permitting authorities, emphasize improvements in Title Vpermit clarity by minimizing
using incorporation by reference (IBR), clearly citing applicable underlying regulations,
emphasizing conciseness in permit format, and using statements of basis to identify and
explain permit decisions related to streamlining.
Response: EPA Headquarters and the Regions disagree with the recommendation. Funding for
title V programs comes from permit fees and section 105 grant monies cannot be applied. It is
inappropriate to raise issues related to improving title V permit clarity in the context of grant
funding.
QIC Response:
We removed the reference to "grant" discussions from the recommendation, but we continue to
believe that EPA should emphasize such improvements through its periodic Title V discussions
with State and local agencies. Additionally, we believe EPA regions could emphasize such
improvements during their evaluations of permitting authorities' Title V programs.
Recommendation 2-5. Expeditiously follow through on its commitment in the January 2004
umbrella monitoring rule to develop periodic monitoring guidance.
Response: EPA agrees with the recommendation. Consistent with the umbrella monitoring rule,
we are developing a notice and comment rulemaking to provide guidance on periodic monitoring
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required under the provisions of 40 CFR §§70.3 (a)(3)OXB) and 71.3 (a)(3)(iXB). This rule will
address when the requirements for periodic monitoring in title V rules are triggered to improve
monitoring in underlying emission standards and rules, and when it is triggered, how to create
periodic monitoring in the permit. We hope to propose this rule in early 2005.
Recommendation 2-6. Develop nationwide guidance designed to help EPA regional offices
and State and local permitting authorities in preventing practical enforceabittty problems in
Title Vpermits.
Response: The EPA agrees that national guidance is an effective way to provide instruction to
EPA regional offices and State and local permitting authorities, and over the years EPA has
generated numerous guidance documents addressing practical enforceability. However, it is
EPA's view that practical enforceability problems arise in individual permits and are not so
ubiquitous across States to require the development of additional national guidance.
Nonetheless, EPA believes that the issues identified by the OIG can, and should, be addressed
through both training and more effective oversight. Four Regions disagree with the
recommendation, feeling that concerns about practical enforceability are best addressed in the
New Source Review program, or that national guidance already exists and training is a more
effective improvement. One Region agrees with the recommendation if the guidance appears in
the form of a rulemaking on Potential to Emit.
OIG Response:
We agree that the goal of preventing practical enforceability problems could be addressed
through effective, periodic training and more effective oversight as opposed to guidance. We
revised the recommendation to reflect this approach.
Recommendation 2-7. Establish and implement apian to review the adequacy of monitoring
provisions in SIPs.
Response: EPA agrees with the recommendation. Consistent with the umbrella monitoring rule,
we are developing an advance notice of proposed rulemaking to ask for comment to identify
inadequate monitoring in certain underlying emission standards and rules, including SIP rules,
and to ask for input on the best methods to correct such monitoring, such as through rulemaking
or other similar mechanisms. As part of this notice, we hope to provide a list of example patterns
of inadequate monitoring that may be found in such standards and rules. Although we have not
made up our mind as to next steps, it is likely that if the outcome of this process demonstrates a
need, we would initiate one or more future notice and comment rulemakings to correct any
inadequate monitoring we may determine to exist in such rules. We hope to issue the notice in
early 2005.
Recommendation 2-8. Ensure that State and local permitting authorities consistently apply
periodic monitoring provisions to all applicable permit requirements, and ensure that
permitting authorities use AP-42 emissions factors in permits only after other more reliable
methods for determining compliance have been considered.
Response: EPA Headquarters and the Regions disagree with the recommendation. It is
important that the best information be used by States in specifying compliance determination
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methods. Sometimes AP-42 emission factors are the best that is available. Two Regions
cautioned that limits must be in place to avoid excessive oversight of all permits by EPA. This
issue should be addressed through training.
OIG Response:
Our recommendation states that AP-42 emissions factors should be used "only after other more
reliable methods for determining compliance have been considered." We do not recommend
that AP-42 factors never be used. We agree that the objectives of our recommendation could be
accomplished through effective, periodic training.
Recommendation 3-1. Promulgate the draft order of sanctions rule which provides notice to
State and local agencies, as well as the public, regarding the actions that will be taken when
Notices of Deficiencies are not timely resolved by State and local Tide Vpermitting
authorities.
Response: EPA agrees with the recommendation. As noted in the OIG report, in calendar years
2001 and 2002, EPA issued 10 NODs to permitting authorities to address regulatory problems in
their title V programs. EPA also received 23 commitment letters from State and local permitting
agencies during this period to address implementation problems in their title V programs. States
have resolved the majority of issues identified in NODs and commitment letters, with remaining
commitment letter issues unresolved in Ohio. Hawaii adopted regulations that addressed all of
the identified deficiencies. All that remains to be done is for Region 9 to issue a Federal Register
notice proposing to approve Hawaii's actions. Region 6 has prepared a draft Federal Register
notice which identifies resolutions to the remaining NOD issues in Texas, and the Region
expects the proposal to be published in the spring of 2005. While we agree that promulgating the
Order of Sanctions rule is our goal, it is currently not a priority for the agency.
OIG Response:
In light of the fact that OAQPS identified the need for the rule in 2002 in connection with our
report titled, "EPA and State Progress in Issuing Title VPermits, Report No. 2002-P-00008, "
issued on March 29, 2002, we believe this rule should be issued expeditiously.
Recommendation 3-2. Issue the four draft Title y program guidance and rules developed by
OAQPS and submitted for approval in 2002.
Response: With the exception of the Order of Sanctions rule, EPA disagrees with these
recommendations. Sufficient time has passed for the issues to reach resolution through other
means or are no longer of interest to State and local agencies. Two Regions agree with the
recommendation (although one considers these issues outdated). A third Region noted that some
States cannot go beyond EPA rules and therefore, if anything is needed, it must be done by
rulemaking. They did not express an opinion on the appropriateness of rulemaking on this issue.
Order of Sanctions Rule - See previous response to Recommendation 3-1 regarding the Order of
Sanctions rule.
Permit Renewal Application Forms Guidance - This guidance is no longer needed because
Region 4 has approved a rule in Kentucky that allows for streamlining of renewal applications.
This provides guidance that can be applied nationally.
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Annual .Compliance Certifications Guidance - The original draft guidance as prepared over two
years ago is now out of date and was not reviewed by EPA management due to competing
priorities with New Source Review. Were such guidance to be prepared now, it would need to
come in the form of a notice-and-comment rulemaking. There are no plans at present to
undertake a rulemaking on this issue.
Processing Program Revisions Guidance - The lack of any recent requests for guidance on
processing program revisions suggests that this guidance is not needed at this time.
OIG Response:
We agree with the Agency that the Order of Sanctions rule should be issued. We disagree with
the Agency on ACC content issues in that there is a continuing need for ACC consistency and
completeness on a nationwide basis and that this need could be significantly addressed by
issuing national guidance or a Federal rule, as appropriate. We agree that the guidance for
permit renewal application forms and processing program revisions may no longer be needed
and have substantially revised and consolidated our recommendation to reflect these
considerations.
Recommendation 3-3. Provide a document guide on the EPA public website which would
assist the public in identifying and locating published EPA statements on key Title Vprogram
issues.
Response: EPA disagrees with the recommendation. The designated repository for OAR policy
and guidance (where key title V program issue documents are stored) is the OAQPS Technology
Transfer Network (TTN). The TTN is intentionally limited to documents originating from and
signed by OAR officials, and cannot include Regional materials. Regional materials are easily
accessible, however, by linking to Region 7s database. One Region agrees with the
recommendation and one Region feels this link already exists and a new one is not needed.
OIG Response:
As indicated in EPA's response above, Title V guidance can be found on both the OAQPS TTN
and Region 7's website. We are not suggesting that the databases be merged or that a new
database be created. Rather, we are suggesting a more user-friendly tool to aid permitting
officials and the public alike in locating EPA positions on key Title V issues. Currently, in order
to identify all EPA written policy positions on an issue, one must use the search function to
review both databases. As discussed in Chapter 3 of this report, OAQPS staff provided OIG
with a copy of a document they prepared summarizing the Agency's position on a number of key
issues and identifying references where the specific positions and supporting information can be
found. At a minimum, we believe this document should be made available to region and State
and local permitting staff. We also believe it would be beneficial to make the document
publically available on EPA's website, possibly on the public input page of the Operating
Permits website, or elsewhere, as determined appropriate.
Recommendation 3-4. In conjunction with EPA Regional Administrators, jointly develop a
strategy to ensure that EPA regional oversight and review of Title Vpermit adequacy
continues beyond the scheduled program evaluations. EPA regional review of permits should
include an analysis of clarity-related issues and appropriate inclusion of CAM and MACT
provisions in any permit renewals.
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Response: EPA Headquarters and the Regions agree that long-term oversight of title V
implementation is needed. Using the current four-year analysis of title V programs as a baseline,
OAR and the Regions will develop five-year plans that combine oversight with permit review
and audits to ensure continued proper implementation. This would include a written strategy and
annual reports to OAQPS.
Recommendation 3-5. In conjunction with EPA Regional Administrators, jointly coordinate
and streamline the review and response process for Title V public petitions to meet the
response requirements specified in the CAA.
Response: There are many case-specific reasons why permit responses can exceed 60 days.
EPA Headquarters and the Regions will work internally to devise a procedure that will reduce
response times, will implement that procedure, and then will track the impact on shortening the
process. Permits are often moving targets, which can delay the response process.
Recommendation 4-1. Consider forming a stakeholder advisory group, possibly in conjunction
with the CAA Advisory Committee, to solicit input on needed Title V guidance and rules from
selected State and local agencies, and industries or industry associations, environmental
groups and other interested stakeholders.
Response: EPA agrees with the recommendation. A stakeholder group has been formed. The
stated purpose of the Task Force on Title V Implementation Experience is to "report to the
[Clean Air Act Advisory] committee on the experiences of stakeholders who have been working
in the title V permitting arena. The report should reflect the perspectives of all the stakeholder
groups, and should reflect an effort to answer two questions: (1) How well is the title V program
performing and (2) What elements of the program are working well/poorly?" The Task Force
may also make recommendations to EPA based on its findings.
Recommendation 4-2. Establish and implement an EPA-wide database to track improvements
made in Title Vpermits by permitting authorities.
Response: EPA Headquarters and the Regions disagree with this recommendation. The purpose
of a permit-improvement database is not clear from the DIG report. Ninety-four percent of the
title V sources nationally already have received their permits. Most improvements have already
happened, due to comments and corrections from permittees, the public and EPA. We agree that
there is room for program improvement, but an EPA-wide database for tracking permit
improvements will not accomplish this. Future program audits, permit reviews, and the Title V
Task Force will help EPA identify areas that still need improvement.
QIC Response:
After further consideration, we removed this recommendation from the report. EPA
Headquarters and Regions agreement to continue long-term oversight of Title V implementation,
including permit reviews and comprehensive Title V program reviews, should provide sufficient
information to identify Title V areas still in need of improvement.
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Appendix G
Texas Response to Draft Report and OIG Evaluation
Using Incorporation by Reference (IBR):
TCEQ Response: OIG's concerns with the use of IBR rest with the extent to which
specific applicable requirements maybe identified from the citations.
In 6 of the 10 Texas permits reviewed, however, the applicable
requirements were found to be "reasonably discernible" (i.e., the
regulatory citations were specific enough to provide identification of
the specifically applicable requirements). In general, for Texas' SOP
Title V permits (both audit sample and permit population at large), the
exact citation of the applicable regulation is provided. In atypical
cases where the specific citation is not provided, permit holders are
required to provide this level of detail with their submittals of
compliance certification or deviation reports.
The form, content and mechanism of GOP authorizations are approved
elements of the Texas Title V program. The use of IBR in GOP is
consistent with this approval. Sources authorized by GOP typically
have few emission units, and reviewing their requirements does not
require navigation of multiple (i.e., '76 to 108') pages of applicable
requirements tables. The review of these tables is also facilitated by an
index numbering system included in the design of the GOP. Although
the issued GOP authorization itself does not list actual emission units,
all emission units to be covered by the GOP must be listed in the
application.
The suggested use of the narrative text alternative apparently does not
consider the implications of this approach. Narrative text requirement
summaries would increase the volume of all permits in which it was
applied. For most of our SOP permits, the desired benefit of direct
access to applicable requirements would be negated by unmanageable
permit size that would result from using narrative text summaries.
As OIG's own findings about IBR indicate, this practice has been
litigated and upheld by the August 15, 2003 ruling from the United
States 5th Circuit Court of Appeals. The Court found that nothing in
the Federal Clean Air Act prohibits this practice; APD agrees with
OIG's observation that IBR does not therefore violate any Title V
requirement. Additionally, EPA's White Paper No.2 supports IBR.
The white paper specifically describes the practice of citing and cross-
referencing information in permits if the information is readily
available to the permitting agency and the public.
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OIG Response:
We agree that general operating permits are approved elements of the Texas Title Vprogram.
However, we found reviewing these permits to be challenging from an outside observer
standpoint. The Texas general operating permits for oil and gas sources we reviewed consisted
of between 76 and 108 pages of applicable requirements tables - all with extensive IBR. Even if
sources authorized by general operating permit have few emissions units, and can be identified
through an indexing system, a reviewer must engage in several extra steps in order to determine
what requirements a source is subject to.
We acknowledge that incorporating narrative text in place of IBR would increase the volume of
the permits. However, in most cases, we do not believe that including narrative text results in
unmanageable permit size. The three other States we reviewed used narrative text to a
significant extent. In most cases, the use of narrative text helped provide context and increased
understanding of the source. We did not find that it hampered direct access to the applicable
requirements.
EPA's White Paper No. 2 states that in general, information may be cited or cross-referenced if
the information is readily available to the permitting agency and the public. It also states that
the citations and references must be clear and unambiguous and enforceable from a practical
standpoint. As noted in our report, we do not dispute the legality of the practice of IBR.
However, we do believe that the extensive use of IBR with little or no narrative description
negatively affects the clarity of the permit, particularly for the public.
How Well Permits Reflected the Underlying Regulations:
TCEQ Response:
Comparison of text summaries to underlying regulations is a
reasonable indicator of a permit's fidelity to its regulatory basis, but
only for those permitting programs that use this approach. While we
generally agree with OIG's observation (i.e., available narrative
showed no discrepancies from underlying regulations), we maintain
that the direct regulatory citations provided by IBR result in greater
overall fidelity between permits and their underlying requirements
(i.e., much closer 'matching', with minimized possibility of re-
statement errors).
Using Permit Shields and Streamlining:
TCEQ Response:
APD believes the use of its permit shield mechanism is sound, as
supported by OIG's overall findings in this area. The exception that a
permit shield IBR citation did not provide sufficient information to
conclude whether the shield was appropriately applied , however, is
attributable to an administrative matter. At the time the subject permit
was issued, the permit shield citation and its keyword reference to the
subject emission unit (i.e., process heater) were consistent with the
applicable definition in the pertinent regulation (Ch. 117). Since the
permit was issued, however, Ch. 117 has changed. The permit shield
citation and keyword reference were not updated when the regulation
changed, and the location of the applicable definition in the regulation
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text is no longer consistent with the specific citation in the shield.
When checking the regulatory text to which the citation refers, OIG
staff apparently consulted the current version of Ch. 117. In this
version, the same-numbered citation now holds the definition of
another concept, unrelated to process heaters. OIG concluded from
these observations that it was unable to determine whether the permit
shield was correctly applied to the subject emission unit.
APD believes there is sufficient information provided by the permit
shield's keyword reference and regulatory citation, and in the initial
and current definitions of "process heater", with which to determine
that the permit shield is appropriately applied to the subject emission
unit. For consistency of practice and format with more recently issued
permits, and to eliminate the potential for the regulatory tracking
difficulties described above, APD will likely strike altogether the
specific permit shield regulatory citation when the permit is renewed
(in newer permits, only brief keyword references to the subject
emission unit and applicable requirements are provided in the 'basis of
determination' column of the permit shield summary).
OIG Response:
We revised the report and added a footnote to reflect the explanation provided above.
Overall Permit Claritv:
TCEQ Response:
Statements of Basis:
TCEQ Response:
As previously indicated (see response to "Use of IBR" findings), APD
has considered this concern relative to those resulting from the use of
narrative text summaries (i.e., permit volume). APD believes the IBR
approach offers a better solution to our obligation to maximize
access and fidelity to underlying regulatory requirements.
APD is in general agreement with this assessment (i.e., that SB's are
improved replacements for technical summaries. More specific
comments on OIG's SB observations in Section 5 are provided in that
portion of the document).
Provisions for Periodic Monitoring:
TCEQ Response: APD is in general agreement with this assessment.
Compliance Assurance Monitoring:
TCEQ Response: APD is in general agreement with this assessment.
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Gap-filling Underlying State/Federal Regulations:
TCEQ Response: APD is in genera! agreement with this assessment,
Surrogate Monitoring:
TCEQ Response: APD is in general agreement with this assessment.
Monitoring and Reporting Requirements:
TCEQ Response: We infer from the data in Table 2-6 that the sufficiency issues in the 7
indicated permits are those described in the foregoing text (i.e.,
monitoring, IBR, GOP). In rule changes effective December 2002,
APD committed to include periodic monitoring in permits issued after
this date, for those whose underlying state and federal requirements
did not otherwise require monitoring or specify monitoring
frequencies. Of the 4 audited permits that were issued after this date, 2
contain PM provisions and the other 2 specify monitoring
requirements as included in their applicable state and/or federal
regulations. 6 of the 10 audited permits were issued prior to the
commitment date for inclusion of PM. The required updates will be
evaluated and implemented when the permits are renewed (SOP), or
when the overall GOP is revised (GOP).
The use of IBR identifies requirements as monitoring or reporting in
the applicable requirements summary. The use of GOP, as well as the
form and content of this mechanism, are approved elements of our
Title V program; the use of IBR in both SOP and GOP is consistent
with this approval.
Annual Compliance Certifications:
TCEQ Response: OIG observes that "...differences...were related to... whether the
facilities certified each permit term and condition or just reported
deviations." This language might suggest that Texas requires only
reporting of deviations. While the Texas program does not require
"line-by-line certification" of terms and conditions, nor has it made
commitments to this effect, it clearly references the permit in question.
Also, the responsible official clearly states the applicants are certifying
to all terms and conditions of the permit with the exception of the
deviations reported. We suggest re-wording the referenced sentence to
avoid misunderstanding and/or mis-statement.
OIG Response:
We modified the wording on page 31 in the report to "The differences we found related to
whether the facilities certified compliance in the ACC with each permit term and condition or
whether the facilities simply certified compliance with the entire permit except for any identified
deviations."
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Practical Enforceability:
TCEQ Response:
In rule changes effective December 2002, APD committed to include
periodic monitoring in permits issued after this date, for those whose
underlying state and federal requirements did not otherwise require Of
the 4 audited permits that were issued after this date, 2 contain PM
provisions and the other 2 specify the monitoring requirements of their
applicable state and/or federal regulations, monitoring or specify
monitoring frequencies. 6 of the 10 audited permits were issued prior
to the commitment date for inclusion of PM; required updates will be
evaluated and implemented when the permits are renewed (SOP), or
when the overall GOP is revised (GOP).
GOP form and content are approved elements of the Texas program;
the use of IBR in both SOP and GOP is consistent with this approval.
Although the issued GOP authorization itself does not list actual
emission units, the enforceable application for this authorization must
include all emission units to be covered by the GOP.
Notices of Deficiency:
TCEQ Response:
O
Commitment Letters:
TCEQ Response:
In December 2003, TCEQ amended three of the newly numbered
sections of its emissions events rules to address concerns raised by
EPA in the NOD. These three sections have an expiration date of June
30,2005. These rule changes were submitted to EPA as revisions to
the Texas SIP. EPA has given verbal indications it will grant limited
approval for all of these rule changes, and approval is expected in
January 2005.
The substance of our response to the ACC issues referenced in this
section is provided in the responses to OIG's ACC findings of
Sections 2 and 5, and is not re-stated here. Regarding SB issues,
however, OIG's reference to "Chapter 2" is vague and potentially
confusing, especially when considering that "Chapter 2" was not
provided for review. Follow-up discussions with OIG staff indicated
the nature of these SB issues is related to consistency of SB content
across states and EPA regions, and the extent to which the SB
contained what OIG considers key elements. These issues are not
exclusively pertinent to Texas. It would be helpful for these references
to be clarified with specific identification and discussion of these
issues in this section, and for Texas to have the opportunity to review
and comment on this discussion.
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Review of Pre- and Post-Title V Permits:
TCEQ Response: Since rules governing NSR permitting are part of the Texas SIP, NSR
permit terms and conditions are fully enforceable. Further, APD
believes its NSR permit conditions contain adequate provisions for
periodic monitoring. In addition to technical summaries, and as
supported by OIG's Table 4-3 indicating availability of pre-Title V
authorizations for all audited Title V permits, APD provided all
available emission rate tables and special conditions of the current
NSR authorizations associated with the audited permits.
QIC Response:
We revised the report and added a footnote to Table 4-3 explaining that some pre-Title Vpermits
reviewed were NSR permits, and thus were federally enforceable. The numbers in the Table
columns still only reflect whether or not federal enforceability was explicitly stated on the face of
the permit. We deleted a footnote stating that Texas only provided technical summaries for the
pre-Title Vpermits to reflect that emissions rate tables and special conditions were also
provided.
Observations on Statements of Basis:
TECQ Response:
APD is in general agreement with this assessment. As described in
previous responses (Section 2 - Monitoring and Reporting; Practical
Enforceability), 2 of the 4 audited permits issued after December 2002
did not require addition of PM provisions. OIG's indirect observation
in this section (that 2 of the 4 SB's reviewed didnot provide the basis
of the PM decision) refers to the same 2 permits. The SB for these
permits did not include an explanation of the PM decision precisely for
the reason that PM was not required in these permits.
Observations on Annual Compliance Certifications:
TCEQ Response:
OIG observes that Texas has addressed the "material information"
issue as committed, but also immediately comments on the substance
of the ACC (completeness of the certification, as indicated with line-
by-line certification vs. certification by exception). The organization of
these comments suggests that Texas also committed to change its
method of certification and has yet to comply with this commitment.
Texas has in fact made no such commitment. The language of these
observations should clarity that the subject commitment was to
resolution of the 'material information' matter, separate from how
certification is handled.
OIG Response:
No changes were made in our report as we do not believe the report indicated that Texas agreed
to change their ACCs to require facilities to complete their ACCs with a line by line
certification.
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Appendix H
Ohio Response to Draft Report and OIG Evaluation
January 26, 2005
CERTIFIED MAIL
U.S. EPA
Attn: J Rick Beusse, Director for Program Evaluation, Air Quality Issues
Office of Inspector General, N283-01
Research Triangle Park, NC 27711
RE: Response to Excerpts from Draft Evaluation Report on Title V, Assignment No. 2003-
000339
Dear Mr. Beusse:
Thank you for the opportunity to review and comment on the Ohio portions of the draft
evaluation report on Title V. Ohio EPA believes that a thorough review of the federal Title V
permit program will lead to improvements in implementing a complex program and will provide
increased national consistency. We look forward to participating in any effort to make the Title V
program more efficient and effective. We also appreciated meeting with your review team and
believe they gained valuable information concerning the experience that Ohio brings to issues
associated with implementing 40 CFR Part 70 requirements. Following is a summary of our
comments based on our limited knowledge of the full program evaluation conclusions. These
comments are based on our review of the redacted draft report you supplied for comment.
Using Incorporation By Reference
Ohio EPA has no comments.
How Well Permits Reflected the Underlying Regulations
As with any large, complex program, the initial permits may not have contained the amount of
information that appeared in later permits. Ohio EPA appreciates recognition that
implementation issues can be worked out in a cooperative fashion with the U.S. EPA regional
staff. Ohio is following through with the commitment to cite underlying regulations as part of
any permit modification or renewal.
Using Permit Shields and Streamlining
Ohio EPA is not aware of any Part 70 provision requiring side-by-side comparisons of
requirements to justify which requirement is selected as the most stringent in cases where
streamlining is employed. SIP approved, rule-based requirements and SIP approved state best
available technology-requirements are good examples of where "streamlining" is used in Ohio
Title V permits. Ohio EPA does not believe there is a need to provide detailed side-by-side
comparisons of the requirements in the Statement of Basis (SB) because both requirements are
part of the federally approved SIP for Ohio. Thus, the basis for each requirement has already
undergone federal and public review, and needs no further justification regarding the selection of
the more stringent requirement. Further, there is no national guidance concerning the level or
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length of detail required in the SB; Ohio EPA provides additional comment on this related issue
below. Nevertheless, Ohio EPA does identify each requirement in the Title V permit that is more
stringent than the corresponding PTI term or SIP rule limit. This is indicated in the permit by
language such as "...The minimum overall control efficiency specified by this rule is less
stringent than the minimum overall control efficiency established pursuant to OAC rule 3745-31-
05(A)(3)." This is generally referred to as "subsuming" rather than "streamlining" in Ohio.
OIG Response:
We agree that there is no Part 70 provision requiring side-by-side comparisons to justify
streamlining. However, this useful practice is recommended in EPA's White Paper #2 and in
Region 3's Title VPermit Writers Tips.
Overall Permit Clarity
Ohio respectfully disagrees with the conclusion that Ohio permits lack clarity or that the use of
the phrase "upon request" or "if required" makes it unclear what conditions would trigger a
source to be tested. To state every condition which could trigger the requirement for a source to
undergo emission testing in an operating permit is unreasonable. As U.S. EPA is aware, most
determinations for these source test requirements are made on a site-specific basis. U.S. EPA has
not provided clear guidance or rule-based requirements concerning on-going testing frequency.
For example, most, if not all NSPS and NESHAPS categories only specify an initial compliance
determination. If it is U.S. EPA's desire to have certain types of operations tested on specified
frequencies, U.S. EPA should promulgate regulations to ensure that goal is achieved. Otherwise,
deference needs to be given to the permitting authority to determine when and if emission testing
should be required on a site and source-specific basis.
OIG Response:
We understand Ohio's position that stating every condition which could trigger emissions testing
may be unreasonable. We also acknowledge that, in the absence of clear guidelines on testing
frequency from EPA, State and local permitting authorities are left to make individual decisions.
However, from the perspective of an outside reviewer, particularly members of the public, such
language can appear vague and leave the reviewer unclear as to what would trigger source
testing.
Statement of Basis (SBs>
As stated in the draft report, Ohio EPA does question the overall efficacy of SBs, but we
continue to work with U.S. EPA on issues associated with the level of content and detail needed
in a SB. Ohio EPA believes that every Title V permit issued by the Agency, and every associated
SB, meets the requirements of the Part 70 rules. The Clean Air Act (including the preamble to
the Act) provides no details regarding what constitutes an adequate accounting of the legal and
factual basis for Title V permit terms and conditions. Further, the Part 70 SB program element
provides virtually no indication of the required focus, elements, or structure of the SB.
The focus of this section of the draft report is a letter from U.S. EPA Region 5 that describes
what they believe should be in a SB. However, the list produced by the Region does not have a
regulatory basis, and contains the information that Region V would like to see. Although Ohio
EPA recognizes that more information can be helpful, there needs to be a recognition that
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permitting authorities have limited resources and the focus of the effort needs to be in the
issuance of quality permits.
QIC Response:
We noted in the report that EPA has not issued a nationwide guidance document or a rule that
explains what constitutes an adequate SB. We have made a recommendation that EPA issue
guidance or a rule that specifies the elements of an adequate SB.
Monitoring Issues Identified In Reviewing State Permits (periodic monitoring; gap-filling;
surrogate monitoring: and clarity of many monitoring and reporting requirements to
determine compliance)
Provisions for Periodic Monitoring
Ohio EPA does not believe that commonly understood or well established permitting
practices need to be explained or detailed in either the permit or SB. For example, not
requiring monitoring for PM for inherently clean fuel burning operations should not have
to be explained in the permit or in the SB because the minor emissions associated with
such operations are widely and commonly understood by industry and the regulatory
community. One could question whether the public could readily ascertain why
monitoring is not required in such an instance, and conclude that explanation should be
provided. However, nothing in Part 70 or the Act requires permitting authorities to detail
the minutia of every decision the permitting authority makes in developing permit
requirements, especially those decisions that are consistent, and widely understood and
accepted in the environmental field. Further discussion of this issue is detailed below in
the OIG review SB discussion.
Gap-filling
Ohio EPA has no comments regarding gap-filling.
Surrogate Monitoring
Concerning surrogate monitoring, Ohio EPA does not have a ranking system for
surrogate monitoring. Ohio EPA is concerned that the list of types of surrogate
monitoring in Table 2-5 in conjunction with the preceding paragraph would lead a reader
to believe that the list is the ranking mentioned in the lead-in.
OIG Response:
Chapter 2 of our report cites a November 2001 Region 5 memorandum to Ohio EPA. We
include Region 5's statement that Ohio EPA ranks emissions factors, not surrogate monitoring.
We discuss the use of emissions factors as one type of surrogate monitoring or compliance
determination. Table 2-5 lists types of surrogate monitoring or compliance determination we
identified in the permits we reviewed in four States. We do not believe the table would lead a
reader to believe that the examples under Ohio comprise a ranking system.
Many Monitoring and Reporting Requirements To Determine Compliance
Ohio EPA has no comments regarding reporting requirements.
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Annual Compliance Certification
Ohio EPA has no comments regarding Annual Compliance Certifications.
Practical Enforceabilitv
Ohio EPA is concerned about the assertion that Ohio Title V permit terms are not practically
enforceable, particularly in light of the lack of U.S. EPA follow-through in providing regulatory
enforceability for certain types of on-going compliance demonstration tools. Especially
disappointing is the continued failure of reviewers to recognize how certified continuous opacity
monitoring systems can be used to help ensure ongoing compliance with visible particulate
emission limitations. There continues to be a push for traditional Method 9 observations at some
set frequency even though the data from a certified continuous opacity monitoring system does
not indicate a compliance problem and, therefore, the need for additional Method 9 observations.
U.S. EPA should step back and consider the rationale for and benefits of the continuous opacity
monitoring systems required by 40 CFR Part 51, Appendix P, 40 CFR Part 75, and the NSPS
provisions if they are going to continue to require the states to conduct Method 9 observations for
demonstrating compliance with most visible particulate emission limitations. In other instances
cited in Table 2-9, Ohio EPA uses manufacturers' specifications that are not developed or
provided by the manufacturer on a site-specific basis. To require the permitting authority to
determine a precise minimum frequency would be resource prohibitive. Compliance source
testing in conjunction with deviation reporting review by the permitting authority should provide
reasonable assurance of the practical enforceability of "manufacturers' specifications."
OIG Response:
We do not intend to assert in our report that Ohio Title Vpermit terms are not practically
enforceable. Our discussion of practical enforceability in Chapter 2 cites potential problems
and concerns that we believe could arise from the standpoint of an outside reviewer. As noted in
our report, officials in 8 out of 10 EPA regions told us that problems in some permits potentially
affect practical enforceability, and they identified problems in a number of permitting
authorities, including Ohio's use of vague permit language (see Table 2-8).
NOD and Commitment Letter Issues
Ohio EPA was the first state in Region 5 to complete the initial round of Title V permits. This
significant achievement was attained in spite of federal audits of the air program, challenges by
environmental organizations of the Title V program implementation in Ohio on the federal level,
and many appeals of the individual permits by industry at the state level.
Regarding SB guidance. Ohio EPA has a standing committee of Ohio EPA Central Office,
District Office, and local air agency permit and enforcement representatives that meet on a bi-
monthly basis (the P&E Committee). The required elements of the SB have been discussed in
P&E meetings. Additionally, the Ohio version of the SB was revised in 2003 to include detailed
instructions regarding the elements to be completed in the SB, including considerations that must
be taken into account by permit writers when developing the SB for a given permit. The SB
instructions were discussed during P&E meetings. Ohio considers these activities to meet the
commitment by the Director to train permit writers on SB. Ohio EPA does not agree with the
conclusion that these activities does not constitute "guidance" as "guidance" can take many
forms. Please see below for responses and/or comments regarding the OIG review "identified
deficiencies" in Ohio's SBs.
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OIG Response:
As staled in our report, we believe that Ohio SBs could be further improved by including certain
key elements considered advisable in the December 20, 2001, Region 5 memorandum. We
recognize that the Region 5 memorandum is not nationwide guidance or a rule. As noted above,
we have recommended that EPA provide nationwide guidance or a rule which specifies what
EPA considers to be sufficient SB content.
Results of OIG Review of Pre and Post Title V Permits
Ohio EPA is concerned that the message conveyed by a zero in item 5 of table 4-3 in this section
of the OIG report would lead a reader to conclude that the Ohio EPA does not adequately address
public participation. The fact that fliere have not been any objections by the public to an Ohio
permit does not have a negative reflection on public participation. Ohio EPA provides public
participation and information regarding appeal provisions for every permit in the cover letter
accompanying the permit. If a given permit was issued draft, a public notice is sent to the
newspaper of general circulation in the county where the facility is located. This notice provides
all instructions and contacts associated with public participation in the permitting process.
Additionally, the Ohio EPA produces a publication titled the 'Weekly Review' that identifies all
Agency actions taken each week. This publication also provides instructions regarding public
participation.
OIG Response:
Table 4-3 reflects whether or not specific elements, such as provisions for public participation,
were explicitly included inpre-Title Vpermits. It is intended, in part, to illustrate the
improvements that Title V has brought about over the old operating permits. This table is not a
comment on current public participation practices in the States. The zero in item 5 which Ohio
refers to is not related to current Title Vpermits or public participation efforts.
Observations on Statement of Basis and Annual Compliance Certifications
Ohio EPA is concerned that the draft OIG report would lead a reader to believe that the
December 20, 2001 EPA memorandum includes a list of required elements for each SB. The
memorandum is a enumeration of desired elements from one regional office of U.S. EPA. There
is no national guidance, policy, or preamble documentation in either the Clean Air Act or
proposed and final versions of Part 70 supporting the SB elements listed in the EPA
memorandum. Indicating in the OIG review that Ohio EPA did not include "...several key
elements identified as necessary in U.S. EPA Region 5's 2001 memorandum." provides no
constructive advancement regarding the SB issue. Further, indicating that "none of the SBs
[reviewed for Ohio] provided an adequate description of the facility, the manufacturing process
and the attainment status of the area where the facility is located." has no constructive value.
Inclusion of such statements in the OIG review, absent federal rules on minimum elements of the
SB, will only serve to fuel a mis-perception that Ohio SBs do not meet the minimum Part 70 and
Clean Air Act requirement of providing the legal and factual basis for each permit term to the
EPA and the public.
The requirement for permitting Agencies to provide a SB is a product of EPA requiring
permitting authorities to identify the legal and factual basis for each permit term (see 40 CFR
70.7(a)(5). There is virtually no discussion or explanation of the required contents of an
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"adequate" SB in either the draft or final preambles to Part 70. Ohio EPA respectfully requests
that all language in the DIG report that would lead a reader to conclude that Ohio EPA SBs do
not meet the minimum requirements of Part 70 be removed. Notwithstanding, Ohio EPA
appreciates that the OIG report does recognize that Ohio EPA has made changes to the SB in
response to input for U.S. EPA Region 5.
Additionally, Ohio EPA is not aware of ANY instance where a citizen has relied upon the SB to
understand, let alone, comment on any Ohio Title V permit. The vast majority of comments
received in the first round of Title V permits processed by Ohio EPA were made by U.S. EPA
staffer environmental organizations; both of which have a reasonable knowledge of issues
associated with air pollution control permitting. Further, if a. citizen were to review Ohio EPA
permits and the associated SBs, and they were to still have confusion or questions regarding
either document, Ohio EPA or local air agency staff are available to further explain the
documents, the source, or any other issue related to a given permit or facility. Taking permitting
authority staff time out to address specific instances of citizen confusion or questions is a much
more resource effective approach than developing voluminous SBs for an extremely limited
audience; particularly in light of the lack of federal rules, guidance, or policy with respect to SBs.
The content of Ohio EPA's SBs meet the legal requirements of Part 70. The format and content
of our SBs have been approved by U.S. EPA Region 5 and there has been no further national
guidance from U.S. EPA on this issue. Furthermore, it should be noted that the SBs are not
necessary to prepare a Title V permit. The SB is an informational tool only that is prepared for
U.S. EPA and the general public, hi processing close to 700 Title V permits, we received less
than 10 comments from citizens concerning SBs. To ask an agency to spend more time to expand
the content of the SB, would force valuable resources to be redirected from permit preparation to
SB preparation. We fail to see any positive benefit from such a reallocation of resources.
OIG Response:
Please note our responses on SBs provided above. We agree that an EPA nationwide guidance
document or rule has not been issued that would provide minimum SB requirements and we
have, therefore, recommended that EPA provide such guidance or rule. In our report, we
identified missing elements in Ohio SBs that were recommended in Region 5's guidance
document. We also identified missing SB elements for three other States and noted that there are
inconsistencies among the SBs prepared by each State. We believe that key content of SBs should
be consistent nationwide. We disagree with Ohio EPA on the value ofSbs, i. e., we believe that
they are very useful, necessary tools which aid in the understanding of Title Vpermits. In our
review of permits among three of the four States, the accompanying SBs were very effective aids
in our understanding and review of the permits. On page 75 of the report we noted Ohio EPA's
disagreement over SBs relative to the issue concerning the assertion of reallocation of
resources. We believe adequate SBs are necessary and that the resources necessary to construct
these SBs are justified. Further, the other three states' permit programs we reviewed with more
comprehensive SBs did not provide any indication of any significant resource reallocation
experiences, nor did we receive information that any other permitting authority had such
concerns.
In summary, Ohio EPA appreciates the opportunity to submit comments on the draft OIG Title
V evaluation report. We hope that the report is used by U.S. EPA and permitting authorities to
refine and enhance implementation of the Title V permit program, and assists the public in
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understanding the complex issues associated with implementing this very important federal
program.
Sincerely,
Bob Hodanbosi, Chief
Division of Air Pollution Control
cc: Mike Hopkins, DAPC/Permitting
Jim Orlemann, DAPC/Enforcement
Mike Ahem, DAPC/PIDM
Jeanne Mallett, OEPA Legal
Sam Portanova, U.S. EPA/Region 5
Genevieve Damico, U.S. EPA/Region 5
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Appendix I
Distribution
EPA Headquarters
Acting Administrator (1101 A)
Agency Followup Official (the CFO) (2710A)
Agency Followup Coordinator (2724A)
General Counsel, Office of General Counsel (4010A)
Associate Administrator for Congressional and Intergovernmental Relations (1301 A)
Associate Administrator for Public Affairs (1101A)
Assistant Administrator for Air and Radiation (6101 A)
Audit Followup Coordinator, Office of Air and Radiation (6102 A)
Acting Assistant Administrator for Enforcement and Compliance Assurance (2201 A)
Audit Followup Coordinator, Office of Enforcement and Compliance Assurance (2201 A)
Director, Office of Regional Operations (1108A)
Director, Office of Air Quality Planning and Standards (C404-04)
Deputy Director, Office of Air Quality Planning and Standards (C404-04)
Audit Liaison, Office of Air Quality Planning and Standards (C404-2)
Acting Deputy Assistant Administrator for Science (8105R)
Inspector General (2410)
EPA Regions
Regional Administrators
Regional Air Program Directors
Regional Audit Followup Coordinators
Regional Public Affairs Offices
State Permitting Authorities
New York
North Carolina
Ohio
Texas
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