Title V Task Force
Final Report to the
Clean Air Act Advisory
Committee
Title V Implementation Experience
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FINAL REPORT
TO THE CLEAN AIR ACT ADVISORY COMMITTEE ON
THE TITLE V IMPLEMENTATION EXPERIENCE
Prepared by:
The Title V Task Force
April 2006
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TABLE OF CONTENTS
Transmittal Letter
Executive Summary I
1. Introduction I
I. I Charge to the CAAAC Task Force On Title V
Implementation Experience I
1.2 Title V Task Force Members 2
1.3 Task Force Methodology 3
Selection of Task Force members 3
Public Testimony 3
Identification of Issue Areas 4
Process for Developing Each Issue Area 4
1.4 Report Structure 7
2. Purpose of Title V Operating Permit Program 8
3. Program Overview Issue Areas 10
3.1 Topic: Title V Program Benefits 10
Issue/Observation Description 10
Discussion Summary I I
Recommendations 12
Supporting Information 12
3.2 TOPIC: TITLE V PROGRAM COSTS 20
Issue/Observation Description 20
Discussion Summary 21
Recommendations 23
Supporting Information 23
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Table of Contents
(Continued)
4. Content Issues 34
4.1 Topic: Incorporation of Applicable Requirements 34
Issue/Observation Description 34
Testimony and Comments Received 34
Discussion 36
Recommendations 37
4.2 Topic: Insignificant Activities and Emission Units 41
Issue/Observation Description 41
Testimony and Comments Received 42
Task Force Discussion 43
Recommendations 44
4.3 Topic: Monitoring 47
Issue/Observation Description 47
Comments and Testimony Received 49
Task Force Discussion 50
Recommendations 57
Attachment: Additional Comments 59
4.4 Topic: Title I/Title V Interface 64
Issue/Observation Description 64
Supporting Information 64
Recommendations 71
4.5 Topic: New Substantive Requirements and Development of Operational
Restrictions 76
Issue/Observation Description 76
Supporting Information 76
Discussion 79
Recommendations 81
Attachment: Relevant Excerpts Re: New Substantive Requirements 82
4.6 Topic: Definitiveness of Permit 93
Issue/Observation Description 93
Legal Requirements 93
Comments Received 95
Other Information 95
Task Force Discussion 96
Recommendations 97
Attachment 98
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Table of Contents
(Continued)
4.7 Topic: Compliance Certification Forms 108
Issue/Observation Description 108
Supporting Information: Comments Received 109
Discussion: How much Information Should be Required in a Compliance
Certification? I 14
Recommendations I 18
Attachment: Exhibits A & B—Compliance Certification Forms 121
4.8 Topic: Startup, Shutdown, and Malfunction 136
Issue Observation/Description 136
Statutes/Regulations/Guidance 136
Summary of Comments Received 141
Task Force Discussion 141
Recommendations 144
Attachment 145
4.9 Topic: Compliance Schedules 150
Issue/Observation Description 150
Summary of Comments 152
Task Force Discussion 153
Attachment: Text of EPA Regulations 155
Attachment: Testimony and Comments Received 156
5. Process Issues 162
5.1 Topic: EPA Review of Proposed Permits 162
Issue/Observation Description 162
Discussion Summary 162
Recommendations 166
Supporting Information 167
5.2 Topic: Public Access to Documents 169
Issue Observation/Description 169
Supporting Information 170
Testimony and Comments Received 171
Discussion 172
Recommendations 178
5.3 Topic: Public Hearings 180
Issue Observation/Description: 180
Supporting Information: Comments Received 180
Task Force Discussion 183
Recommendations 188
Attachment: Relevant Testimony 190
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Table of Contents
(Continued)
5.4 Topic: Public Notice Throughout Process 200
Issue Observation/Description: 200
Summary of Comments Received 201
Discussion 203
Recommendations 210
Attachment: Relevant Testimony 214
5.5 Topic: Statement of Basis 225
Issue/Observation Description 225
Supporting Information 225
Testimony and Comments Received 227
Task Force Discussion 229
Recommendations 23 I
5.6 Topic: Responses to Public Comments on Draft Permits 234
Issue Observation/Description 234
Discussion 234
Recommendations 238
Attachment: Relevant Comments 241
5.7 Topic: Permit Re-Opening, Revisions and Operational Flexibility 243
Issue/Observation Description 243
Background 244
Supporting Information: Comments Received 247
Task Force Discussion 250
Recommendations 256
5.8 Topic: Appeals and Petitions 262
Issue/Observation Description 262
Supporting Information: Comments Received 262
Task Force Discussion 265
Recommendations 267
Appendix A: List of Speakers at Public Meetings on
Title V Implementation Experience
Appendix B: List of Additional Written Comments Received
on Title V Implementation Experience
(Submitted to EPA Docket No. OAR-2004-0075)
Appendix C: Copy of Slides Used by the Title V Task Force in Briefing
the Clean Air Act Advisory Committee
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O*
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\ PRO^
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
4
5 RESEARCH TRIANGLE PARK, NC 27711
MAR 2 9 2006
OFFICE OF
AIR QUALITY PLANNING
AND STANDARDS
MEMORANDUM
SUBJECT: Task Force on Title V Implementation Experience
FROM: V William T. Harnett
Director, Air Quality Policy Division (C504-01)
TO: Clean Air Act Advisory Committee (CAAAC) Permitting, NSR and
Toxics Subcommittee
Please find enclosed the Final Report of the Task Force on Title V Implementation
Experience. You formed the Task Force in May 2004 to review the implementation and
performance of the operating permit program under title V of the 1990 Clean Air Act
Amendments. The Task Force has compiled a substantial body of public testimony and
written comments concerning what is working or not working in the title V permit
program. Collectively, the Task Force members and EPA spent thousands of hours over
the past two years on this effort. Included in the report are a number of recommendations
for consideration by CAAAC and EPA. These recommendations and the discussion
accompanying them are the culmination of a great amount of thoughtful deliberation
about how the program can be better implemented. Consistent with your charge, the
report reflects the core issues of concern to all stakeholder groups and all of their
perspectives of how best to address them. The Task Force hopes that this work product
will be very useful to both the CAAAC and to EPA.
EPA would like to express its gratitude to all members of the Task Force for their
dedication to this project and the large amounts of time they devoted to its completion.
EPA and the public at large are deeply indebted to all members of the Task Force for the
careful translation of the public testimony into recommendations for the improvement of
many areas of the title V program.
The Task Force would like me to pass along their thanks to the EPA staff for their
hard work in facilitating this process as well as to recognize the efforts of EC/R
Incorporated representatives for arranging our meetings and for their valiant efforts to
prepare notes on our activities.
We entrust this report to your deliberation and seek your direction on how EPA
should proceed to implement the Task Force's recommendations.
Internet Address (URL) • http://www.epa.gov
Recycled/Recyclable ^Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 25% Postconsumer)
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Executive Summary
Executive Summary
In 2004, the Clean Air Act Advisory Committee (CAAAC) established the Task Force on
Title V Implementation Experience ("Task Force") to report on stakeholder experience
with implementation of the Title V operating permit program. The 18-member Task
Force, which consisted of representatives from industry, environmental groups, and State
and local agencies, used public meetings, written comments, and individual experience as
resources to identify and evaluate the Title V program and develop recommendations.
This report represents a compilation of the issues identified and includes summaries of
Task Force discussions, key supporting stakeholder experience, conclusions, and recom-
mendations. Since the report represents the perspectives of the various stakeholders there
are some issues and recommendations with Task Force consensus, and others where the
report notes the differences.
As background, the Clean Air Act of 1990 provided for the development of a national
operating permitting system for major sources of air pollution. Under this new section
(Title V), State and local air pollution control agencies would issue permits that would
contain all of the requirements that were needed for a source to maintain compliance with
State and Federal air pollution control regulations. Furthermore, the Title V permit
would be directly enforceable by the permitting authority issuing the permit and EPA. It
is also subject to the citizen suit provisions of the Act. From the beginning, implementa-
tion of Title V has been difficult and controversial. After 15 years, there are still signifi-
cant issues associated with the operation of the program.
The Task Force identified a number of program benefits that were generally recognized
across the spectrum of stakeholders. These include:
• Recording of applicable requirements in one document clarifies regulatory require-
ments for permitting agencies, the public, and facilities.
• Improved public participation at various stages of the permitting process.
• Improved communication between regulatory agencies and facilities has resulted in
better permits and mutual understanding of compliance requirements.
• Establishment of a funding mechanism to provide resources to administer State per-
mit programs.
• Improved source compliance assurance systems, driven by Responsible Official
obligations and reporting of deviations and a strengthened penalty/enforcement
mechanism.
In evaluating the Title V program, the Task Force categorized key issues into 19 different
areas. For each topic the Task Force characterized the issue, developed recommenda-
tions, summarized Task Force discussions, and included supporting comments from
public hearings and written testimony. The topics included in this report are:
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Executive Summary
• Program Overview Papers
- Benefits
Costs
• Content Issues
Incorporation of Applicable Requirements
Insignificant Activities and Emission Units
Monitoring
Title I/Title V Interface
- New Substantive Requirements
Permit Definitiveness
Compliance Certification
Startup, Shutdown, and Malfunction
Compliance Schedules
• Process Issues
EPA Review of Proposed Permits
- Public Access to Documents
- Public Hearings
- Public Notice Throughout Process
Statement of Basis
- Responses to Public Comments
- Permit Revisions and Operational Flexibility
Appeals and Petitions
The Task Force developed an extensive list of recommendations. Although there were no
external constraints on the scope of the recommendations of the Task Force, the members
recognized that recommendations which could be implemented under current legisla-
tive/regulatory authority would be easier, and more timely, to implement. The recom-
mendations are included in each topic area. Given the diverse views of the Task Force
there is no consensus list of recommendations or conclusions, although the votes shown
on each recommendation indicate the degree of consensus.
The Task Force believes that an EPA assessment and implementation of many of the
recommendations will provide for an improved Title V operating permit program. A
program that achieves program objectives in a more efficient manner will benefit all
stakeholders.
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Introduction
l. Introduction
I.I Charge to the CAAAC Task Force On Title V Implementation
Experience
The Permitting Subcommittee of the Clean Air Act Advisory Committee establishes the
Task Force on Title V Implementation Experience, and charges it with this objective:
The Task Force will report to the committee on the experiences of stakeholders who have
been working in the Title V permitting arena {i.e., a "State of the Title V program" re-
port). The report should reflect the perspectives of all stakeholder groups, and should
reflect an effort to answer two questions:
1. How well is the Title V program performing?
For example, has it:
• Resulted in permits that clearly compile all a source's applicable requirements
into a single document?
• Enabled sources, States, EPA, and the public to better understand the require-
ments that apply to a source?
• Enabled sources, States, EPA and the public to better know whether a source
is meeting these requirements?
• Triggered actions that result in better compliance with the CAA?
• Allowed for better enforcement of CAA requirements?
• Improved citizen participation in air quality decisions by involving the public
in the issuance of permits?
• Improved EPA's ability to implement and oversee CAA programs, including
toxics, acid rain, etc?
• Enhanced governments' ability to do air quality planning?
• Ensured self-funding adequate to run effective programs?
• Resulted in better air quality?
2. What elements of the program are working well/poorly?
The answers to these questions should, to the maximum extent possible, reflect consid-
eration of stakeholders' real world experience with the Title V program, and should
include examples - good and bad - that illustrate this experience. Where possible, em-
phasis should be placed on actual examples, but in some cases, hypothetical examples
may provide the best illustration.
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Introduction
When the Task Force has gathered sufficient information to characterize the various
perspectives on Title V implementation experience, as described above, it may also elect
to offer recommendations for improving the Title V program.
The report and any recommendations made should reflect the full range of stakeholder
perspectives discussed. The Task Force may characterize consensus statements and
recommendations as such, but where there is not consensus, the report should detail the
full range of issues discussed and views expressed during the process.
In order to ensure that the discussions reflect sufficient depth, but also ensure a broad
collection of stakeholder perspectives, the Subcommittee recommends that the Task
Force conduct at least three full-day meetings, and have at least one meeting outside of
the Washington D.C. area. The EPA will explore options for supporting the Subcommit-
tee's work, such as providing transcripts and summaries of these meetings.
1.2 Title V Task Force Members
State/local Permitting Agencies
Rob Sliwinski and
John Higgins
New York Department of Environmental Conservation (NY DEC)
Shelley Kaderly
Nebraska Department of Environmental Quality (NE DEQ)
Don van der Vaart
North Carolina Dept of Environmental Management (NC DEM)
Adan Schwartz
Bay Area Air Quality Management District (AQMD)
Bob Hodanbosi
Ohio Environmental Protection Agency (OH EPA)
Steve Hagle
Texas Council on Environmental Quality (TCEQ)
Environmental Advocacy Groups
Karla Raettig and
Kelly Haragan
Environmental Integrity Project
Marcie Keever
Our Children's Earth
Bob Palzer
Sierra Club
Verena Owen
Lake Co. (IL) Conservation Alliance
Keri Powell
New York Public Interest Research Group (NYPIRG)
Richard Van Frank
Improving Kids' Environment
Industry
Shannon Broome
Air Permitting Forum
Lauren Freeman
Utility Air Regulatory Group (UARG)
Bernie Paul
Eli Lilly and Company
Bob Morehouse
ExxonMobil
Mike Wood
Weyerhaeuser Company
David Golden
Eastman Chemical
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Introduction
Support and Facilitation
EPA
Bill Harnett, Michael Ling and
Ray Vogel
Office of Air Quality Planning and Standards
Steve Hitte
Region IV
Callie Videtich
Region VIII
Padmini Singh
Office of General Counsel
Carol Holmes
Office of Enforcement and Compliance Assistance
EC/R Incorporated
Graham Fitzsimons
Shannon Cox
Lesley Stobert
Steve Edgerton
Kathy Boyer
1.3 Task Force Methodology
Selection of Task Force members
The formation of the Task Force and a public solicitation of candidates was announced in
a May 17, 2004 Federal Register (69 FR 27921). With a goal of creating a reasonably
small and diverse group, the EPA selected an 18-member Task Force comprised of ex-
perienced representatives from industry, environmental advocates and State and local
agency officials.
Public Testimony
The charge from the CAAAC Permitting Subcommittee instructed the Title V Task Force
to issue a report that "should reflect the perspectives of all stakeholder groups." The
subcommittee recommended that the Task Force conduct at least three full-day meetings,
at least one of which should be outside the Washington, D.C. area.
Consistent with its charge, the Task Force held three public meetings at these locations:
June 25, 2004 Washington D.C.
September 14, 2004 Chicago, IL
February 7, 2005 San Francisco, CA
In addition, a public conference call on November 15, 2004 was held with environmental
advocates, to obtain testimony from those who might be unable to afford travel to one of
the public meetings. Also a public conference call on February 8, 2005 was held with
State and local agencies, because the Task Force believed that the public meetings up to
that point had underrepresented the views of State and local permitting agencies. Indus-
try stakeholders presented their views by appearing in person at the public meetings or
filing written comments; however, they were not provided a separate conference call.
From the meetings and conference calls, testimony was received from 74 speakers, of
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Introduction
which 18 represented industry, 18 represented State and local agencies and 38 repre-
sented environmental advocacy groups.
Also, written comments were received until March 31, 2005. A total of 44 comment
letters were received: 18 from industry, 13 from State and local agencies and 7 from
environmental advocates. In addition, 34 studies and supporting documents were submit-
ted to the docket.
Full text of the public testimony is available on www.epa.gov/caaac/titleV. The written
comments are also available on www.epa.gov/caaac/titleV and on www.regulations.gov
at docket (enter docket number OAR-2004-0075 into "advanced search"). In addition,
sections of public testimony and written comments are liberally quoted or summarized in
this report in many issue areas.
Identification of Issue Areas
In evaluating the input received, the Task Force divided the various comments into Issue
Areas. (See Table 1.3-1). These Issue Areas are the ones of most interest to stakeholders
and Task Force members. Therefore they don't necessarily reflect some of the original
charge questions posed by the CAAAC. For example, there was very little input on items
like air quality planning (one of the example CAAAC questions) so the Task Force did
not focus on areas not highlighted by stakeholders. The goal of the Task Force was to
cover a broad range of issues while giving meaningful treatment to each. This necessar-
ily means that not every issue raised by stakeholders is reflected in the body of the report.
The Task Force wishes to emphasize that its decision not to address in the body of the
report a particular issue on which testimony was provided should not be interpreted as a
decision that the issue is unimportant. Given our limited time, we attempted to prioritize
the issues based on the degree of input received and the likelihood of having productive
discussions within the Task Force.
Process for Developing Each Issue Area
Each Issue Area was taken on by small groups of Task Force members to frame the
issues and sub-issues, to summarize the supporting information presented in the oral and
written public comments and to suggest recommendations for consideration by the entire
Task Force. Once issue papers were developed, face-to-face meetings were held to hear
the viewpoints of each member of the Task Force, modify the framing of the issues or
sub-issues within the topic if necessary, and discussing and voting on potential recom-
mendations. Five face-to-face meetings were held from February 2005 to January 2006.
In addition, the Task Force added days either before or after some public meetings to
move its work forward. Finally, a large number of conference calls between the face-to-
face meetings were held to discuss issue papers, to suggest and vote on recommendations
and to discuss development of the report.
To ensure that all issues and potential recommendations were considered, we allowed
anyone on the Task Force to suggest a recommendation and held discussions on all of-
fered recommendations. In some cases, recommendations were modified to garner addi-
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Introduction
tional support and thus may represent a compromise position by some or all persons
voting in favor of a recommendation. Even if a proposed recommendation did not re-
ceive a majority of votes from members of the Task Force, we have included it in the
issue paper to provide a complete picture of the issues we discussed and people's view-
points. Thus, the term "recommendation" is used for all proposed recommendations
whether or not a recommendation received a majority of votes from the group. It was our
desire not to eliminate viewpoints simply because they were not held by a majority of
members. At the same time, the nomenclature of "recommendation" should not be read
to indicate that every recommendation is endorsed by all of the Task Force. To draw
conclusions on how strongly a recommendation has the support of all Task Force mem-
bers, the reader is directed to review the voting for each recommendation and the Discus-
sion section in the paper.
Where possible, we also included in the Discussion section of a paper an explanation of
the deliberations so that the reader can understand why someone may have supported,
opposed, or abstained from voting for a particular recommendation. For example, a vote
against a recommendation may have been based on a particular phrase of concern in the
recommendation, or it may have been against the recommendation as a whole. While we
cannot recreate the entire discussion (and we doubt anyone would want to read it if we
could), to the extent possible, the summary of the Task Force discussions in each paper is
intended to help the reader understand what concerns and policies motivated particular
votes. We also included an option to abstain from a particular vote as well as to offer
clarifications of a vote. The clarification option allowed members of the Task Force to
explain their votes, e.g., how they interpreted a particular word or phrase in the recom-
mendation, or why they abstained from voting for the recommendation. Finally, although
Task Force members participated in discussions and voted with the intent of representing
the viewpoint of the organization they were representing to the best of their ability, the
votes themselves are to some degree personal votes in that the Task Force did not open its
process to allow the organizations themselves to vote on recommendations.
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Introduction
The following areas were identified by the Task Force for the purpose of developing
issue papers for further discussion. The order of this list is alphabetical and does not
reflect any particular priority.
Table 1.3-1 Issue Areas identified by the Task Force
Topic
1.
Compliance Certifications
2.
Compliance Schedules
3.
Definitiveness of Permit
4.
Deviation Reporting*
5.
EPA Review of Proposed Permits
6.
Incorporation of Applicable Requirements
7.
Insignificant Activities/ Emission Units
8.
Monitoring
9.
New Substantive Requirements
10.
Permit Reopening, Revisions, Current and Operational Flexibility
11.
Petitions and Appeals
12.
Program Benefits
13.
Program Costs
14.
Public Access to Documents
15.
Public Hearings
16.
Public Notice throughout Process
17.
Responses to Public Comments on Draft Permits
18.
Startup, Shutdown, and Malfunction
19.
Statement of Basis
20.
Title I/Title V (SIP gap; e.g., old NSR)
* No paper was ultimately developed on this issue.
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Introduction
IA Report Structure
As described in the Task Force Methodology section, this report represents a work prod-
uct based on input received from four public meetings, two public conference calls to
receive input, numerous written comments submitted, and extensive discussions at Task
Force meetings from 2004-2006.
The report has been structured to achieve the following:
• To capture and summarize key input from multiple stakeholders on the Title V pro-
gram as received in public hearing and written submittals.
• To capitalize on the experience of Task Force members to identify, characterize, and
prioritize Title V issues.
• To develop recommendations to improve the Title V program. The recommendations
go beyond the original charge to the Task Force (which focused on how the program
is performing and elements of the program that are working well/poorly).
The main body of this report is organized by Issue Areas. The Task Force agreed to write
an issue paper for each issue area in a standard format. Thus, each paper contains the
topic, a brief Issue/Observation Description, Supporting Information, a Task Force Dis-
cussion Summary (based on meeting or conference call discussions), and, where possible,
Recommendations. The issue papers were used by the Task Force to facilitate discus-
sions but also evolved as a result of those discussions. The Supporting Information
referenced above represents either a summary of public hearing input/written comments
or direct quotes from the public meetings and written comments. Some papers include
attachments with additional supporting information as well.
The report also includes a summary of the purpose of the Title V Operating Permit pro-
gram. It is important in evaluating the Title V program to provide a frame of reference
for the analysis. This section provides a brief overview of the legislative and regulatory
history of the Title V program.
The final report includes all of the recommendations that were considered by the Task
Force. So as to better represent the spectrum of viewpoints, the Task Force allowed its
members broad latitude to offer recommendations. Members used the voting system to
support, disagree with, or abstain from each recommendation, and could also offer alter-
nate recommendations. As noted above, though time was devoted to discussion of each
recommendation with the goal of moving towards consensus, each recommendation
offered by a Task Force member was included in the report regardless of the degree of
consensus behind it.
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Purpose of Title V Operating Permit Program
2. Purpose of Title V Operating Permit Program
Almost 15 years after enactment, the purposes of the Title V program have been achieved
to varying degrees. However, an assessment of these broader purposes is as relevant
today as in 1990. On a facility-specific scale, Title V permits are living documents that
should reflect changing conditions at a facility. Thus, issuance of a permit to a facility
by no means ends the relevance of a broader "purposes" discussion to that facility. On a
program-wide scale, this Report demonstrates that much about Title V remains unsettled
and subject to debate in both the legal and policy arenas. Thus, even 15 years into im-
plementation of the program, there is a need to explore and reconcile views regarding the
program's fundamental purposes.
The Permitting Subcommittee charged this Task Force with evaluating what aspects of
the Title V program are working well and what aspects are not working well. In addition,
the Task Force was given the option of developing recommendations. In assessing what
is or is not working well, each stakeholder (including each person who presented infor-
mation to the Task Force and each Task Force member) brings to bear his or her view of
what the program was intended to accomplish, i.e., its purposes. The Report discusses
purposes both because they were raised in testimony, and because understanding the Task
Force members' views about purposes is helpful to understanding how they approached
the question of what is or is not working well.
Aside from the law itself, the legislative history is a common source of information about
the purposes of a program such at Title V. Reports prepared by the U.S. Senate and
House of Representatives preceded the enactment of Title V in 1990 and speak to various
themes that have echoed throughout the implementation of this program. In addition,
extensive changes were made in conference to reconcile the House and Senate provisions
so statements made contemporaneous with enactment are also important and perhaps
more telling. Among the recited purposes are: consolidating all Clean Air Act require-
ments into one document, enhancing public participation in decisions about applicability
of these requirements to major facilities, providing an opportunity to judicially challenge
these decisions, enhancing the ability to enforce Clean Air Act requirements through
among other things, compliance certifications, and providing certainty to permitted facili-
ties regarding which regulatory obligations apply.
The Task Force participants, representing a broad spectrum of those involved with Title
V implementation, shared a general consensus around the existence of these purposes,
even when they disagreed about the means by which they should be addressed. In addi-
tion, the Task Force proceedings touched upon some purposes, the validity or interpreta-
tion of which is fundamentally disputed within the Task Force membership and among
stakeholders. For example, while there was agreement that Title V was not intended to
affect the stringency of requirements incorporated into the permit, there was disagree-
ment over whether actions such as the addition of new monitoring or new compliance
methods affect stringency, the discussion of which tended to focus on the relationship
between the data used in setting a standard to the data used to enforce that standard and
the compliance obligation that results. In a similar vein, there was agreement that Title V
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Purpose of Title V Operating Permit Program
was not intended to create new substantive requirements, but there were a range of views
as to whether conditions such as enforceable parameter monitoring that are added to
"assure compliance" create or are sometimes tantamount to creating new substantive
requirements. These examples illustrate how a person's perspective on the purpose of
Title V necessarily influence how one determines if and how the program is or is not
working well.
Intended purposes aside, it is worth noting here the effects of Title V implementation
that, whether intended or not, appear to have flowed inexorably from it. One example is
a heightened impetus to resolve longstanding issues of interpreting Federal or SIP stan-
dards, sometimes through revision of the standard itself. Another example is the incen-
tive to resolve longstanding compliance problems at facilities applying for a permit so
that compliance can be certified and a schedule of compliance avoided. By raising the
statutory profile of compliance through certifications, the Title V program can probably
be credited with forcing resolution of issues that otherwise may have persisted in a State
of stalemate (or perhaps acknowledged ignorance by all sides). A third example is an
opportunity for the people living near a facility to find out more about it, even if they
otherwise agree with the permitting requirements. The group did not reach resolution,
however, on the issue of whether these accomplishments could have been achieved in a
better, or more efficient, manner as we were not charged with this task.
A final observation that became clear through the Task Force discussions is that a fair
portion of the disagreement that occurs over purposes of the Title V program stems from
Title V's use of the capacious phrase "assure compliance" to describe the intended effect
of the Title V program. Expansively interpreted, "assuring] compliance" could encom-
pass every activity that follows the adoption of a substantive standard, including prescrip-
tion of monitoring and other compliance terms, interpreting application of the require-
ment at a particular facility, as well as the methods and level of effort employed by the air
agency to verify compliance and pursue legal enforcement options in instances of non-
compliance.
Through the "assure compliance" phrase and other more specific provisions of Title V, a
discussion has been joined regarding much of the panorama of activities that permitting
agencies have been undertaking, a discussion which always revolves around the question
of whether and to what degree an enhancement of these traditional activities is authorized
or required. The breadth of issues open for debate as to manner and degree, the consider-
able overlap with activities that preceded Title V, and the vagueness of directives in the
statute and, to a lesser extent, EPA's regulations, have resulted in considerable transac-
tion costs to all participants in Title V process. This is evidenced by the long list of
issues that have been negotiated and litigated on the national, State, and facility-specific
levels. It is the sense of the Task Force that steps should be taken to stem the tide of
transaction costs and to bring an increased level of certainty and stability to implementa-
tion of this program. To this end, the Task Force offers its recommendations to EPA (and
in some cases directly to State permitting authorities) so that it may exercise its authority
appropriately and that Title V may proceed along a straighter path of implementation.
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Program Overview Issue Areas
Title V Program Benefits
3. Program Overview Issue Areas
3.1 Topic: Title V Program Benefits
Issue/Observation Description
The Title V Task Force requested input on the benefits of the Title V program as part of
the assessment of the program. Commenters identified a number of benefits of the pro-
gram that are summarized in this paper.
Several commenters referenced the purpose of Title V based on the congressional record
and EPA preambles to regulations. It was suggested that the program should be evalu-
ated on the basis of the expected benefits and costs. A few key comments on the purpose
of the Title V program are as follows:
• Include Federal regulatory requirements in one document. The document can con-
solidate duplicative and redundant requirements.
• Enable the source, States, EPA, and the public to better understand requirements to
which the source is subject and whether the source is meeting those requirements.
• Increase public participation in the permitting process.
• Facilitate enforcement by providing a single reference for all of a major source's
operating limits and requirements.
• Simplify procedures for a source to modify obligations.
• Establish a mechanism, i.e., permit fees, to fund State/Local programs.
• Establish streamlined procedures to incorporate requirements without establishing
substantive new requirements {i.e., stringency) or costs.
The comments received and the Task Force discussion on benefits can be summarized as
follows (detailed comments are in the Supporting Information section):
• The majority of commenters agreed that incorporating applicable requirements in one
document is beneficial to regulatory agencies, the public, and sources. The benefit
derives from the process of identifying and clarifying requirements and communicat-
ing with the public. Permitting authorities were better able to identify sources and re-
quirements that had been missed in the past. Some permitting authorities that had
previous operating permit programs stated that the Federal program provided little
additional benefit and some commenters indicated that the permits are far too com-
plex for the public to fully understand them.
• Improved public participation. Numerous commenters noted the improved opportu-
nity to participate in, and influence, the permitting process. The process provides
points in time for interested parties to communicate issues about a site to regulatory
agencies where limited opportunities existed before. Participation includes the ability
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Program Overview Issue Areas
Title V Program Benefits
for the public to participate in the process by commenting on permits, file administra-
tive petitions with EPA, and appeal EPA's permitting decisions. While the public
may only participate in a small number of permit review processes the Task Force
heard numerous comments that the public's participation was a benefit of the Title V
process by increasing public knowledge of regulated facilities.
• Improved working relationship and communications between regulatory agencies and
facilities. Increased interaction has resulted in better permits and mutual understand-
ing of compliance requirements.
• The mechanism to fund State permit programs was highlighted as an effective way to
provide resources to administer the program.
• There was a diversity of comments on whether or not the Title V program has re-
sulted in air quality and health benefits. Some indicated that companies have in-
stalled controls to reduce emissions below the major source threshold that triggers Ti-
tle V permits and that the added focus on compliance has positively impacted envi-
ronmental performance. Others suggested that sources that took enforceable limits
were already below the major source threshold.
• Sources have generally strengthened their compliance assurance systems, driven by
Responsible Official obligations and reporting of deviations. Title V also provides a
strengthened penalty/enforcement mechanism. Some State representatives com-
mented that compliance at facilities had improved through the identification of re-
quirements missed in the past, increased accountability due to the compliance certifi-
cation/reporting process, and self-auditing.
Discussion Summary
The Task Force discussions on benefits generally reinforced and supported the summary
comments above. It was noted that commenters did not quantify benefits, while cost
information was provided by many commenters. Task Force members recognized, how-
ever, that the program was not developed on a cost/benefit basis, so a direct comparison
was not considered.
It was also noted that many comments were conditioned that either full benefits haven't
been achieved (i.e., barriers have been established that limit capturing full benefits) or
that the benefits don't warrant the added regulatory burden to achieve them. There was
also a discussion on whether or not Title V was the driver for some of the benefits. For
example, some Task Force members believe the Title V program has resulted in air emis-
sion reductions; others believe that the emission reductions would and have been
achieved as a result of other regulatory requirements since Title V was not designed as an
emissions control program like an NSPS or MACT program.
It was also recognized that a number of the Task Force recommendations are intended to
enhance the benefits of the program and that the authors of the various issue sections
should highlight these benefits in evaluating the issues.
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Program Overview Issue Areas
Title V Program Benefits
Recommendations
The Tusk I'orce had 110 recommendations lor the Program IJenelits section only The
recommendations incorporated in oilier sections of the report tire ueneralI\ designed to
more efficiently elVecti\el\ impro\e the program. capture unrealized benefits, and
impro\e program cost elTecti\eness It was also suggested that the scope of the third
cost recommendation, relating to case studies, include benefits deri\ed
Supporting Information
Congressional and Regulatory Intent of Title VProgram:
1. "The congressional record for the Clean Air Act Amendments of 1990, Public Law
101-549, is comprised mainly of the Senate Report (No. 101-228), since it was the
Senate bill that was passed. The following excerpts from the Senate Report are help-
ful in understanding Congress' intent for the creation of Title V permits:
"The first benefit of the Title V permit program is that, like the CWA (Clean
Water Act) program, it will clarify and make more readily enforceable a
source's pollution control requirements. Currently, in many cases, the
source's pollution control obligations - ranging from emission controls and
monitoring requirements to recordkeeping and reporting requirements - are
scattered throughout numerous, often hard-to-find provisions of the SIP or
other Federal regulations."
"Another benefit of the permit program - which will accrue to regulated
sources - is the simplification and expediting of procedures for modifying a
source's pollution control obligations."
"....State permit programs must include permit fees designed to recoup the
costs of the air pollution control program.. .The purpose of this requirement is
to force sources of pollution to internalize that cost of such pollution including
the costs incurred by the States in developing and implementing air pollution
control programs. "
"EPA should seek to minimize problems of processing the large numbers of
initial permit applications. EPA and the States should develop streamlined
procedures for handling large numbers of permits, particularly in the case of
industries whose sources have comparable operations, through, for example,
model or standardized permits. EPA should also develop streamlined proce-
dures in cases where the permit simply incorporates without changing, exist-
ing requirements found in the SIP or in other provisions of the Act."
"In some cases, permit applications will simply incorporate information nec-
essary to satisfy the requirements of existing SIPs or other Act requirements.
Preparation of the permit applications will not involve significant new costs.
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Program Overview Issue Areas
Title V Program Benefits
For example, this title does not independently require source-specific model-
ing or monitoring."
"EPA should seek to develop administrative mechanisms to alleviate the bur-
dens of permit renewals on sources preparing permit applications and on per-
mitting authorities required to act such applications. EPA should also develop
administrative mechanisms or guidance so that a source may, in the course of
normal operation, make minor changes in production methods or products
without the need to apply for a modified permit with each change."
The following quotations from the Final Rule (July 21, 1992; 57 FR 32250) were
helpful to us in understanding EPA's perspective:
"While Title V generally does not impose substantive new requirements, it
does require that fees be imposed on sources and that certain procedural
measures be followed, especially with respect to determining compliance with
underlying applicable requirements. The program will generally clarify, in a
single document, which requirements apply to a source and, thus, should en-
hance compliance with the requirements of the Act."
"The Title V permit program will enable the source, States, EPA, and the pub-
lic to better understand the requirements to which the source is subject, and
whether the source is meeting those requirements. Increased source account-
ability and better enforcement should result. The program will also greatly
strengthen EPA's ability to implement the Act and enhance air quality plan-
ning and control, in part, by providing the basis for better emission invento-
ries."
"Finally, an important benefit is that the permit program contained in these
regulations will ensure that States have resources necessary to develop and
administer the program effectively. In particular, the permit fees provisions of
Title V will require sources to pay the cost of developing and implementing
the permit program. To the extent the fees are based on actual emission lev-
els, the fees will create an incentive for sources to reduce emissions."
[American Chemistry Council, 3/31, 2005; more detailed historical comments are in-
cluded in the Air Permitting Forum comments dated 3/31/05]
Applicable Requirements — One Document:
1. "The basic idea of a single permit that includes all Federally applicable requirements,
as well as monitoring, recordkeeping and reporting sufficient to assure compliance, is
a goal towards which we should continue to work." [Kelly Haragan, Environmental
Integrity Project, 3/25/05, p 4]
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Program Overview Issue Areas
Title V Program Benefits
2. "Our member agencies' experience has been that consolidation of applicable require-
ments and compliance demonstration methodologies into a single document have
clarified source obligations resulting in improved compliance." [Chuck Layman,
CENSARA & C EN RAP]
3. "Title V requires that all emission and monitoring requirements be in a single docu-
ment, the permit, and be understandable to the public. This requirement has rarely
been fulfilled." [R.M. Van Frank, Improving Kids Environment]
4. "One of the most fundamental benefits of the Title V permit is that it incorporates
into one document all applicable air quality related requirements.... Folding all re-
quirements into one document has provided sources the opportunity to more easily
review their obligations and provide accurate reports of their compliance status....
This same benefit applies to the regulatory staff of our agency.... The public for the
first time has the ability to quickly review the activities related to a particular source
of interest by reading the Title V application and issued permit." [Doug Campbell,
Iowa Department of Natural Resources, 2/7/05, p 1-3]
5. "The incorporation of all applicable requirements into one document gives the State,
sources, and the public a clear picture of what is required of a source to maintain
compliance with State and Federal air laws. In NJ, over 21,000 individual air permits
have been grouped in 335 comprehensive permits for the 335 major sources of air
pollution in the State." [William O'Sullivan, NJ DEP 2/28/05]
6. "I think one result of the Title V permit program here in San Diego was that it forced
us to, at one time, look at all the permits that had been developed for various emission
units at major sources over the years and make sure that the requirements were clear,
that there was a clear reference to an applicable requirement, whether it be a Federal
requirement, State or local, and also that all the permits and permit conditions were
up to date.... I'm not sure, though, that that has resulted in a permit document that is
less confusing and less cumbersome for applicants and for the general public." [Mi-
chael Lake, San Diego County APCD]
7. "The primary value of the Title V program is the Title V permit itself. The compila-
tion of a source's Clean Air Act requirements into a single document serves two valu-
able purposes. First, it informs the source, the permitting authority, and the public of
the requirements that apply to the facility. Second, it clarifies which requirements do
not apply to the facility. Ideally, the permit will make the source's compliance obli-
gations clear so that the source can focus its compliance management systems on ap-
plicable requirements." [Bernard Paul, Eli Lilly]
8. "Overall, Ohio EPA believes the national permitting strategy outlined in 40 CFR Part
70 is a worthwhile endeavor that provides (a) an identification of all Federal permit
requirements in one document, (b) concise identification of all applicable rules and
emission limitations..." [Robert Hodanbosi, Ohio EPA, 3/31/05]
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Program Overview Issue Areas
Title V Program Benefits
9. "In theory, permit consolidation would be beneficial; in practice, there have been
mixed results. Consolidation has resulted in more manageable permit programs in
some cases. In New York State, for example, there were formerly 12,206 separate
emission-point permits. Title V has whittled down that number to 498. Permit ad-
ministration has generally been simplified. Detailed descriptions of operating condi-
tions contained in permits allow regulated sources to consistently document compli-
ance. Facility-wide requirements have been clarified. Uniformity of reporting, re-
cord-keeping time frames, testing and calibration schedules and averaging periods in
permits has fostered consistency and fairness in regulatory treatment of sources. The
Title V permits and their consolidated requirements are far more accessible to the
regulated community. In addition, they help citizens understand the amount of pol-
lutants allowed to be emitted under the regulations and the corresponding compliance
assurance requirements. Other States have had different experiences, and note exces-
sive permit length and increased complexity...In addition, permits have been made
more accurate by deletion or revision of language in old permits that was ambiguous,
inapplicable, outdated, or simply erroneous. Non-compliant units were discovered
during the application process and were the subject of corrective actions." [Bob Ho-
danbosi, Ursula Kramer, STAPPA/ALAPCO, 3/31/05, p2]
10. "In general, we believe that the Title V program has provided benefits to areas that
did not previously have an operating permit program. However, in California it has
done little to improve air quality or add to the general public's awareness of air pollu-
tion requirements... TV program has not effectively served its stated purpose to make
it easier for regulators and the public to have all applicable requirements in one clear
document nor has it allowed for effective public participation. In some cases EPA
staff has emphasized a single document with all applicable requirements. Including
processes such as sandblasting or painting of architectural structures in the main body
of a Title V permit is at odds with the goal of having a document that is understand-
able to the public, to the regulated community and to the regulators themselves. Such
requirements detract from the focus on the primary function of the source. We rec-
ommend flexibility be allowed such that processes that are incidental to the function
of the source could be included in a separate section of the permit. Likewise opera-
tions with only a small contribution to the emissions from the source could be segre-
gated from the significant requirements." [Harry A. Krug, California Air Pollution
Control Officer's Association, February 23, 2005, pi]
11. "However, there were already in existence at least 35 State or local permit programs
across the country when the Title V program began. For instance, as I mentioned ear-
lier, Ohio has had a permit to operate program since the early 1970s and it has
worked fine. There are areas of the country where the Title V purposes may have
been already met." [John Paul, Regional APCA]
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Program Overview Issue Areas
Title V Program Benefits
Public Participation:
1. "A second major benefit of the Title V program is public participation in the permit-
ting process. This is, you know, the one major area in air permitting where the public
has a voice, can become involved, can participate, hopefully, in the ideal situation, in
the development of the document that will put the requirements on the facility or at
least put them into one place." [Lyman Welch, MidAtlantic Environmental Law
Clinic]
2. "Public participation has been enhanced under the Title V program, with more pre-
scriptive notice requirements. New York also makes a permit review report available,
which contains... statements of basis.... New York also posts draft and final permits
on the website along with permit review reports." [Matt Reis, New York Dept. of
Environmental Conservation]
3. "The first example involves a group called the Chester Street Block Club Association,
a grassroots community group located in West Oakland. Because the Title V renewal
process is a public process provided for public participation, Chester Street was able
to identify and resolve a problem with air pollution in their community.... Despite the
fact that VOCs are subject to emission limits, when the plant's Title V permit was up
for renewal, the Bay Area Air Quality Management District issued a draft permit that
would have exempted the plant from complying with those limits. Chester Street par-
ticipated in the permit renewal process; and its comments led the district to acknowl-
edge that the exemption did not apply to the plant. As a result, any renewed permit
would have placed limits on the plant's harmful VOC emissions. In this example, the
Title V permit renewal process provided Chester Street with a forum where it could
participate and challenge the improper exemption in the yeast plant's permit. And the
result has been improved air quality for the residents of West Oakland." [Keri Ban-
dies, Environmental Law and Justice Clinic]
4. "Experiences illustrate that public participation in the Title V permit process is help-
ing to ensure that permits accurately reflect all limits that apply to air pollution
sources." [Golden Gate University School of Law, Environmental Law and Justice
Clinic, 3/18/05, p8]
5. "The public and environmental organizations have provided comments on less than 3
percent of the Title V permits. Public hearing has been requested for less than 2 per-
cent of the Title V permits. This level of participation clearly can not be considered
as extensive, but rather sporadic." [Mohsen Nazemi, South Coast Air Quality Man-
agement District, 2/7/05]
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Program Overview Issue Areas
Title V Program Benefits
State Permit Fees:
1. "The last benefit of the Title V program topic that I will discuss today is the Title V
fee. We feel that Congress was correct to include a funding mechanism when this
program was conceived. Without this self-funding mechanism, there's no doubt that
the department would not be able to fulfill its duties related to the Title V program
and would not be reaping the benefits from the program." [Jeff Kitchens, Alabama
Dept. of Environmental Management]
2. "Since Title V is a fee-funded program, it has provided additional resources to sup-
plement general State funds and Federal funds. These additional resources have been
utilized not only to oversee compliance of Title V facilities, but to bolster all aspects
of the section's program, such as source monitoring, emission inventory, and plan-
ning. It has also shifted the financial burden of the permitting program, making fa-
cilities that emit more, and thus require more of the agency's time, pay higher permit
fees." [Amy Mann, Delaware Department of Natural Resources]
3. "Another significant benefit of the Title V program is that it is designed to provide a
dedicated source of funding that can not be impacted by changing priorities as re-
flected in legislative or congressional appropriations." [Doug Campbell, Iowa De-
partment of Natural Resources, 2/7/05, p 1-3]
Air Quality Benefits:
1. "Other benefits realized of the Title V program are: emission reductions resulting
from the installation of control equipment to reduce emissions below the major-
source threshold." [Chuck Layman, CENSARA & CENRAP]
2. "I'll mention, also, that we've had some sources that were able to opt out of the Title
V program by eliminating their potential to emit. I know this has been cited before as
a source of emission reduction associated with the Title V program. I would note that
our experience here in San Diego has been that in most cases facilities had actual
emissions below the Title V threshold, and their opting out of the Title V program
didn't result in any actual emission reductions. We had one case where a source in-
stalled emission controls and reduced their carbon-monoxide emissions by about 70
tons per year, but in all other cases, we haven't seen emission reductions that have re-
sulted.... However, we've seen very little in the way of corresponding air-quality
benefit." [Michael Lake, San Diego County Air Pollution Control District]
3. "Some of these reductions may only be on paper. We feel that actual emissions have
also been reduced so the companies can avoid the Title V program. Some instances
of these actual reductions include changing to lower VOC or HAP-content coating,
installing control devices where they would not otherwise be required, and changing
to lower sulfur-content fuels. Reductions in actual emissions may also be attributed
to companies' desire to pay less in Title V commission fees, which in Alabama are di-
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Program Overview Issue Areas
Title V Program Benefits
rectly linked to actual emissions." [Jeff Kitchens, Alabama Dept. of Environmental
Management]
4. "Many sources are requesting that construction permits be modified in order to take
limits to avoid applicability of either Title V or other regulatory programs. Fifty fa-
cilities that originally applied for Title V permits have since dropped out by taking
voluntary limits, removing equipment, changing formulations, or rerouting equipment
through controls such as they are no longer considered major sources." [Doug
Campbell, Iowa Department of Natural Resources]
5. "... in SCAQMD although we have about 800 Title V sources, we have not experi-
enced Title V sources installing air pollution control equipment or utilizing other air
pollution control strategies to reduce their emissions solely in order to fall below the
Title V thresholds and consequently be out of the Title V program. Some sources
have requested and obtained facility caps to stay out of the program, but these are
typically sources that had emissions that did not reach Title V thresholds anyway."
[Mohsen Nazemi, South Coast Air Quality Management District, 2/7/05]
6. "Another benefit of the operating permit program has been that a significant number
of major sources have voluntarily restricted their operating conditions, and, in some
cases, installed pollution controls in order to reduce emissions and avoid Title V alto-
gether. This development, which may not have been anticipated by the drafters of Ti-
tle V, is similar to the environmental benefit that is achieved when sources install
controls or take other limiting actions in order that their emissions not subject them to
new source review requirements. A legitimate, documented facility choice to avoid
Title V achieves reduced emissions—the ultimate goal for all of us." [Bob Hodan-
bosi, Ursula Kramer, STAPPA/ALAPCO 3/31/05]
Compliance/Enforcement:
1. "Title V has also resulted in better compliance by major sources. Sources better
understand and pay attention to their permit requirements. The MDEQ has noted a
downward trend in the number of significant air violations at major sources and at-
tributes this to sources being required to certify compliance with all permit require-
ments." [G. Vinson Hellwig, Michigan DEQ, 2/28/05, p4-5]
2. "In particular, an example of how Title V has changed company practices is the
shifting of more environmental responsibilities to operations personnel. In the past, it
was common for environmental issues to be managed by the Environmental staff, al-
lowing company officials to maintain their attention on the operational and business
issues. The Title V program clearly shifted compliance accountability to the com-
pany executives. As a result, companies began to more fully integrate environmental
compliance with day to day operations. Now most companies view environmental
compliance as a key component of operating excellence and the responsibility of all
of the people involved in a company's business, from the executives to the plant op-
erators. For GPA members the changes brought about by the Title V operating per-
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Title V Program Benefits
mits program caused the modification of existing company practices. Many compa-
nies have accommodated these changes by implementing a number of new processes
all designed to heighten compliance assurance." [Gas Processors Association,
2/28/05, p3-4]
3. ".. .companies have discovered unfulfilled obligations... The result has been a general
clean-up of a variety of outstanding or unrecognized issues which also limits the li-
ability to sources from potential citizen suits or EPA enforcement action." [Doug
Campbell, Iowa Department of Natural Resources, 2/7/05, pl-3]
4. "Obviously it's a critical enforcement tool when the regulators are unwilling or unable
to enforce the law. It provides a Federally enforceable permit for citizens to take ac-
tion to protect themselves and their communities." [B. Nilles, Sierra Club]
5. "On the whole, however, Title V has had a beneficial effect on enforcement. Appro-
priate civil penalties, criminal penalties, and citizen suits are now potential conse-
quences of noncompliance. Inspections have been improved because of consolidation
of requirements in one permit and compliance report "checklists." And some State
and local permitting authorities have seen increases in compliance rates in complex
operations subject to multiple requirements because of the consolidation of all re-
quirements into one operating permit." [Robert Hodanbosi, Ursula Kramer,
STAPPA/ALAPCO, 3/31/05]
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Title V Program Costs
3.2 Topic: Title V Program Costs
Issue/Observation Description
Title V program costs have been identified as an issue by numerous commenters. In
general the view is that program costs far exceed the estimate used in the decision-
making process to develop the regulations. To a large degree this ties into the numerous
other issues that the Task Force has identified {i.e., those relating to streamlining the
overall process).
The types of costs identified by commenters include:
• State/Local Regulatory Agencies: development of program and approval, ongoing
program management, processing permit applications, modifications, and renewals,
public hearings, and report reviews. The intent is for permit fees to offset costs re-
lated to the permit program.
• Industry: application development, permit negotiations, hardware/software, compli-
ance assurance systems, ongoing permit management {e.g., reporting, updates), modi-
fications and renewals, added monitoring, and permit fees
• Citizen Group Participants: accessing and reviewing permits, including applications
and supporting documents, FOIA requests
To provide some perspective on expected program costs, in June 1992 EPA published the
Regulatory Impact Analysis for the operating permits regulations. The summary of
annualized administrative costs for the first 5-year implementation cycle were projected
as follows:
Table 3.2-1
Sector
$Million/Year
Industry
352
State/Local
160
EPA
14
Total
526
In addition, industry permit fees were expected to be $160 Million per year, offsetting
State/Local program administrative costs.
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Title V Program Costs
For more significant facilities, the basis that resulted in the $352M cost to industry was
summarized as follows:
Table 3.2-2
Source Type
Initial Burden
Recurring Burden
Facility
Annualized Costs
(5 year capital
recovery at 10%)
Major Large
Source
$54,945
(1221 hrs @ $45/hr)
$8,100
(180 hrs (a> $45/hr)
$22,594
Major Small
Source or Major
Toxics-specific
Permit
$30,150
(670 hrs @ $45/hr)
$3,420
(76 hrs @ $45/hr)
$11,373
The comments provided on this issue are summarized (detailed comments are in the
Supporting Information section) as follows:
• Three commenters noted that the costs to State/Local regulatory authorities is signifi-
cant. In particular, for agencies that already had permit programs Title V added cost
with little added benefit. There is also a continuing concern with increasing paper-
work requirements and the sufficiency of the current fees.
• Industry trade organizations and representatives provided detailed comments on how
added Title V-related initial and ongoing costs significantly exceeded Agency cost es-
timates. Institutionalized higher costs, particularly given that Title V is an adminis-
trative program versus an emissions reduction/control program, directionally impacts
competitiveness. While recognizing that the program was not established on a benefit
to cost basis, the perspective from those commenters bearing most of the costs (regu-
lated entities) is that the costs of the program far outweigh the benefits. The perspec-
tive is that it is possible to achieve the overall Title V program benefits at a cost sig-
nificantly lower than the current costs, and recommendations focused on ideas to
streamline the program and to avoid any program modifications that would further in-
crease costs.
• Very few comments on cost were provided by citizen group participants. To the
degree that costs (e.g., copying, FOIA-related, time/travel to access documents) in-
hibit the ability to participate in the Title V process, they are a concern.
Discussion Summary
The Task Force discussions reiterated that program costs have been significantly higher
than originally expected. It was noted by industry representatives that business competi-
tiveness necessitates a constant focus on cost management in all aspects of a business,
including environmental staff. It was also mentioned that resources dedicated to Title V
program process are not available to work on pollution prevention opportunities.
Some Task Force members felt that program cost is not a significant issue when viewed
in the context of cost as a percentage of a company's operating cost, and in many cases,
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Program Overview Issue Areas
Title V Program Costs
e.g., monitoring, companies often benefit from the additional information gained through
the program. The view was also expressed that it is not unusual for government pro-
grams to exceed original cost estimates. A counter comment suggested that exceeding a
budget should not be readily accepted; companies cut back expenditures for projects
regularly to stay within a budget and perhaps the government should take this approach.
Several ideas were discussed relating to a recommendation relating to examining pro-
gram cost. These included using information already available to the Agency that permit-
ting authorities provide, and using a "six sigma" approach to analyze cost issues in a
structured, prioritized manner. Three areas that were suggested that may provide the
greatest potential to reduce the costs of the program include monitoring, permit revisions,
and compliance certification process.
The Task Force discussed several recommendations related to cost and, recognizing that
a number of other recommendations in the Task Force report would, if implemented,
reduce cost and provide flexibility, discussed and voted on recommendations in three
areas:
• Sharing of best, or effective, permitting practices across regulatory agencies in order
to capture program benefits at lower costs. Two approaches suggested for considera-
tion included: sharing of practices via websites or using STAPPA/ALAPCO or EPA
workshops.
• Encourage EPA to consider costs and benefits in developing/implementing any future
program changes (guidance or regulatory). Recognizing that Title V was not devel-
oped based on a cost/benefit basis, this may not necessitate a formal analysis. How-
ever, an analysis of costs and benefits would help provide some prioritization of pro-
gam changes. Task Force members also suggested that costs and benefits be consid-
ered within the writeup of the individual issue papers.
• Utilize case studies, including interested parties in the analysis, to develop recom-
mendations to reduce costs or increase benefits. Task Force members felt that a case
study analysis shouldn't focus on costs only, but should look to identify and expand
benefits.
The Task Force also discussed permit fees, including whether the fees were sufficient and
how fees are set in different States. One Task Force member noted that EPA already has
the responsibility to audit State programs. No conclusions or recommendations evolved
from the discussions on permit fees.
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Title V Program Costs
Recommendations
Recommendation#!
EPA and State/local regulatory authorities should facilitate the sharing of best practices
related to permitting procedures (e.g., use of electronic databases, streamlined permit
revision procedures, public outreach) in order to capture program benefits at lower
cost/burden levels.
In Favor (17)*: Broome, Golden, Powell, Freeman, Hagle, Palzer, Morehouse,
Raettig, Hodanbosi, Wood, Keever, Schwartz, Paul, Sliwinski, Van Frank, Owen,
Kaderly
Opposed:
Abstentions:
Clarifications:
*Note: Number in parentheses () is the total number of Task Force members voting for this position.
Recommendation #2
EPA should incorporate considerations of costs and benefits in developing/ implement-
ing any future program changes (guidance or regulatory).
In Favor (11): Broome, Golden, Freeman, Hagle, Morehouse, Hodanbosi, Wood,
Schwartz, Paul, Sliwinski, Kaderly
Opposed (6): Palzer, Powell, Raettig, Keever, Van Frank, Owen
Abstentions:
Clarifications: EPA may consider costs and benefits without a formal analysis.
Recommendation #3
EPA should conduct case-studies relying on interested parties and should review the
written and oral comments provided to the Task Force to identify/assess the major
benefit and cost elements of the Title V program. EPA should use its conclusions to
develop recommendations to: 1) significantly reduce costs while maintaining key
program benefits, and 2) expand benefits without increasing costs.
In Favor (11): Broome, Golden, Freeman, Hagle, Morehouse, Hodanbosi, Wood,
Schwartz, Paul, Sliwinski, Kaderly
Opposed (4): Palzer, Van Frank, Owen, Powell
Abstentions (2): Raettig, Keever
Clarifications:
Supporting Information
State/Local Regulatory Agency Comments
1. "The Title V program has added significant complexity to our permitting program
because we had to overlay it on top of SCAQMD's existing permitting program. To
date the SCAQMD has spent more than 175,000 person hours and over $13 million to
develop and implement the Title V permit program. Overall full implementation of
the Title V program, including permitting, compliance, and support activities has cost
the SCAQMD over 235,000 person hours and at a cost of about $18 million. While
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Title V Program Costs
the Title V program may have some benefits in parts of the nation, for the SCAQMD
the Title V program has come at a significant draw on our resources and at an enor-
mous cost with very little or no air quality benefit." [Barry R. Walterstein, South
Coast Air Quality Management District, 3/31/05, pi]
2. "Similarly, the increasing costs and diminishing benefits of excessive Title V report-
ing of compliance-related data in the Air Facility Subsystem (AFS) should also be
recognized and corrected. We are concerned that EPA currently plans to require that
some partial compliance evaluations (PCEs) be inputted into the AFS system. This
has been, to date, a voluntary activity. Data reporting may also be required every 60
days rather than on a quarterly basis. It also appears possible that several new data
elements—high priority violator (HPV) violation discovery date, HPV Violation
code, stack test pollutants, and air program subparts—may also be required.
STAPPA and ALAPCO opposed all of these data requirements on the grounds that
the cost of such additional time-consuming staff work that is necessitated by these
data entry requirements vastly outweighs any possible benefits." [Robert Hodanbosi,
Ursula Kramer, STAPPA/ALAPCO, 3/31/05, p5-6]
3. "As more air pollution control has been required and the technology for emission
controls has become more complex, agency review has become more sophisticated
and involved. Creating flexible, yet effective permits is time consuming. As a result,
the $25/ton fee is insufficient to cover the costs of a comprehensive and effective Ti-
tle V program. New Jersey has raised its fees to ... roughly $90 per ton in 2004 dol-
lars." [William O'Sullivan, NJDEP, 2/28/05, plO]
4. "So my challenge to the Task Force is to identify ways to simplify this program now
before we get too far into the renewal of permits and generate even more paper that
does little or nothing to control air pollution. I would ask you to please listen care-
fully to those people that offer suggestions for simplification. Please resist those that
want to add even more requirements to this already burdened system, especially with
regard to insignificant emissions units. As a local agency director that is dealing with
a problem of limited resources and increasing demands, I want to have the option to
direct our limited resources to tasks that produce the greatest return in reductions of
air pollution."
"Then the inclusion of periodic compliance reports, some of which are monthly, some
of which are quarterly, and then some of which are then all repeated in the annual cer-
tification of compliance with every requirement in the permit. Add to this the genera-
tion of all these requirements, the agency obligation for inspections to insure that all
the listed requirements are being met on an annual basis, the review of all the periodic
reports that are submitted. RAPCA received last year 6,292 such reports. Then the
requirements to keep the written records of all the data and make them available for
public inspection. The increasing requirement to report all these inspections and re-
port reviews into the Federal electronic database and suddenly you find that the Title
V program is a multi headed monster. With regard to the reports that are filed the
6,292 I recognize that there are some agencies that will take these reports and simply
file them away. One of the principles that we have and our local agency is that if an
industry has to file a report, then we have an obligation to review that report and to
record our review and make a determination with regard to that. We take it seriously
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Title V Program Costs
when we ask for reports, compliance reports, because we know that's something that
we're going to have to review. So I'm personally very concerned with the time and
resources being spent on this program and the lack of corresponding benefit."
"[TJhere were already in existence at least 35 State or local permit programs across
the country when the Title V program began. For instance, as I mentioned earlier,
Ohio has had a permit to operate program since the early 1970s and it has worked
fine. There are areas of the country where the Title V purposes may have been al-
ready met. That's my point in pointing out that there were permit to operate programs
in areas that were working well. It may be that those purposes were already being
met and for such areas the Title V program represents a significant amount of work
with very little added value. In fact, it's our belief that for most of the country the Ti-
tle V program has quickly become one for which the work involved greatly exceeds
the value of the end product."
"The never ending search for the perfect permit is something which is especially
troubling for our local agency. We draft a permit. It's reviewed by the State. That
process there may take years. Then it's going to be reviewed by the region. Then it's
going to be reviewed by the public. Then it's going to be reviewed by the company.
Everyone has changes to it. It's very difficult to motivate people to write multi 100
page permits, get back hundreds of comments, make changes to those, and then repeat
that process, repeat that process, repeat that process. That's very difficult. And as a
local agency director I'm faced with this dilemma. Do I concentrate on having people
who are satisfied with doing that? Or do I want people who say, "This is crazy. This
is just paperwork. I want to control air pollution." There's a dilemma for us. You
can hire people who would be very good at that, very good at details. Write it, write
it, write it, write it. I would rather have people who can see the big picture, who are
more aggressive in actual air pollution control, actually meeting with people, actually
talking with complainants, actually looking at sources rather than spending time at
their desks."
"Additionally, I'm concerned that we have this growing perception in the air pollution
control field that somehow placing pages and pages of terms and conditions in per-
mits equates to control of air pollution or the equally troubling perception that if an
applicable rule is not included in the Title V permit, that it is somehow no longer en-
forceable. If this is true, how did we ever control air pollution before the Title V pro-
gram? How was it that we made such significant gains in air quality from 1970 to
1990? I will say this. It was not by having 20 percent of our people sitting at their
desks 40 hours a week writing permits, which average over 100 pages in length."
"Of the 39 full time personnel we have at RAPCA, 8 are assigned to the permit unit 6
permit reviewers, 1 permit clerk, and 1 supervisor. Remember, we're just a local
agency. We're not the State. That's over 20 percent of our resources."
"The inclusion of insignificant emissions units. At the Wright Patterson site there are
over 1,000 insignificant emissions units. Along with the applicable rules for each,
these alone take up 25 pages in the Wright Patterson permit and by definition are in-
significant. I talked to the permit writer before I came here about his experience with
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Title V Program Costs
that. He said it took him three weeks to sort out the insignificant emission units for
this permit." [John Paul, Dayton, Ohio Air Pollution Control Agency]
Industry Comments
1. "In the regulatory impact analysis for the proposed Title V regulations, EPA esti-
mated costs for the program to just over $100 million annually. In the final Title V
rule, EPA estimated the costs of the program at over $526 million annually. For the
34,000 sources that EPA estimated would need Title V permits, this amounted to
about $15,000 annually per permit. It is clear based on our experience that the aver-
age cost per source per year has been well over this figure."
"The Alliance asked members to review typical Title V costs for their facilities. We
looked at assembly plants as well as plants with other operations like casting, stamp-
ing, or metal parts manufacture. Comparing with EPA's approach of large major
sources and small major sources, we would expect that the assembly and large casting
plants would generally be considered large major sources and the stamping, compo-
nent, small casting, and other non-assembly operations would be small major
sources."
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Title V Program Costs
Table 3.2-3
Typical Auto Industry Title V Costs
Type of Plant
Large Plants Assembly/
Integrated or Large Casting
Small Plants
(typically stamping,
component, etc.)
Initial Application
Average Cumulative Cost:
$167K
Average Cumulative
Cost using Mode for
Outside Legal Costs:
$106K
Modification Costs
Average Cost per Administra-
tive Amendment: $5K
Average Cost per Minor Modi-
fication: $7.5K
Average Cost per Significant
Modification: $14K
Not enough modifica-
tions processed as yet
to provide meaningful
data for responding
facilities
Additional Monitoring
Equipment, Calibrations,
Stack Tests, etc.
Most reported value $10K,
Highest reported value $250K.
Costs involved additional stack
testing, additional interlocks
and other monitoring equip-
ment not required by applica-
ble rules.
Average cost: $28.5K/year
Ranged from $5K to
$100K/year
Additional Ongoing Ad-
ministrative Costs (moni-
toring observations,
Recording data, data re-
view, Reporting)
Average: $38K/year
Insufficient data
Fees
Average $60K/year
Average $20K/year
Total Ongoing Costs
$148K
$25K to $125K
"Conclusions:
• Costs for assembly plants from application to issuance were on the order of
$170,000, as compared with EPA estimate of $55,000. Assembly plants are rela-
tively straightforward to permit as compared with complex chemical plants so we
believe that these costs represent the lower end of actual experience by industry.
Costs for component and other plants from application to issuance were just over
$100,000, as compared with EPA estimate of $30,000.
• Ongoing costs for assembly plants are on the order of $150K per year including
fees (assuming one minor and one significant modification each year which we
believe to be typical), and some plants experienced much higher ongoing costs
approaching $300,000 annually. EPA's estimate by comparison was $8,100 per
year plus fees for a large facility. Not counting the fees, EPA's estimate was one-
tenth of our experienced costs for a large plant. For smaller facilities, the ongoing
costs were more difficult to estimate. At least one small facility experienced ap-
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Title V Program Costs
proximately $100,000 additional monitoring recordkeeping and reporting costs,
and all facilities experienced some increased costs. Regardless of the exact level
of ongoing costs for small facilities, when questioned, facilities believed their
costs exceeded the $3,420 EPA estimated.
• Permit fees are a significant expense at approximately $60K for assem-
bly/integrated plants and $20K for smaller plants." [Alliance of Automobile
Manufacturers, 3/31/05]
2. "The cost of implementing the Title V program greatly exceeds the cost estimates
made by Congress and by EPA at the time the Part 70 rules were adopted. As a re-
sult, Lilly believes that EPA and State permitting authorities must be vigilant in im-
plementing practices that are cost-effective and ensure the program costs do not ex-
ceed the administrative benefits of the program. Cost efficiency of Title V is particu-
larly important because Title V is an administrative program and it is not designed to
have a direct impact on emissions."
"Below is a description of the some of the costs Lilly has incurred since 1994 in im-
plementing the Title V program at our three largest facilities, two of which were is-
sued their Title V permits in 2004."
Table 3.2-4
Task
Cost to implement
Developing and submitting Title V permit applications
$1.5 million
[approximately
$500,000 per site]
Maintaining the accuracy of the application and submitting
updates to the permitting authority
~ $120,000
Working with the agency to develop a draft permit;
commenting on draft permit
~ $240,000
Creating and implementing compliance management
systems, including a comprehensive computer database
system that provides a structure for day-to-day compliance
and generating reports
~ $2.5 million
Title V gap-filling monitoring
~ $100,000
Developing and submitting quarterly compliance reports and
annual certifications
~ $250,000
Maintaining the accuracy of the permit through permit
amendments and modifications
~ $60,000
Payment of annual Title V permit fees
[1994-2005]
~ $2.5 million
Total
~ $7 million
"These figures only include the easy-to-determine costs of implementation. There is
a significant hidden cost to implementing the program, namely in the form of the day-
today actions of site production personnel (as opposed to site environmental staff) as
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Title V Program Costs
they take readings, record observations, and review information needed to identify
deviations and compile reports."
"Lilly's cost for these three facilities has been approximately $233,000 per year, and
most of this is for activities that occurred prior to obtaining the permits. In addition,
this is an average cost per year. In many years, there was very little activity at our
sites because the permit application was submitted but the agency was not actively
reviewing the application or writing the permit. Our monitoring and reporting costs
will go up. We have not yet attempted to quantify the cost of preparing applications
for and obtaining permit revisions. We expect our ongoing costs, including permit
fees, to be in the $200,000 to $500,000 per year range for each of these facilities."
"As these estimates illustrate, Title V has cost Lilly significantly more than the ap-
proximately $15,000 average cost per facility per year cited by EPA in the preamble
to the final 1992 Title V rules. It is also significantly higher than the $9,700 per
source estimate derived by EPA in a 2004 Information Collection Request re-
newal. [Information Collection Request for Part 70 Operating Permits Regulations,
April 2004, EPA #1587.06]"
"Lilly is providing these estimates not just to show that Title Visa costly program,
but to serve as a reminder that any recommendations of the Task Force should con-
sider the cost of implementing that recommendation. Recommendations that reduce
cost and improve efficiency of the program are welcome. Recommendations that will
increase the cost or decrease efficiency should be considered in light of the already
high cost of implementing what is mostly an administrative program." [Bernard Paul,
Eli Lilly, 3/31/05]
3. "The implementation of the Title V program has resulted in costs that far exceed
original estimates with no significant environmental benefit, along with significant
delays in issuing permits and modifications. The net effect has been an inefficient
use of capital and workforce resources."
"EPA estimated the initial burden costs (interpreting regulations and generating data
and information needed for the first permit application) as ranging between $30,000
and $55,000 for large sources. Council member companies report initial costs sig-
nificantly higher at $35,000 to $3.3 million. Member companies' cost data did not
include additional investments in computer hardware/software to manage the pro-
gram."
"More significant, and more important because it results in institutionalized higher
costs, are the recurring costs of the program. For member companies, these typically
include costs for a site Title V Coordinator, permit changes/corrections, added sys-
tems costs, report preparation, legal reviews, public notices and hearings, multi-level
compliance tasks and management reviews of Title V compliance systems and issues.
EPA estimated these annual costs at only $3,000 to $8,000 per facility. Member
companies report costs in the range of $50,000 to $200,000, which is significantly
higher than EPA's estimate."
"The implications of the major understatement of costs on industry are significant.
EPA estimated that the annualized costs to industry in the first five years as $352 mil-
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Title V Program Costs
lion. Extrapolating chemical industry experience to other industries, which is appro-
priate given other feedback we have received, suggests that the cost of the program is
closer to $2-5 billion dollars per year. In a competitive business environment, com-
panies need to find ways to offset these costs to maintain competitiveness."
"Clearly the program costs have far exceeded EPA's estimates and warrant action.
The Title V program has had a minimal, if any, impact on air emissions, since Title V
is not an emission reduction regulation. The Title V program has resulted primarily
in a more visible set of requirements that are more accessible to the public and
strengthened compliance assurance systems. This is an extremely costly program
given that it has little to no emission reduction benefits associated with it."
Two structural changes suggested were:
"1) Develop a "Write Your Own Permit" program (WYOP). This would in-
volve EPA or a State establishing an electronic Title V template and then hav-
ing the facility complete the template with the applicable rules, emission
sources, and other requirements. The permits would continue to be subject to
the same public notice requirements, and State permit engineers would con-
tinue to review the permits and include any required monitoring. The benefits
of this approach include a more accurate permit, reduced effort on State per-
mitting staff, and lower costs. New Jersey is one State that is piloting this
program. In the pilot, NJDEP allows a facility to write its own permit with
NJDEP oversight and input. The product is a better permit and more reason-
able conditions and shorter turnaround for review/approval.
2) A more fundamental change that is consistent with the goal of Title V
would be to modify the regulations to allow each site to prepare a list of appli-
cable requirements by emission source, make the list available to the public,
and certify compliance and report deviations on the prescribed time schedule.
The document would be available for review by the public and State. The in-
corporation of new regulations or other changes to the permit would be noted
and a revised list of applicable requirements would be made available in an
expeditious manner. This approach would eliminate the customized general
and specific conditions currently added into permits that dramatically ratchet
up costs and the time required to complete permits. The result of this ap-
proach would be a significant cost savings for State permitting authorities and
regulated entities, along with up-to-date facility requirements."
Other suggestions included:
• "Establish a national electronic permit template that would give States and facili-
ties the ability to incorporate Federal regulations on a uniform basis while allow-
ing for the data entry of relevant State regulations and facility process units."
• "Limit the conditions that States add to permits to those that are supported by
regulatory authority, are directly related to the applicable standard, and are neces-
sary to ensure reasonable compliance with the applicable standard."
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• "Eliminate public notice for minor permit revisions."
• "Establish a simplified permit renewal process. Renewals should be automatic
with a public notice period and with the incorporation of new requirements. Re-
newals could also be automatic at an earlier time. For example, §502(b)(9) of the
statute already allows for certain permit revisions to be treated as a permit re-
newal if they comply with the requirements of the renewal section of the statute."
• "Annual certification reports should be "by exception" rather than a line-by-line,
permit condition by permit condition affirmation of compliance status."
[American Chemistry Council, March 31, 2005]
4. ".. .the startup costs of the program for sources required to submit permit applications
quickly got out of control. EPA soon recognized that even at the application stage,
this program was costing far more than either Congress or EPA had envisioned. EPA
took action to alleviate the most immediate aspect of the problem, application costs
by issuing White Paper No. 1. This White Paper clarified that extensive and costly
emission inventories were not required by Title V."
"In 1995, Chairman Dingell also expressed concern regarding the rising costs of this
program:
In 1990, the Congress envisioned Title V as a modest tool for bringing some
clarity to the world of stationary source regulations under the Federal and
State clean air programs. While the goal of consolidated source requirements
and eliminating duplicate and overlapping provisions is a good one, it may not
be worth the billions of dollars that EPA seems to want the program to cost.
(May 18, 1995 hearing)
Since that hearing, the costs of this program have only increased. Permit issuance
costs are in the hundreds of thousands of dollars for medium-sized industrial plants.
Fees are upwards of $50,000 a year. Reporting, monitoring, and certification re-
quirements are imposing significant costs. The Forum recognizes that some of these
costs are necessary requirements to sustain even the most streamlined program.
Nonetheless, any evaluation of how the Title V program is working involves two
components:
• First, is it achieving its intended purposes?
• Second, what price are we as a country paying to achieve these goals and is it
worth it?"
"We encourage EPA to consider whether these costs are consistent with what was ex-
pected when the 1990 Amendments were enacted and when EPA issued the Title V
rules. We also encourage EPA to consider whether the primary benefits of the Title
V program could have been more cost-effectively achieved through a simple re-
quirement for sources to submit an annual compliance certification through which
they would list applicable requirements and certify their compliance. In other words,
was there a better way? Was a comprehensive bureaucratic program truly necessary?
Although it is impractical to eliminate the program in favor of a simple certification
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Title V Program Costs
requirement, EPA can ask what can be done to bring these costs in line with original
expectations and make implementation changes that reduce costs going forward."
[Charles Knauss/Shannon Broome, Air Permitting Forum, 3/31/05]
5. "Congress enacted Title V of the Clean Air Act in 1990 to achieve an objective that is
straightforward and simple in principle - to consolidate and clarify in an operating
permit applicable clean air requirements established under other Federal programs.
Title V also authorizes adoption of certain requirements to assure compliance with
applicable requirements."
"Congress expected, and EPA predicted, that the costs sources would incur in prepar-
ing and obtaining permits would be modest. The costs that sources have actually in-
curred and still are incurring in obtaining initial permits vary greatly, but for all they
have been substantial and for some in excess of several million dollars for a single fa-
cility. The ongoing costs of meeting Title V requirements by revising permits, under-
taking new monitoring, submitting monitoring reports and compliance certifications,
and renewing permits also will be far greater than Congress envisioned."
"CAIP members recognize that there are limited benefits of assembling requirements
in a single permit, but feel strongly that the associated costs greatly exceed the bene-
fits. EPA and States should take steps to streamline permitting-related activities and
reduce costs to the maximum extent possible." [Bill Lewis, Clean Air Implementation
Project]
6. "In the preamble proposing the Title V rules, EPA anticipated that the Title V pro-
gram would provide more efficient implementation of the Act, including improved
enforcement, enhanced State air program resources, and a streamlined process for re-
vising air pollution control requirements. Almost 14 years later, the Title V program
has accomplished few of the stated goals of the program. Rather than improving effi-
ciency and streamlining requirements, Title V has required an inordinate expenditure
of time and resources on minutia, process, and paperwork, and has resulted in rein-
vention, rather than ministerial collection in a single document, of existing applicable
requirements."
"In Ohio, to date, over $146 million has been collected in Title V permit fees, for a
program that has issued just under 700 final permits. That equates to roughly
$210,000 per permit, not including the time and money spent by companies to pre-
pare their permit applications and to comply with their permits. This also does not
include the costs incurred in other contexts - for example, business lost by companies
waiting for construction permits, the issuance of which was delayed by the fact that
agency resources were focused on meeting Title V objectives. For a program that
was intended to merely collect existing requirements, not to create new requirements,
something has gone awry." [Jack R. Pounds, Ohio Chemistry Technology Council,
Ohio Manufacturer's Association, Chamber of Commerce, 3/31/05]
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Title V Program Costs
7. "Regarding fees, this topic is of particular interest to CE because we have been sub-
ject to the highest fees in the nation, currently approximately $90/ton, for 10 years,
paying over a $1 million annually for two facilities, which still have not been issued
Title V operating permits, despite having submitted administratively complete appli-
cations 10 years ago. This is a serious failure of the program administration, which
could greatly benefit from an adherence to the intent of the Title V program and a
streamlining of the permit process." [Gary Helm, Conectiv Energy, 3/31/05]
8. "Our own experience at one of our component plants was that the initial application
was $75,000. We had two modifications at about $15,000 per year. We added per-
sonnel for monitoring, which was another hundred thousand per year. The plant in-
stalled warning lights, interlocks, et cetera, at about $150,000 in capital costs — But
when we looked at our five-year annualized costs for two plants, basically they were
well over $100,000 per year." [Debra Rowe, Alliance of Automobile Manufacturers]
9. "We did a quick check with a group of our members and found that their application
and permit development costs, excluding permit fees, ranged from $50,000 to
$650,000 per facility, with the average being about $250,000. These estimates do not
take into account a more significant and generally hidden cost of the program; and
that's the opportunity cost of delays in implementing plant changes that are needed to
meet market requirements." [David Farabee, API]
10. "In the years since the Emissions Fee program was initiated, we have spent
$635,000... We have not reduced our emissions by as much as one ton." [Wayne
Penrod, Sunflower Electric Power Association]
Citizen Group Comments:
1. "In my viewpoint, there's absolutely no reasonable copy fee. I work in a lot of envi-
ronmental justice communities and, if we have to start paying for copying charges,
nobody would ever make any more comments on Title V. It's impossible." [Verena
Owen, 6/25/05 Washington meeting]
2. "The cost of the FOIAs is prohibitive. And I don't think necessarily benefits the EPA.
I will tell you the standard that I refer to is Kinko's. They're open 24 hours a day, 7
days a week. They pick up, they deliver, they do it while you stand there. And they
do it for 7 cents a page. So if the EPA's got to charge me a quarter a page, or God
forbid 50 cents a page, it's obviously deliberately obstructive. You're not supposed to
be making a profit on this. I don't mind maybe helping you recoup your costs, but I
do mind having it become fiscally impossible for us to do this; particularly while at
the same time the EPA was not charging fees to the industry for all these construction
permits that we were all running around working on. So the industry gets a big free
ride, but I have to pay for my FOIAs. There's something wrong here." [Susan Zingle,
Lake County Conservation Alliance, 9/15/04 Chicago meeting]
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Content Issues
Incorporation of Applicable Requirements
4. Content Issues
4.1 Topic: Incorporation of Applicable Requirements
Issue/Observation Description
One of the issues raised by the public, the regulated community and permitting authori-
ties is the level of detail that must be included about applicable requirements in the Title
V permit, particularly with respect to inclusion of complex Federal MACT standards.
Some permitting authorities have been advised by EPA that the MACT rules cannot be
incorporated by reference. Instead, the specific language from the rule must be included
in the permit. In an attempt to avoid excluding an applicable requirement, some permit-
ting authorities attach the entire MACT rule to the permit, which leads to permits with
excessive length, undue complexity, and a drain of resources in permitting time and
copying expense. In addition, some permitting authorities have incorporated MACT
requirements by paraphrasing the rule in an attempt to simplify and clarify the applicable
requirements. Permittees are concerned that such paraphrasing inappropriately and unin-
tentionally constrains the flexibility and reduces the compliance options provided in the
rule. The public and some regulatory representatives are concerned that paraphrasing
MACT requirements could lead to the incorporation of incorrect requirements into a
permit.
Another issue arises from the incorporation of minor or major new source permits into
the Title V permits. Many States have a history of issuing construction permits dating
back to the early 1970s. Many terms and conditions of these preconstruction permits
became applicable requirements under Title V. Rather than incorporating each applicable
term and condition from these preconstruction permits, some permitting authorities have
simply referenced the preconstruction permits by number in the Title V permit without
identifying which specific terms or conditions remain applicable. Older preconstruction
permits are often difficult to locate, because of the length of time passed since the permits
were issued.
Testimony and Comments Received
A large number of comments were received regarding the incorporation of applicable
requirements.
With respect to the incorporation of Federally promulgated MACT standards, most com-
menters indicated that MACT requirements should be incorporated by citation to appli-
cable requirements, although there was recognition that reference solely to a subpart
might not be specific enough to identify the applicable requirements. Three commenters
noted that in some cases a source may seek to clarify how a particular rule requirement
applies to a particular unit but these commenters also endorsed a citation-based incorpo-
ration of MACT standards.
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Content Issues
Incorporation of Applicable Requirements
Commenters also recognized that inspectors and members of the public have an interest
in understanding how a MACT standard applies to a particular facility. Commenters
noted that informing the public and aiding inspectors are both worthwhile goals but
objected to using the permit document itself to achieve them. They noted that the permit
is a legally enforceable document with which the source must certify compliance; it is not
an educational tool. Commenters suggested using documents that are not a part of the
permit to achieve these goals, such as the statement of basis or an enforcement checklist
that is developed during the permit issuance process. They noted that this approach
would ensure that a high level description is available to the public regarding source
obligations and would allow for guidance that an inspector could follow to review the
facility operations.
The commenters also noted several problems associated with approaches that are not
citation-based:
• Lack of time and experience to "translate " a standard: MACT standards are com-
plex and apply to complex facilities. EPA technical experts have spent considerable
time crafting MACT rule language, and it is not reasonable to expect a permit writer
to translate or rephrase such a requirement and do so accurately without changing the
meaning of the rule.
• Workload for permittees and State permitting authorities: Checking to make sure
requirements have been accurately transferred to the permit when rewritten verbatim
or when rephrased has been extremely resource intensive and has delayed permit is-
suance. Recreating the MACT in the permit has also been time consuming for State
permitting authorities.
• A risk of error which would create unintended conflicts between the requirements of
the permit and the underlying rule.
• Enforcement risk. When a permit conflicts with an underlying rule, sources risk
enforcement jeopardy if they comply with the permit instead of the rule (or the rule
instead of the permit).
• Extremely lengthy permit that is not easily understood. Even though the goal of
putting detail into the permit is often to make it more easily understood, the shear
bulk of the permit with every element of a MACT rule included can make the permit
difficult to follow and understand. In addition, when a CFR or Federal Register sec-
tion are added to the permit, it does little to aid understanding of the permit require-
ments and creates an extremely cumbersome document.
One commenter pointed to the Part 75 regulations as an example of how citation-based
permit writing has worked in another context, noting that, like MACT standards, these
rules (1) contain voluminous and complex regulations for emissions monitoring require-
ments for the Acid Rain and NOx Budget Trading programs, (2) include multiple compli-
ance options that can be used by an affected source at its option, and (3) have been sub-
ject to frequent revision (promulgated in 1993; revised in 1995, 1998, 1999, and 2002 to
date). The commenter noted that virtually all permitting authorities use a citation ap-
proach to include Part 75 requirements in Title V permits and that no problems have been
reported from use of the citation approach.
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Content Issues
Incorporation of Applicable Requirements
Numerous commenters indicated the need to protect the flexibility that is promulgated in
underlying applicable requirements, like MACT standards, when including the standard
in a Title V permit. Commenters indicated that the standards themselves provide proce-
dures for changing among compliance options and included several examples of the types
of flexibility and procedures provided for in the rules. Commenters also indicated that
some permit writers were requiring selection of a compliance or monitoring option at
permit issuance and that a permit revision was required to make any changes. They
indicated that the requirement to implement both the MACT procedures and a separate
Title V revision could negatively impact their operations. They also stated that the pro-
cedures associated with compliance options had been part of the MACT rulemaking and
that limiting these options constituted a new substantive limit on their operations which
was not allowed under Title V.
With respect to incorporation of requirements contained in preconstruction permits, oral
testimony indicated that some States are using citations to incorporate applicable re-
quirements from the permits. Commenters were concerned with this approach because,
unlike promulgated rules where the documents can be readily obtained, the construction
permits may not be available to the public. Thus, commenters recommended that appli-
cable requirements embodied in construction permits be directly transferred into the Title
V permit. The construction permit would still be cited as the authority for the term as
required by 40 CFR 70.6(b), but the actual requirement would be reflected in the permit.
Overall, commenters favored a more streamlined method for incorporating applicable
requirements that would preserve their compliance flexibility, but they did not object to
utilizing other documents to enhance public awareness and facilitate compliance inspec-
tions.
Discussion
Incorporation of MACT and Other Rules: The Task Force spent considerable time
discussing the best way to incorporate applicable requirements, with a particular focus on
those contained in MACT standards and construction permits. MACT standards became
a focus of discussion because they typically are the most recent and most voluminous
standards incorporated into Title V permits. Not surprisingly, incorporation of MACT
standards was the subject of much of the public input on this issue. The Task Force
recognized, however, that the approach for including applicable rules in permits raises the
same issues whether the rule is a MACT or an NSPS or any other rule-based standard.
Some members of the Task Force indicated that this issue may not have been as impor-
tant with NSPS simply because they are so much less detailed than the MACT standards
and contain fewer references to other subparts than the MACT rules contain.
Industry, environmental group, and State representatives on the Task Force all raised
concerns regarding the potential for paraphrasing a standard in a permit to change the
regulatory requirements. One State representative, however, expressed a strong view that
it was important for the State and the facility to agree on what a particular MACT means
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Content Issues
Incorporation of Applicable Requirements
at that facility. Others believed that it can be helpful to an understanding of the permit
overall if the permitting authority provides a plain language explanation of the MACT
requirements at a facility but thought that this explanation should be in a supporting
document, such as the statement of basis, rather than in the permit itself. These members
were concerned that paraphrasing in the permit could inadvertently create new legal
obligations that do not exist in the rule (which could be either more or less stringent than
the rule) and that making a rule understandable to interested parties is a different goal
than ensuring that the permit is accurate.
Some Task Force members were also concerned about the extensive resources that are
required to review every permit term containing translated MACT language to ensure that
a purposeful or inadvertent change had not been inserted. They believed that such review
is one reason permit issuance has been delayed. Since a significant number of MACT
standards have recently been issued and will be incorporated into Title V permits for the
first time, concern was expressed that continued paraphrasing of MACTs could result in
worsening the problem of delayed issuance. These members viewed the simplification of
incorporating MACTs and other standards in permit by using a high level citation-based
approach as a potential streamlining method in States that have previously used the para-
phrasing approach.
Incorporation of Construction Permit Requirements: The discussion on this topic was
focused primarily on States that have used citations to construction (SIP) permits to
establish the applicable requirement in Title V permits. The problem with this approach
is that many of the older construction permits are not easily accessible to the public and
in some cases are difficult to locate at all. Therefore, there was general agreement that
the best approach is to include the currently applicable terms of construction permits
directly into the Title V permit without using citations. Some Task Force members be-
lieved that citations should be allowed if the construction permits are readily available
(which could be true with more recent construction permits).
Recommendations
Incorporation of MACT and Other Rules:
Recommendation #1
Citation Approach. Permitting authorities should use a citation approach to incorporate
applicable requirements in MACT and other regulations into Title V permits.
In Favor (13)*: Broome, Palzer, Golden, Paul, Freeman, Hagle, Schwartz, Morehouse,
Owen, Raettig, Hodanbosi, Wood, Van Frank
Opposed (2)*: van der Vaart, Sliwinski
Abstentions (3)*: Kaderly, Powell, Keever
Clarifications: Within the citation approach, some members prefer a general citation and
others a detailed citation. Task Force members voted for each sub-recommendation
that they deemed acceptable (which may have been both).
*Note: Number in parentheses () is the total number of Task Force members voting for this position.
FINAL REPORT 37 April 2006
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Content Issues
Incorporation of Applicable Requirements
Recommendation #l(a)
(ieneral Citation Approach. Permitting authorities should use general citations as an
acceptable way for incorporating MAC "I and other rules as applicable requirements in
Title V permits A general citation example is
Source P
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Content Issues
Incorporation of Applicable Requirements
(Recommendation Ifhj continued)
(ien era I C ompliance Requirements: 4o ( IR ^ (v 3 I no.
. \pplicahle /'arts of the (ieneral Provisions: 4o ( IR ^ h3 I o |
Initial Compliance Demonstration and Performance Tests: 4o (IR ^ (v 3l5o-
3152: 4o ( I R ^ h3 3lwi-3IM. 4o ( IR h3.3 Uv-3 lhX. 4o ( I R f*3 3 I 7o-
3171
Sotifications: 4o ( IR ^ (v 31 |o
Reports: 4o ( IR ^ fv 3o:o.
Reference Tesl Methods, Recordkeeping :tiul Monitoring: On and alter the cunipli-
ancc dalc(s) spociTied in 40 ( IR ^ (v 30X3. lor emission unils in the flexible (inuip
Auto \l.\( I . the permittee sluill comph wilh the appliciihk- requirements lor reference
k'sl methods. recordkeeping and monitoring of the National Emission Standards lor Haz-
ardous Air Pollutants Surface ('online ol Automobiles and I.il:hl-Dnls Trucks. 4o ( IR
I'url fv. Snhpiirl Mil Please rcl'cr lo the following scclions of the rule
Initial Compliance Demonstration and Performance I'ests: 4o (IR ^ (v 3l5o-
3152. 40 ( I R ^ h3 3lwi-3IM. 4o ( I R fvv3 Uv-3 IhX. 4o ( I R fv 3 I 70-
3171
Records: 40 ( I R ^ f,3 3 13o and 40 (IR ^ fv 3 13 I
This detailed citation enhances iinderstandinu of the applicability of the rule In cilinu the
particular portions of the rule directly applicable lo the particular emission unit, but
preser\ es compliance options that are a\ ailable under the standard
Althouuh all of the MAC T rules are readily accessible electronically, it is also recom-
mended that the permittinu authority make the rule a\ ail able, upon request, lor those who
may not ha\e electronic access
Permittinu authorities, the public or the permittee may desire a translation of the technical
lanuuaue in the rule so that they can better understand how the rule applies to the particu-
lar facility This translation can be included as additional narrati\e in the Technical
Support Document or Statement of Basis for the permit, but should not be included in the
permit itself, because of the risk of inaccuracies that may inad\ertently chanue applicable
requirements A citation approach does not preclude the source from requesting clarifica-
tion in the permit of a particular pro\ision of the rule that may be ambiuuous Such a
clarillcation would be focused on a particular pro\ision rather than expending resources
lo recast an entire MACT rule
/// l-'aror (N): Broome. Pal/er. (iolden. Paul. ITeeman. I lade. Schwartz. Morehouse.
Owen. Raettiu. Ilodanbosi. Wood. Kee\er. Van I-rank
Opposed (3): \ an der Vaart. Sliwinski. Powell
Abstentions (I): kaderly
Clarifications: Powell clarifies that she would not oppose this approach if the permit
specified which of the standard s options are applicable at permit issuance and then
required notice ifchanues are made kee\er joins Powell s clarillcation
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Content Issues
Incorporation of Applicable Requirements
Recommendation #2
Paraphrasing Approach. MAC "I unci oilier rules should he incorporated into l he Title V
permit using a narrati\e approach that paraphrases the requirements and explains to the
puhlic and the permittee how the standard applies to the particular source If se\eral
options are presented in a standard, the source should he required to State which are
applicable at permit issuance and then pro\ ide notice if changes are made
/// l-'aror (3): \an der Vaart. Sliwinski. Powell
Opposed (N): Broome. Palzer. Ciolden. freeman. I lade. Schwartz. Morehouse. Owen.
Raettig. Ilodanhosi. Wood. Kee\er. Kaderly. Van 1'rank
. I Intentions (I): Paul
C 'larifications:
Old Construction Permits. One of the larger obstacles that permitting authorities faced
for the initial round of Title V permits was locating and incorporating all of the construc-
tion permits issued over 20 plus years into the Title V permit. Since nearly all of the
initial Title V permits have been issued, and this problem has been addressed in one
fashion or another, this issue may be of less importance.
Recommendation #3
Permitting authorities should incorporate currently applicable requirements from con-
struction permits into the Title V permit by restating the terms of those permits in the
Title V permit document The source can request a permit shield (under Section
7<) (Mf)( I )(ii)) for nonapplicahilily of any terms of a construction permit not included in
the Title V permit The Title I Title V Interlace Paper contains discussion and recom-
mendations on "cleaning up" obsolete construction permit terms The only situation in
which terms in a construction permit should be included in a Title V permit using a cita-
tion approach is il'lhe construction permit is readily a\ ailable to the public
In Favor (16): Broome. Palzer. Ciolden. I'reeman. I lagle. Schwartz. Morehouse. Paul.
Owen. I lodanbosi. Wood. Kee\er. Kaderly. \an der Vaart. Sliwinski. Van I'rank
Opposed (2): Powell. Raettig
. 1 hstentions:
Clarifications: Powell clarifies that she supports the first two sentences of this
recommendation, but opposes the last sentence because she does not belie\e it is e\er
appropriate to use a citation approach for incorporating construction permit
requirements into a Title V permit Raettig joins Powell's clarillcation
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Content Issues
Insignificant Activities and Emission Units
4.2 Topic: Insignificant Activities and Emission Units
Issue/Observation Description
What This Paper Addresses: An issue repeatedly presented to the Title V Task Force is
how small and insignificant activities and emission units should be treated in Title V
permits. The debate revolves largely around the appropriate balance between the burden
imposed on the program (via State agencies and regulated sources in terms of administra-
tive costs, as well as associated monitoring, recordkeeping and reporting) for small and
insignificant emission units and activities that have minor impacts in terms of air quality
on the one hand and the statutory and regulatory provisions for including "all applicable
requirements" in the permit and requiring monitoring and compliance certifications, on
the other. The issue requires consideration of numerous factors including the pace at
which permits have been issued and ongoing permit revision burdens, as well as the
potential cumulative impact of insignificant units and activities.
Legal Requirements: In the development of the Title V program regulations, EPA rec-
ognized the need to provide an exemption for smaller emission units and lower emitting
activities, noting that there are "levels below which there is no practical value in conduct-
ing an extensive review" in developing the permit. 57 Fed. Reg. 32273. While noting
that the statute does not address insignificant units and activities, the Agency indicated
that such "exemptions minimize unnecessary paperwork and reduce the need for sources
to conduct analysis of all emissions regardless of the amount involved" and that "[s]uch a
position is also supported by the Alabama Power decision." Id.
Thus, in the final Part 70 rules, EPA provided under 40 C.F.R. 70.5(c) that, "the Admin-
istrator may approve as part of a State program a list of insignificant activities and emis-
sions levels which need not be included in permit applications." The rule adds, however,
that "for insignificant activities which are exempted because of size or production rate, a
list of such insignificant activities must be included in the application." Moreover, "an
application may not omit information needed to determine the applicability of, or to
impose, any applicable requirement, or to evaluate the fee amount required under the
schedule approved pursuant to [section] 70.9 of this part." 40 C.F.R. § 70.5(c). This
section continues, noting that "the permitting authority may use discretion in developing
application forms that best meet program needs and administrative efficiency" so long as
certain prescribed elements are included. With respect to emissions-related information,
however, the rule States that "a permit application shall describe all emissions of regu-
lated air pollutants emitted from any emissions unit, except where such units are ex-
empted under this paragraph (c) of this section, " such that emissions information is not
required by the rules for IEUs.
The intent to simplify actions related to these units and activities was reiterated in a
White Paper issued on July 10, 1995, relating to the Title V program, subsequently re-
ferred to as White Paper No. 1. White Paper for Streamlined Development of Part 70
Permit Applications (July 10, 1995). Besides reiterating State flexibility in 40 C.F.R.
§ 70.5 to tailor the level of information required in the application to determine applica-
ble requirements, White Paper No. 1 included a list of so-called "trivial activities" that
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Content Issues
Insignificant Activities and Emission Units
could be completely omitted from the application even if not included in a list of insig-
nificant activities approved in the State's Part 70 program.
White Paper No. 2, White Paper Number 2 for Improved Implementation of the Part 70
Operating Permits Program (March 5, 1996), addressed in more detail the White Paper
1 insignificant activities and contained some indication of EPA's reinterpretation of its
Part 70 rulesthat were addressed more fully in Western States Petroleum Association
(WSPA). et al.. v. Environmental Protection Asency. et al., 87 F.3d 280 (9th Cir. 1996),
and EPA's subsequent response. However, even White Paper No. 2, consistent with the
policy stated in the Part 70 preamble, deferred to State discretion and addressed how Title
V permits might be written in a generic manner with regard to insignificant activities
subject to generally applicable SIP requirements and that it was possible to provide for no
additional monitoring (beyond that provided in the applicable requirement itself).
In the operation of the Title V program, some States simply identified the insignificant
emission units in the section of the permit that included requirements enforceable only by
the State (the "State-only" side). This was done to provide an easier approach toward the
modification and certification process (since certification was not required for State-only
requirements) and to devote resources to the emission units with the greater air quality
impact. Recently, Region 5 has identified the manner in which at least one State (Ohio)
is deficient. It is Region 5's current position that all insignificant emission units must be
in the Federally enforceable section of the permit (the "Federal side"), and must identify
any applicable requirements. This means that the State must list all such units and the
applicable regulatory requirements.
Testimony and Comments Received
Many comments were received on the issue of how to address insignificant emission
units in the Title V permit. Most of these comments expressed concern about the level of
resources being spent on insignificant units and activities and the resource drain that
creates at the State agency and at a facility in terms of addressing and ensuring compli-
ance by significant emission units. One local agency commenter noted the limited re-
sources available and asked that he have the option to direct limited resources to tasks
that produce the greatest return in reductions of air pollution, noting that resources being
spent on insignificant activities were preventing inspectors from going out to the field to
inspect significant sources for compliance. See, e.g., Comments of John Paul at June
2004 Task Force Meeting, OAR-2004-0075-0083.
One commenter pointed out that as a typical profile of a source 75 percent of emissions
come from 30 percent of the units at a plant while 25 percent of the emissions come from
70 percent of the units. He noted that "from an environmental standpoint, from a cost-
effectiveness standpoint, it makes sense to spend the time, the effort on the 75 percent of
those plant emissions. I'm not saying you ignore the other ones, but we're talking about
not necessarily applying exactly the same criteria to the 30 percent of the sources as you
are to the 70 percent of the sources." Comments of Scott Evans at September 2004 Task
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Content Issues
Insignificant Activities and Emission Units
Force Meeting. See also Comments of Wayne Penrod at June 2004 Task Force Meeting.
Transcript at 1-288.
Many commenters believed that insignificant units should be eliminated from the permit.
See STAPPA/ALAPCO Comments, OAR-2004-0075-0048 ("there needs to be serious
consideration of whether insignificant units should be included in Title V permits at all").
Concurring in the elimination of insignificant units, one commenter indicated that States
that have a history of regulating the smallest sources of emissions will be at a competitive
disadvantage with States that do nothing more than the bare minimum required under
Title I of the Clean Air Act, and permitting authorities in such States will be burdened
disproportionately with minutia, rather than being able to focus their Title V resources on
significant emissions units. Comments of the OAR-2004-0075-0083 (Ohio Chamber).
This commenter also noted that keeping insignificant emissions units out of Title V
would not relieve insignificant sources from compliance obligations with respect to
applicable State or Federal law requirements. Rather, it would remove them from the
Title V program and would simply leave their regulation to the State, as was the case
prior to Title V. See also Comments of Ohio EPA, OAR-2004-0075-0082.
On the other hand, in his oral statement to the Task Force, the NRDC representative
stated that there should not even be an "insignificant activities" concept. If an emissions
unit has an applicable requirement, then it should be on the Federal side of the permit,
regardless of size or nature of emissions or type of applicable rule (e.g., capacity). Not-
ing that there is no provision allowing States to exclude insignificant units and activities
from monitoring requirements, he stated that the "question is, is an emissions unit subject
to a legal requirement under Federal law, or is it not? If it is, it should be in the permit
..." He did note that the rules allow "different levels of requirements, ... to reflect the
fact that those units are different in some way than significant emission units." Com-
ments of John Walke at June 2004 Task Force Meeting.
In sum, a number of commenters advocated complete elimination of insignificant units
from Title V permits, while others believed this is not authorized. Among those advocat-
ing exclusion of insignificant units in the program, there was a belief that the current
situation regarding insignificant units is causing resource allocation problems and moni-
toring burdens not commensurate with environmental impact. As noted above, others
noted that the Title V permit is the only place that all insignificant units may be detailed
at a facility so the public is aware of them and that numerous insignificant sources at a
facility can collectively have a serious environmental impact. Still others pointed to the
application (rather than the permit) as the most appropriate place to identify insignificant
units.
Task Force Discussion
It was noted that insignificant units have imposed large costs on both State agencies and
industrial sources, even though there are no required controls and compliance has not gener-
ally been an issue. The typical requirements for these types of units are generalized SIP
limits, such as 20 percent opacity requirements, which small sources would not have the
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Content Issues
Insignificant Activities and Emission Units
capability of exceeding. Moreover, there are numerous SIP rules that address broad catego-
ries of sources but for which compliance by small units is a given. Often these generic
requirements are included in general permit conditions and there is no reason to include
them in Title V. Some Task Force members believed that expending time on these small
sources in terms of verifying compliance with such limits was detracting from time to be
spent on compliance assurance for larger units using control devices. These Task Force
members also believed that much of the problem stemmed from legal interpretations by the
EPA General Counsel's Office even though the program office had never intended for
insignificant units to end up in Title V permits. In these members views, while the discus-
sion back in 1991 when the rules were promulgated was focused on applications, comment-
ers were requesting generally that a de minimis level be established and did not consider that
a de minimis level in the application would not carry over to the permit.
In discussing whether the approaches taken in Ohio and White Paper No. 2 (allowing a
simple statement that insignificant units shall comply with applicable requirements rather
than a separate listing of units and revisions for those units), industry representatives on the
Task Force stated that this approach was not being implemented uniformly and that it still
could require the source to conduct a certification process for insignificant units each report-
ing period. They considered this process burdensome particularly given the low emissions
from these units and the low likelihood of a violation.
Industry members of the Task Force also highlighted the permit revision burden associated
with permits that include specific lists of insignificant units. For example, they were
concerned about the practice in some States of listing the number of each type of unit
present at the facility and whether a reduction or increase in the number of such units would
require a permit revision.
Environmental group Task Force members expressed concerns that a plant with numerous
insignificant units could have high emissions from those units when viewed collectively
rather than individually. They also felt strongly that the requirement to include all applica-
ble requirements in the permit was a mandate from which no de minimis exemption could be
provided.
Recommendations
One area for improvement in the Title V program would be to simplify the treatment of
insignificant emissions units. The administrative burden associated with permit updating
and certifications for insignificant units subject to generic or minor NSR permitting
requirements outweighs the environmental benefit associated with including them in the
Title V permit. Without providing any permit shield for insignificant units:
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Content Issues
Insignificant Activities and Emission Units
Recommendation #1
EPA should either amend the rules or the applicable guidance so that States do not have
to identify insignificant emissions units in the Title V permit, even if they are subject to
generic rules (e.g., opacity) or minor NSR permits and thereby eliminate the associated
monitoring, recordkeeping, reporting, permit revision and certification requirements. The
IEU exclusion would be for Title V purposes only and would not mean that the State
would refrain from regulating, monitoring, or registering such units or activities, under its
minor NSR or other programs. Current IEU lists would be reviewed for this purpose.
In Favor (12)*: Paul, Wood, Hodanbosi, Freeman, Hagle, Morehouse, Broome,
Schwartz, Golden, van der Vaart, Sliwinski, Kaderly
Opposed (6)*: Palzer, Powell, Raettig, Keever, Owen, Van Frank
Abstentions:
Clarifications: Sliwinski clarifies that this would not apply to New York's higher tier of
insignificant units (i.e., exempt units) but that no certification would be required for
this tier.
*Note: Number in parentheses () is the total number of Task Force members voting for this position.
Recommendation #2
Under the program as it currently stands, streamlining can be achieved by communicating
that States are not required to include lists of insignificant units and activities in permits
but can include a simple line item requiring compliance with applicable requirements for
insignificant units and activities. Insignificant emission units and activities should be
reviewed as appropriate at each renewal of the permit.
In Favor (18): Broome, Paul, Wood, Hodanbosi, Morehouse, Hagle, Freeman,
Sliwinski, Schwartz, Powell, Raettig, Owen, Golden, Keever, van der Vaart, Van
Frank, Kaderly, Palzer
Opposed:
Abstentions:
Clarifications: Powell, Raettig, Keever, Palzer, Van Frank and Owen support with
clarification that they can obtain the list of insignificant units/activities for the source
in the application.
Recommendation #3
To the extent EPA decides to exempt LEUs from inclusion in the Title V permit, a State
that wants to take advantage of this opportunity should be required to resubmit its list of
lEUs to EPA for approval. IEU lists should be subject to public review and comment.
In Favor (11): Powell, Raettig, Paul, Hodanbosi, Hagle, Keever, Owen, Schwartz,
Sliwinski, Van Frank, Palzer
Opposed (5): Morehouse, Broome, van der Vaart, Kaderly, Wood
Abstentions (2): Golden, Freeman
(Clarification on next page)
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Content Issues
Insignificant Activities and Emission Units
(('larificalion for Recommendation 3)
Clarifications: Palzcr. Powell. Riielliu. kee\er. Vim I'miik. aiicl Owen clarify lhat
acceptance of this recommendation does not inclicale agreement with the concept of
exempting Mil s iVom the permit Morehouse. kaderly. Wood, mid Broome oppose
aiicl I'reeiiuin and (iolden ahslain because these lists ha\e alreacK been throiiuh pnhlic
aiicl 11P.\ re\ iew.
Related Topics: Permit Revisions
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Content Issues
Monitoring
4.3 Topic: Monitoring
Issue/Observation Description
What this paper addresses: This paper discusses issues raised regarding the emissions
monitoring requirements included in permits. The paper reflects two opposing views
presented by commenters and Task Force members, some of whom believe that the
monitoring included in permits often is not adequate to satisfy statutory requirements,
and others of whom believe that the monitoring being added is not authorized by the
statute and may unlawfully change compliance obligations.
Legal Requirements and Litigation. Title V includes provisions requiring that permits
include monitoring and reporting requirements "to assure compliance" with permit terms
and conditions and providing EPA authority to "prescribe procedures and methods for
determining compliance and for monitoring" by rule.
(a) Conditions. Each permit issued under this title shall include enforceable
emission limitations and standards ... a requirement that the permitee submit
to the permitting authority, no less often than every 6 months, the results of
any required monitoring, and such other conditions as are necessary to assure
compliance with applicable requirements of this Act, including the require-
ments of the applicable implementation plan. . . .
(b) Monitoring and Analysis. The Administrator may by rule prescribe proce-
dures and methods for determining compliance and for monitoring and
analysis of pollutants regulated under this Act, but continuous emissions
monitoring need not be required if alternative methods are available that pro-
vide sufficiently reliable and timely information for determining compliance.
(c) Inspection, Entry, Monitoring, Certification, and Reporting. Each per-
mit issued under this title shall set forth inspection, entry, monitoring, com-
pliance certification, and reporting requirements to assure compliance with
the permit terms and conditions. Such monitoring and reporting require-
ments shall conform to any applicable regulation under subsection (b) of this
section. ...
CAA § 504, 42 U.S.C. § 7661c.
EPA implemented Title V in 1992 with rules that require permits to include all monitor-
ing and test methods required under applicable requirements, including the Compliance
Assurance Monitoring (CAM) rule (codified at Part 64), and any other procedures and
methods that may be promulgated by EPA under § 114(a)(3) (requiring "enhanced moni-
toring") or § 504(b). 40 C.F.R. § 70.6(a)(3)(i)(A). Additionally, where an applicable
requirement does not require "periodic monitoring," the rules require specification of
periodic monitoring. Id. § 70.6(a)(3)(i)(B) (the "periodic monitoring" rule). The rules
also contain broader language mirroring the statutory provisions requiring that permits
include monitoring requirements to assure compliance. Id. § 70.6(c)(1).
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Content Issues
Monitoring
EPA promulgated the CAM rule in 1997. In the preamble to the CAM rule, EPA briefly
addressed the relationship between CAM and "periodic monitoring" as follows:
As noted in the 1993 [enhanced monitoring] proposal, because part 64
contains applicable monitoring requirements sufficient to demonstrate
compliance with applicable emission limitations or standards, the part 70
periodic monitoring requirements will not apply to the emissions units and
applicable requirements covered by part 64. This conclusion is equally
applicable under the final part 64 rule.
62 Fed. Reg. 54904, col. 3 (emphasis added). EPA also pointed out that for units that
must have "periodic monitoring" specified prior to implementation of CAM (i.e., for
those units that do not already have "periodic monitoring" and for which CAM would not
become applicable until permit renewal), in many cases that "periodic monitoring" might
serve as a basis, in whole or in part, for its future CAM plan. Id. As noted in the section
below summarizing the Task Force's discussion, there was not consensus among Task
Force members regarding the significance of these statements.
Since their promulgation, the Title V monitoring rules have been subject to several EPA
interpretations and to litigation challenging those interpretations. In these cases, litigants
have asked the court to determine the meaning of both the "periodic monitoring" rule and
the broader language in § 70.6(c)(1), and to determine the consistency of the rules (as
interpreted by EPA) with the statutory requirements. As of this date, three court opinions
have been issued. In the first case, the U.S. Court of Appeals for the District of Columbia
Circuit ("D.C. Circuit") interpreted the "periodic monitoring" rule and vacated a 1998
EPA guidance document on periodic monitoring. See Appalachian Power v. EPA, 208
F.3d 1015 (D.C. Cir. 2000). In the second case, the D.C. Circuit held that EPA's CAM
rule, in combination with the Title V monitoring rules, satisfies the statutory requirement
for "enhanced monitoring." Natural Resources Defense Council v. EPA, 194 F.3d 130
(D.C. Cir. 1999) (upholding EPA's CAM rule).
In the third case, the D.C. Circuit vacated EPA's most recent interpretation of § 70.6(c)
on procedural grounds. Environmental Integrity Project v. EPA, 425 F.3d 992 (D.C. Cir.
2005) (EIP v. EPA). EPA set out that interpretation in January 2004. 69 Fed. Reg. 3202.
In that action, EPA concluded that the Title V monitoring rules do not provide States with
authority to supplement existing monitoring, except as set out in the Part 70 provisions
requiring implementation of CAM (and any future rules EPA promulgates) and allowing
specification of "periodic monitoring" where there is no such monitoring specified.
According to EPA, any other improvements in monitoring should be accomplished by
rulemaking.
Previously, EPA had interpreted the rules in several orders on petitions for objection on
specific source's Title V permits as providing permitting agencies authority to supple-
ment monitoring "as necessary ... to assure compliance." See, e.g., In the Matter of
Pacificorp, Petition No. VIII-00-01 (Nov. 16, 2000) at 19. The D.C. Circuit dismissed on
jurisdictional grounds an attempt by industry to challenge that interpretation as inconsis-
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tent with EPA's 1992 rulemaking record and the statute. Utility Air Regulatory Group v.
EPA, 320 F.3d 272 (D.C. Cir. 2003) (concluding in part that sources can challenge the
interpretation if it is applied to them in an individual permit proceeding). In EIP v. EPA,
the D.C. Circuit concluded that EPA had not satisfied notice and comment requirements
in its attempt to revise the Pacificorp interpretation because the Agency's rulemaking
proposal did not include the interpretation EPA ultimately adopted. The Court did not
reach the merits of any of EPA's interpretations.
Following vacatur of the 2004 action, EPA told the D.C. Circuit that it plans to complete
a new rulemaking to interpret § 70.6(c) later in 2006. EPA has also stated that it expects
to publish a rulemaking proposal in 2006 addressing when the "periodic monitoring" rule
applies and what constitutes "periodic monitoring." Whatever interpretation of § 70.6(c)
EPA ultimately adopts, that action likely will result in litigation either by environmental
groups or industry. The D.C. Circuit is currently holding in abeyance an additional chal-
lenge to EPA's 1992 monitoring rules by both environmental groups and industry. See
Clean Air Implementation Project, et al. v. EPA, Case No. 04-1243 (D.C. Cir).
Comments and Testimony Received
The Task Force received extensive comments, both oral and written, on issues related to
the imposition of new or revised monitoring requirements. The Task Force notes that
interpreting the testimony regarding monitoring is sometimes difficult, given the fact that
the commenters do not have a common understanding of, or agreement regarding, the
statutory and regulatory requirements. In addition, the comments and testimony pre-
sented to the Task Force were not limited to permits that are currently being issued, but
instead covered permits issued under several different interpretations of the Title V moni-
toring rules. Nonetheless, the comments received confirmed that the specification, or
lack of specification, (depending on the commenter's perspective) of new or revised
emissions monitoring requirements in permits is a significant issue that needs to be re-
solved.
Environmental and public health groups commented that monitoring was very important
to Title V permitting, and that the CAA requires States to impose supplemental monitor-
ing where necessary to assure compliance. A number of these commenters noted that
they believe EPA's 2004 monitoring rule unlawfully limited State's author-
ity/responsibility to add monitoring to Title V permits. Environmental group representa-
tives also stated that the monitoring being added to Title V permits is inadequate. Some
environmental group representatives provided specific examples of monitoring included in
Title V permits that they found to be inadequate, particularly opacity, particulate matter,
flare, and startup, shutdown, malfunction monitoring. One environmental group representa-
tive criticized the CAM rule as failing to provide certainty regarding a facility's emissions.
Industry representatives commented that Title V does not allow permitting authorities to
add monitoring to Title V permits, except where an applicable requirement lacks periodic
monitoring. These comments stated that monitoring, other than periodic monitoring,
must be addressed through the rulemaking process. Industry representatives also gener-
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ally noted that too much monitoring was being included in Title V permits. A number of
industry representatives cited the excessiveness of "periodic monitoring" that was being
imposed for units that did not have ongoing periodic monitoring and several suggested
criteria for determining the frequency/adequacy of this monitoring, which they believe is
the only additional monitoring authorized under the regulations. Many industry represen-
tatives stated that new substantive monitoring requirements, such as imposition of pa-
rameter monitoring and operational restrictions that were not otherwise authorized and
may not be a good indicator of compliance or noncompliance, were being added to per-
mits. A few industry representatives made comments regarding the CAM rule.
A number of State/local regulatory agencies commented on the need for permitting authori-
ties to be able to supplement monitoring through Title V permits where necessary to assure
compliance. One local permitting authority commented that it believes case-by-case review
of monitoring through permits is a poor approach. A number of States indicated that they
had developed their own guidance or presumptive norms for monitoring. Several permitting
agencies also commented that EPA should proceed to review and update NSPS monitoring
where that was needed. A number of permitting agencies identified the lack of regulatory
guidance regarding periodic monitoring as a problem. One State/local permitting associa-
tion commented on implementation of the CAM rule.
More detailed identification of comments received, with citations to the docket, is pro-
vided in Attachment A.
Task Force Discussion
With that background, the Task Force agreed that it faced a number of hurdles to its
stated task of identifying "what is and is not working in the real world with respect to
monitoring under Title V," including a fundamental lack of agreement among Task Force
members regarding:
• What Title V authorizes and requires with respect to inclusion of monitoring in per-
mits;
• What the current Title V rules require and whether they satisfy the statutory require-
ments; and
• The means by which existing monitoring can or should be changed, or additional
monitoring can or should be imposed under the Clear Air Act generally.
The Task Force's discussions regarding monitoring took place over the course of several
meetings. To begin the discussion, the Task Force put aside the issue of authority to
impose monitoring and began with a general discussion about the purpose of monitoring,
and the specification of monitoring in operating permits. The Task Force generally
agreed that one of the primary functions of monitoring is to assure compliance with
emission standards. The Task Force identified a number of factors for consideration in
deciding what monitoring might be appropriate, such as the size of the emissions unit, the
variability of emissions, the cost of monitoring, and how far the unit's emissions are from
the standard (i.e., the unit's margin of compliance). Another Task Force member identi-
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fied compliance history as a factor in determining the appropriate frequency of monitor-
ing.
An industry Task Force member noted that another purpose of monitoring is to provide
the support for establishment of emissions standards at a particular level (e.g., to deter-
mine what is achievable in practice with a specific control technology). That Task Force
member stated that, as a result, an additional factor to consider in choosing appropriate
monitoring for assuring compliance with an emission standard, is the basis upon which
the numerical emission limit was established, including the type and amount of monitor-
ing data relied upon to establish the standard (e.g., was it a few stack tests or continuous
data), the variability in those data, and the assumptions made regarding operating condi-
tions under which no data was collected.
One Task Force member suggested that the purpose of specifying monitoring in the
permit is to reach a common understanding about the method by which a source demon-
strates compliance. Another Task Force member responded that identifying specific
monitoring in permits can be a problem because it makes it difficult to change that moni-
toring in the future.
One Task Force member noted that some of the issues regarding monitoring arise be-
cause the requirements do not advance with the technology. Another Task Force member
stated that there should be a shift towards use of continuous monitoring where that tech-
nology exists. In response, the Task Force briefly discussed how EPA and State agencies
might approach moving from older standards based on periodic monitoring methods (like
stack tests) to continuous monitoring. One environmental group Task Force member said
that there could be some leeway provided in exchange for using continuous monitoring
methods, such as continuous opacity monitoring systems (or COMS) in lieu of periodic
testing (e.g., visible emissions readings with EPA Method 9). One State agency said that
they would excuse some deviations in exchange for use of COMS to enforce visible
emission standards.
An industry Task Force member explained her view that providing exceptions or other
adjustments to emission standards might be necessary when changing monitoring meth-
ods in order to ensure that the change did not make the standard more stringent. She
explained that many standards were and still are established based on a limited number of
periodic stack tests performed under controlled conditions that were deemed to be "repre-
sentative" of normal operation. The Task Force member went on to State that because of
the limited nature of the testing, the data might not characterize the full realm of condi-
tions that occur during normal operations over longer periods of time (e.g., because of
variability in source operation, fuel characteristics, or control device operation). For that
reason, she stated, the standards also specified that the source determine compliance by
repeating stack tests under the same conditions used to set the standard and in some
cases, in between stack tests, by collecting other data to verify that the source was prop-
erly operating any control device required to meet the limit. She noted that in some cases
continuous monitors (such as COMS) were later specified as a means of verifying proper
control device operation in between stack tests by calculating and reporting "excess
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emissions," but not as the compliance method. She stated that this is the model used in
many New Source Performance Standards (NSPS), which the Clean Air Act requires to
be achievable using the best demonstrated control technology available at the time the
standard was established. She said that, in her view, because the standards were not set
with continuous data, EPA or a State agency could not later specify continuous monitor-
ing as the compliance method without considering data from that new method, which
could reveal unavoidable variability that was not considered when the standard was set.
She believed that if new data reveals such variability, EPA or a State agency would have
to adjust the standard (e.g., by providing some de minimis percent of time exception or a
longer averaging time). According to this Task Force member, failure to consider the
impact of the new monitoring method on the standard could result in a standard being
unlawfully rendered unachievable with the technology upon which it was based. The
Task Force member felt the question of whether a particular monitoring method was
"sufficient to assure compliance," had to begin with the question "sufficient to assure
compliance with what" — a standard that has been demonstrated to be achievable only
under specific conditions with specific technology, or a standard with no such restric-
tions.
An environmental Task Force member disagreed that requiring continuous monitoring
would require agencies to re-examine standards. The Task Force member stated that the
Clean Air Act requires continuous compliance with all standards regardless of the amount
or type of data used to the set the standard. She stated that if a continuous monitoring
technology, like COMS, is available (or later becomes available) to show whether the
limit is being met at all times, permitting agencies should require that technology in order
to show whether a source is in continuous compliance. With respect to existing stan-
dards, she suggested that if industry had not believed that continuous compliance with the
standards was achievable, then they should have challenged the standards when EPA or
the State agency promulgated them. An industry Task Force member responded that they
had no way of knowing at the time EPA or a State agency set the standard whether or not
it could be met at all times because there were no continuous data available to make that
determination. She noted that, if the data had been available, those data presumably
would have been used to set the standard.
Two Task Force members debated whether SIP standards also were based on assump-
tions regarding performance of specific technology and thus would be subject to the same
arguments regarding the need to re-examine the standard. One State agency Task Force
member stated that because SIP standards are promulgated to meet health-based National
Ambient Air Quality Standards (NAAQS), they are not required to be achievable with
any particular technology. An industry Task Force member disagreed, stating that SIP
standards (even though promulgated to comply with a NAAQS) are always based on
assumptions during the SIP planning process regarding the performance of available
control technology and the cost of those controls relative to some other type of control
measure being considered.
Task Force members then presented their opposing views regarding a permitting
agency's authority under the Clean Air Act and regulations to impose new or different
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Monitoring
monitoring in a Title V permit to assure compliance. An environmental group Task
Force member explained her view that the statute specifically requires permitting agen-
cies to add monitoring on a source-by-source basis whenever necessary to assure compli-
ance. She believed that all compliance monitoring should be re-examined in the permit-
ting process so that a permitting agency can consider the individual characteristics of the
source (including such things as its proximity to sensitive populations) and update moni-
toring as new technologies become available.
Industry Task Force members disagreed stating that in their view the Clean Air Act
specifies that monitoring requirements be determined through rulemaking (or State pre-
construction permitting proceedings) considering factors such as cost, burden, and the
data upon which the relevant emission standard is set. They also felt that allowing State
agencies to re-examine monitoring for each individual source, and allowing citizen
groups to seek additional monitoring in Title V permit proceedings, was inconsistent with
judicial review procedures of the Clean Air Act requiring that any challenges to a final
rule's adequacy be made within 60 days. They felt that citizens should participate in the
rulemaking and preconstruction permitting proceedings that were designed to resolve
issues, including the adequacy of monitoring, and should not be allowed a second chance
to challenge that adequacy simply because the source is required under the Act to obtain
an operating permit. They used the example of a final MACT rule, with respect to which
a citizen might unsuccessfully challenge the adequacy of monitoring in court, and then
assert the same arguments in the Title V permitting proceedings. One industry Task
Force member felt that any issues regarding the need for source-specific monitoring
could be dealt with in the relevant rulemaking, such that if there were legitimate source-
specific monitoring issues the final rule could provide authority to examine those issues
in the permit proceeding.
With respect to the adequacy of current monitoring, an industry Task Force member
noted that EPA promulgated the Part 64 CAM rule specifically to address that issue and
had done so in a way that did not require re-examination of the emission limits. She
asserted that many of the issues regarding the adequacy of monitoring will be solved once
CAM is implemented and that EPA and States should put their resources into ensuring
proper and timely implementation of that rule rather than promulgating new rules or
reopening old rules. Another Task Force member noted that CAM has gaps because it
will not apply to all sources because of size cut-offs. The industry Task Force member
responded that EPA had determined that such sources did not need the additional moni-
toring in the CAM rule because their emissions were either not significant or not suffi-
ciently variable to require more than periodic testing.
Regarding the nature of monitoring under the CAM rule, several Task Force members
stated that CAM monitoring is not compliance determination monitoring because it does
not establish noncompliance. Industry Task Force members disagreed, noting that the
D.C. Circuit had already determined that monitoring under CAM was sufficient to sup-
port the compliance certification requirements of the Clean Air Act. (The summary of a
later discussion regarding the adequacy of the CAM rule appears below.)
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The Task Force briefly discussed EPA's "credible evidence" rule. In response to one
Task Force member's remark that industry should not be so reluctant to install continuous
monitoring because companies could benefit from the information, an industry Task
Force member suggested that industry likely would not be so reluctant to install continu-
ous monitoring technology if they had assurances that the data would be used in a manner
that they believed was fair (i.e., would not be used in a manner inconsistent with their
existing emission standards). She asserted that EPA also had created hurdles to devel-
opment of new continuous monitoring technology when it promulgated the "credible
evidence" rule.
Following that discussion, the Task Force developed and considered a variety of recom-
mendations. The first recommendation considered the use of rulemaking to address any
concerns regarding the adequacy of existing monitoring. In order to identify areas of
consensus the Task Force divided the recommendation into several parts. The first parts
(Recommendations #l(a) and #l(b)) dealt simply with the principle that EPA and States
should be moving forward to address any issues through rulemaking. A vote in favor of
these recommendations did not mean that the Task Force member felt that rulemakings
were the only way to address monitoring adequacies. Similarly, a vote in favor did not
mean that Task Force members agreed that monitoring requirements were inadequate or
that the existing requirements for "enhanced monitoring" under CAM and the "periodic
monitoring" rule were not sufficient to address those issues.
The second part of Recommendation #1 (Recommendations #l(c)(i) and (ii)) considered
how to address concerns about the adequacy of monitoring prior to completion of any
rulemakings. The votes on these recommendations generally followed the Task Force
members' views as to whether the Clean Air Act provides authority to supplement moni-
toring in Title V permits and whether exercise of such authority (if it exists) makes sense
from a policy perspective.
The third part of Recommendation #1 (Recommendations #l(d)(i) and (ii)) considered
whether the permitting process could (or should) be used to supplement monitoring that
had recently been addressed through rulemaking. The votes on these recommendations
also generally followed the Task Force members' views as to the extent of authority
provided under Title V to supplement monitoring permit-by-permit, the need for source-
specific monitoring, and whether source specific monitoring negates finality in the rule-
making process.
Recommendation #2 considered the extent to which EPA should issue a SIP-call requir-
ing States to address the adequacy of monitoring through rulemaking in the event that
permitting agencies do not have authority to conduct permit-by-permit review and en-
hancement through Title V. The environmental group Task Force members voted in
favor of this recommendation. Others opposed or abstained.
Recommendation #3 considered the factors EPA should address in its upcoming rulemak-
ing proposal regarding when the "periodic monitoring" rule applies and what constitutes
"periodic monitoring." Although the majority of Task Force members voted in favor of
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Monitoring
the recommendation, members disagreed regarding several of the factors that permitting
agencies should consider. Rather than oppose the entire recommendation, Task Force
members noted their disagreement in the form of clarifications. Specifically, the envi-
ronmental group Task Force members did not agree that permitting agencies must con-
sider the data upon which the standard was set (e.g., whether it was set with a few stack
tests or with continuous emissions monitoring data). On the other hand industry Task
Force members felt that any additional monitoring that was used for direct determination
of compliance (rather than to ensure proper operation of a control device as occurs under
the CAM rule) would have to be consistent with the test method currently specified (e.g.,
specify a frequency for periodic performance of the existing test method).
Recommendation #4 considered the relationship between "periodic monitoring" and the
CAM rule. Industry Task Force members expressed concern that State agencies did not
understand that EPA had determined in the CAM rulemaking that the "periodic monitor-
ing" requirement would no longer apply once CAM was implemented. One industry
Task Force member cited EPA's statements in the preamble to the CAM rule, and the
D.C. Circuit's decision upholding the CAM rule as sufficient to satisfy requirements for
"enhanced monitoring" and compliance certifications, as evidence that the relationship
between the two rules had been resolved in the CAM rulemaking.
One State agency Task Force member felt that such an issue could not be resolved
through preamble statements that are not also reflected in the rules. He felt that CAM
might or might not satisfy Title V monitoring requirements and that the rule did not speak
to that issue. Although he agreed that CAM is sufficient to support a compliance certifi-
cation, he also felt that EPA would allow almost anything to satisfy the compliance certi-
fication requirement. This Task Force member felt that the issue was whether CAM
satisfied the requirement for monitoring "sufficient to assure compliance." In other
words, his view of the issue was tied with the question of what Title V authorizes and
requires in terms of new monitoring. Because he did not agree with the D.C. Circuit's
determination that CAM is sufficient to assure compliance, he did not believe that CAM
necessarily would satisfy the requirement for "periodic monitoring."
An industry Task Force member expressed the view that Congress could not have in-
tended the general "to assure compliance" language in Title V to provide a more stringent
standard forjudging the adequacy of monitoring than the language in CAA § 114(a)(3),
which specifically addressed the need for "enhanced monitoring." As a result, the mem-
ber felt that if CAM satisfies "enhanced monitoring" as the D.C. Circuit held, it must also
satisfy any requirement that might exist under Title V. She felt that the legislative history
was clear that the goals of the requirement for "enhanced monitoring and compliance
certifications" and of the Title V certification requirement were the same. The State
agency Task Force member did not disagree regarding the legislative history, but he read
the D.C. Circuit's decision as not finding that CAM satisfies that purpose, only that the
CAM rule was not inconsistent with the discretion provided to EPA under Chevron.
Environmental group Task Force members made clear that they also did not agree with
the D.C. Circuit's opinion. They continued to believe that CAM is not sufficient "to
assure compliance" and therefore would not satisfy Title V requirements.
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Two additional recommendations were suggested, but the Task Force decided not to vote
on them as recommendations. The first recommendation, which was offered by several
environmental group representatives, would have stated that EPA had failed its responsi-
bility under Title V by prohibiting case-by-case supplemental monitoring without devel-
oping an interim plan requiring monitoring sufficient to determine compliance while
undertaking rulemaking, and without committing to review all underlying standards.
They would have recommended that EPA's failure be remedied immediately. Industry
Task Force members did not agree that EPA had failed to meets its obligation. They
believed that EPA had met its statutory obligations by requiring "enhanced monitoring"
under the CAM rule and "periodic monitoring" rule. They also noted that EPA had
recently issued an advanced notice of proposed rulemaking to solicit comment on
whether any additional rulemakings were warranted. Environmental group representa-
tives did not believe the solicitation of comments was sufficient because EPA had only
committed to review those regulations that received public comment, and did not intend
to undertake its own review of monitoring in State and Federal rules. They felt that it
was unrealistic for EPA to expect members of the public to review thousands of regula-
tions in a matter of months and identify all of the areas that need additional monitoring.
They stated that if EPA chooses to prohibit case-by-case supplemental monitoring, EPA
is obligated to ensure that monitoring in underlying requirements is sufficient to assure
compliance.
The second additional recommendation discussed by the Task Force addressed a specific
issue that has occurred in initial Title V permitting when State agencies are exercising (or
were exercising) authority under EPA's now-vacated "periodic monitoring" guidance,
under EPA's Pacificorp interpretation of the Title V monitoring rules, or under the exist-
ing "periodic monitoring" rule. Specifically, some permitting agencies have uniformly
required visible emissions observations either each day or for each shift (e.g., every eight
hours). Industry Task Force members felt that even if the permitting agency had author-
ity to impose this monitoring (e.g., under the existing "periodic monitoring" rule because
there was no ongoing monitoring requirement in the underlying rule), such frequent
visible emissions observations in many cases exceed what is necessary to reasonably
assure compliance. As a result, they would have recommended that permitting agencies
stop this practice for initial permit issuance and revisit any such monitoring requirements
upon permit renewal (or modification at the request of the source). They would have
recommended that permitting agencies reduce the frequency based on the results of moni-
toring to date (e.g., reduce the frequency if there had been a series of normal visible
emissions observations). The Task Force ultimately did not vote on this recommendation
because of its focus on the practice of a few States and the likelihood that EPA's gap-
filling rule will address the factors to be considered in establishing such monitoring, and
these are already reflected in another recommendation.
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Recommendations
Recommendation #l(a)
EPA should proceed expeditiously by rulemaking to address monitoring inadequacies
that may exist in underlying Federal standards.
In Favor (1.7)*: Morehouse, Freeman, Van Frank, Palzer, Owen, Keever, Haragan,
Powell, Schwartz, Golden, Paul, Hagle, Sliwinski, Broome, Wood, van der Vaart,
Hodanbosi
Opposed:
Abstentions:
Clarifications:
*Note: Number in parentheses () is the total number of Task Force members voting for this position.
Recommendation #l(b)
States should proceed expeditiously by rulemaking to address monitoring inadequacies
that may exist in underlying SIP standards.
In Favor (1.5): Morehouse, Freeman, Palzer, Owen, Keever, Haragan, Powell, Schwartz,
Paul, Hagle, Sliwinski, Broome, Wood, Golden, Hodanbosi
Opposed (2): van der Vaart, Van Frank
Abstentions:
Clarifications: Freeman, Golden, Broome, and Morehouse voted in favor of this
recommendation with the understanding that there will be clarification that CAM
satisfies periodic monitoring requirements. Van Frank was opposed to this
recommendation on the basis that this activity cannot or will not be undertaken with
the resources currently available to State and local permitting authorities.
Recommendation #1 (c)(i)
Before any such rulemakings, permitting authorities would not have authority to supple-
ment on a case-by-case basis, in the permit review process, monitoring in standards that
already contain periodic monitoring requirements. States would proceed with gap-filling
monitoring for standards that do not have periodic monitoring requirements, to the extent
authorized by the rules and with compliance assurance monitoring.
In Favor (7): Morehouse, Freeman, Schwartz, Paul, Broome, Wood, Golden
Opposed (10): Palzer, Owen, Keever, Haragan, Powell, Hagle, van der Vaart, Van Frank,
Sliwinski, Hodanbosi
Abstentions:
Clarifications: Freeman voted in favor of this recommendation with the understanding
that periodic monitoring will be limited to a reasonable frequency for the specific
reference method test.
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Recommendation #1 (c)(ii)
Before any such rulemakings, permitting authorities must conduct case-by-case reviews
of all applicable requirements and supplement monitoring to assure compliance.
In Favor (6): Palzer, Owen, Keever, Haragan, Powell, Hagle
Opposed (11): Broome, Morehouse, Freeman, Golden, Wood, van der Vaart, Paul, Van
Frank, Schwartz, Sliwinski, Hodanbosi
Abstentions:
Clarifications: Hagle voted in favor of this recommendation but would change to the
opposed position if the courts determine that case-by-case reviews are not required-
Recommendation #1 (d)(i)
After a rulemaking, the rule would be a final indication of the monitoring required for a
standard, and that may not be supplemented or changed in the permitting process. Any-
one who objects to the monitoring in a final rule would be required to challenge that rule
in the courts but not in individual permit proceedings.
In Favor (8): Broome, Morehouse, Freeman, Golden, Wood, van der Vaart, Paul,
Sliwinski
Opposed (7): Van Frank, Palzer, Owen, Keever, Haragan, Powell, Hodanbosi
Abstentions (1): Hagle
Clarifications:
Recommendation #1 (d)(ii)
After a rulemaking, provided such rulemaking expressly address the adequacy, pursuant
to Title V, of monitoring in the underlying standard, that monitoring is presumptively
adequate to meet Title V requirements, but must be supplemented on a case-by-case basis
if necessary to assure compliance.
In Favor (7): Palzer, Owen, Keever, Haragan, Powell, Hagle, Van Frank
Opposed (10): Broome, Morehouse, Freeman, Golden, van der Vaart, Paul, Schwartz,
Sliwinski, Wood, Hodanbosi
Abstentions:
Clarifications:
Recommendation #2
Unless EPA lifts the 2004 prohibition on case-by-case supplemental monitoring, EPA
must review the adequacy of monitoring in SIP rules and issue a SIP call for those that
are inadequate. EPA should provide funding to the States for SIP revision costs.
In Favor (6): Palzer, Owen, Keever, Haragan, Powell, Van Frank
Opposed (10): Broome, Morehouse, Freeman, Golden, van der Vaart, Schwartz, Hagle,
Sliwinski, Wood, Hodanbosi
Abstentions (1): Paul
Clarifications:
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Recommendation #3
I'I'A's rulemaking regarding uap-lillinu monilorinu should proinole consistency among
permitting anlhoiilies aiicl include consideration of se\eral laclors. such as cosl. technical
I'ciisi hi lily, monilorinu currently in place at the unit, monitoring currently a\ai lahle or
being used at similar units, the data upon which the standard was set. size of the
unit emissions le\els. margin of compliance. compliance history, likelihood of a \ iola-
lion. and emissions \ariahilitv
/// l-'avor (I Broome. Morehouse. I'reeman. (iolden. \ander Vaart. Schwartz. I lade.
Palzer. Owen. kee\er. I larauan. Powell. Van I'rank. Sliwinski. Paul. Wood.
I lodanhosi
Opposed:
. \bstentions:
Clarifications: I larauan. Owen. Powell. Palzer. Van I'rank. and kee\er. who\oted in
la\or of this recommendation, do not agree that the data upon which the standard was
set should he included as a factor I'reeman. Broome. Morehouse, (iolden. Wood,
and Paul who \oted in la\or of this recommendation add that monilorinu should be
consistent with the existinu test methods
Recommendation #4
EPA's rulemaking should clarify the relationship between the CAM rule and periodic
monitoring, such that CAM satisfies Periodic Monitoring.
In Favor (9): Freeman, Morehouse, Paul, Golden, Schwartz, Hagle, Broome,
Wood, Hodanbosi
Opposed (8): Van Frank, Keever, Owen, Haragan, Powell, van der Vaart, Sliwinski,
Palzer
Abstentions:
Clarifications:
Related Topics: New Substantive Requirements, Definitiveness of Permit
Attachment: Additional Comments
The Task Force notes that additional comments on monitoring have been submitted to
EPA in response to its Advanced Notice of Proposed Rulemaking on Potentially Inade-
quate Monitoring and on Methods to Approve Such Monitoring (70 Fed. Reg. 7905).
Environmental Group Comments:
Environmental groups and commenters almost unanimously commented that monitoring
was very important to Title V permitting and that what was being imposed is inadequate.
(Galveston-Houston Assoc. for Smog Prevention (GHASP), OAR-2004-0075-0057; Our
Children's Earth OAR-2004-0075-0025; J. Wilson, GHASP, Tr. 2-143; S. Zingle, Lake
County Conservation Alliance, Tr. 3-055; D. Frederick Esq., Tr. 3-055; S. Gollwitzer,
App. Voices, Tr. 3-105; M. Scanlan, Mid West Env. Adv., Tr. 3-181; D. Monk, OR
Toxics Alliance, Tr. 3-220; R. Zars Esq., Tr. 3-254; Masters Community Board 1, HAG,
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Monitoring
Tr. 3-268; R. Lin, Env. Law Justice Clinic, Tr. 4-248; J. Suttles, Tulane Env. Law Clinic,
Tr. 3-210).
Several groups complained about EPA's January 2004 final action and one group specifi-
cally requested that EPA reverse its position. (NW Env. Defense Ctr. (NWEDC), OAR-
2004-0022; J. Walke, NRDC, Tr. 1-111). Environmental commenters also asserted that
Clean Air Act requires that States have the ability to impose new monitoring where
necessary in the permitting authority's view to assure compliance. (Comments on Set-
tlement, OAR-2004-0075-0078; K. Haragan, Environmental Integrity Project (EIP), Tr.
1-254).
One environmental group said that monitoring was being left out of initial permits on the
assumption that it would be added during renewal, but that it was not being added.
(NWEDC, OAR-2004-0022). One environmental commenter said that stack tests often
are not done when they were required and that although they had been successful in
getting additional monitoring added to permits in some instances, they had not been
successful in getting continuous monitoring added. (L. Welch, Mid-Atlantic Environ-
mental Law Center, Tr. 1-183, 206, 243).
One environmental commenter recommended that continuous particulate monitors be
required. (Wilson, EIP, Tr. 2-103). Several environmental commenters said that COMS
should be used to determine compliance instead of Method 9 if they are installed. (R.
Ukeiley, GA Center of Law, Tr. 3-077; S. Prakash, WE ACT, Tr. 3-229; G. Hayes Esq.,
Tr. 4-196). Once environmental group also commented that there was not adequate
monitoring to enforce startup exemptions. (R. Ukeiley, GA Center of Law, Tr. 3-070).
At least one environmental group complained that the CAM rule does not provide the
public with knowledge or certainty that industry knows what its emissions are and delays
imposition of monitoring until permit renewal. (J. Walke, NRDC, Tr. 1-111).
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Industry Comments
A number of industry commenters described new monitoring or operational restrictions
that had been included in permits as new substantive requirements without associated
underlying applicable requirements. In some cases it was not clear which version of
EPA's rules were in effect at the time the permit was issued. (Gas Processors Associa-
tion (GPA), OAR-2004-0075-0016; American Chemistry Council (ACC), OAR-2004-
0075-0049; American Forest & Paper Association (AF&PA), OAR-2005-0075-0053; D.
Rowe, Alliance of Automobile Manufacturers (The Alliance), Tr. 4-56). In other cases,
commenters specifically stated that they continued to have new monitoring terms im-
posed even after EPA concluded that its rules did not provide State permitting officials to
impose new monitoring where there is already periodic monitoring in the underlying
requirement. (Ohio Chemistry Technology Council (OCTC), Ohio Manufacturers' Asso-
ciation (OMA), and Ohio Chamber of Commerce (OCC), OAR-2004-0075-0083; Na-
tional Petrochemical & Refiners Association, OAR-2004-0075-0046 and 0088; Utility
Air Regulatory Group (UARG), OAR-2004-0075-0055; S. Murawski, Esq., Gardner,
Carlton & Douglas, Tr. 2-024).
Numerous industry commenters asserted that imposition of new monitoring (other than
the very limited gap-filling allowed under the "periodic monitoring" provision) was
unlawful. (ACC, OAR-2004-0075-0049; OCTC, OMA, and OCC, OAR-2004-0075-
0083; Clean Air Implementation Project (CAIP), OAR-2005-0052; UARG, OAR-2004-
0075-0055; D. Bolt, Western States Petroleum Association (WSPA), Tr. 4-320).
A number of industry comments complained specifically about the imposition of new
parameter monitoring and operational restrictions that were not a good indicator of com-
pliance or noncompliance. (GPA, OAR-2004-0075-0016; ACC, OAR-2004-0075-0049;
AF&PA, OAR-2005-0075-0053; T. Wyles, AF&PA, Tr. 4-36; The Alliance, OAR-2004-
0075-0056; Air Permitting Forum, OAR-2004-0075-0074; B. Hermanson, ACC, Tr. 2-
368; J. Admire, GPA, Tr. 4-161). One industry commenter provided citations to State
permit appeal decisions in which the board found that the operational restrictions that had
been imposed had no relationship to compliance. (OCTC, OMA, and OCC, OAR-2004-
0075-0083).
On industry commenter provided examples of how addition of new monitoring was a
major problem that often requires source to appeal their permits. (National Environ-
mental Development Association's Clean Air Project (NEDA/CAP), OAR-2004-0075-
54; L. Ritts, NEDA CAP, Tr. 4-185). Several commenters noted that each additional
monitoring requirement can be very expensive. (S. Murawski, Esq., Tr. 2-024; A. An-
drew, CASE Coalition, Tr. 2-191). As an example, one commenter noted that even a
requirement to check equipment of visible emissions per shift is costly because it requires
scheduling, observation, reporting and certification. (A. Andrew, CASE Coalition, Tr. 2-
190). The commenter also complained that periodic monitoring was not being imple-
mented consistently. (A. Andrew, CASE Coalition, Tr. 2-193)
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Monitoring
Several industry commenters complained about the excessiveness of "periodic monitor-
ing" that was being imposed for units that did not have ongoing periodic monitoring and
several suggested criteria determining frequency. (American Petroleum Institute, OAR-
2004-0075-0047; Eli Lilly and Company, OAR-2004-0050; CAIP, OAR-2005-0052; The
Alliance, OAR-2004-0075-0056; CASE Coalition, OAR-2004-0075-0085; UARG, OAR-
2004-0075-0055; D. Bolt, WSPA, Tr. 4-320; D. Kalina, RR Donnelley, Tr. 2-299).
An industry consultant commented that he had seen a number of permits where additional
monitoring had been added even were periodic monitoring was already required and
expressed the view that Congress did not intend monitoring to be the sole determination
of compliance. (S. Evans, Clean Air Engineering (CAE), Tr. 2-114) . The consultant
commented that appropriate monitoring can be very source specific and that monitoring
between tests might be assured by operating the source under the same conditions as
when the compliance test was performed. (S. Evans, CAE), Tr. 2-134).
Regarding the Compliance Assurance Monitoring (CAM) rule, one industry commenter
complained that States were not allowing changes in the parameter monitor levels under
CAM even when they were based on subsequent tests that demonstrated compliance. (T.
Wyles, AF&PA, Tr. 4-35). Another industry commenter described unresolved issues
with CAM applicability where MACTs regulated the same pollutant. D. Kalina, RR
Donnelley, Tr. 2-299). An industry consultant felt that the CAM rule was working well
and that, when implemented properly, it did provide a reasonable assurance of compli-
ance. (S. Evans, CAE, Tr. 2-141).
State/Local Permitting Agencies and Government Comments
One Federal government commenter stated that the program had created new monitoring
for emissions sources that was not necessary. (Navy, OAR-2004-0051).
Several States complained about the lack of guidance on monitoring and the burdens that
imposes on States. (M. Reis, New York State Department of Environmental Conserva-
tion (NYDEC), Tr. 4-114; L. Rector, NESCAUM, Tr. 4B-51; H. Abrams, Georgia Envi-
ronmental Protection Division (GEPD), Tr. 4B-80; D. Campbell, Iowa Department of
Natural Resources (IDNR), Tr. 4-75). One State commented that identifying "appropri-
ate periodic monitoring" continues to be a "daunting task," but that it believes that the
program results in environmental benefit. (Michigan Department of Environmental
Quality (MDEQ), OAR-2004-0075-0021). Several States indicated that they had devel-
oped their own guidance on "periodic monitoring" given the lack of EPA guidance.
(MDEQ, OAR-2004-0075-0021; H. Hollenbach, MDEQ, Tr. 4B-23; IDNR, OAR-2004-
0075-0087; D. Campbell, IDNR, Tr. 4-79). One State said that they impose periodic
monitoring when there was no monitoring requirement but that they did not otherwise
add monitoring. (J. Kitchens, Alabama Department of Environmental Management
(ADEM), Tr. 4B-76).
Several air pollution control agencies asked EPA to reintroduce gap-filling authority at
least during the period that it would take to complete rule revisions and asked EPA to
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Monitoring
provide criteria for periodic monitoring. (STAPPA/ALAPCO, OAR-2004-0075-0048; J.
Abrams, GEPD, Tr. 4B-83). Another State supported EPA's moving forward with the
steps outlined in the January 2004 final action, but also stated that EPA must promulgate
or revise rules governing "adequate" monitoring and should provide national guidance
regarding appropriate frequency for testing for various emissions units. (Ohio EPA,
OAR-2004-0075-0082).
One State agency commented that case-by-case review and enhancement of monitoring
was very resource intensive and contentious, and as a result was a poor approach. The
agency also felt strongly that "gap-filling" monitoring should be imposed in Title V
permits only in very limited circumstances and requested more EPA guidance and over-
sight. The agency felt that monitoring generally should be enhanced through rulemaking,
starting with the NSPS. (Bay Area Air Quality Management District (BAAQMD), OAR-
2004-0075-0089; P. Hess BAAQMD, Tr. 4-147, 4-156). The agency stated that the lack
of monitoring in the NSPS generally was not a problem because the SIP included more
stringent rules that do contain monitoring. (P. Hess, BAAQMD, Tr. 4-157).
One State indicated that it discovered through Title V permitting that a number of sources
had not complied with monitoring requirements in preconstruction permits and that as a
result monitoring was added through Title V and emissions were reduced. That same
State indicated that it has addressed monitoring through a "presumptive norm schedule"
(developed in cooperation with EPA Region 2) and that imposition of additional monitor-
ing had resulted in more permit appeals than any other issue. The State indicated that
there is too little monitoring and encouraged EPA to add requirements to Federal rules.
(New Jersey Department of Environmental Protection (NJDEP), OAR-2004-0075-0017;
W. O'Sullivan, NJDEP, Tr. 4B-38).
Regarding the Compliance Assurance Monitoring (CAM) rule, a group of air pollution
control agencies thought that it was too early to tell if CAM would be successful in the
long run, the group thought the approach would provide a reasonable, and in some cases
superior, option for minimizing emissions. (STAPPA/ALAPCO, OAR-2004-0075-0048;
J. Bradbent, STAPPA/ALAPCO, Tr. 4-95). One State complained that the CAM rule
requirements were too ambiguous. (IDNR, OAR-2004-0075-0087). One agency ex-
pressed concern that CAM was being imposed based on a source's potential to emit
rather than actual emissions, which did not allow them to focus on processes that have the
most risk. (M. Lake, San Diego County Air Pollution Control District, Tr. 4B-135).
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Title I /Title V Interface
4.4 Topic: Title I/Title V Interface
Issue/Observation Description
This topic addresses problems that have arisen in implementing the Title V program
where the "applicable requirements" listed in the Title V permit may, for one reason or
another, not reflect the current operations or requirements of the source. Title V requires
permits to list all applicable requirements, many of which originate under the authority of
Title I. This topic includes two basic types of Title I/Title V interface issues that were
raised during the public comment period:
1. Updating SIP-based (major or minor NSR permits) using the Title V process. In this
situation, a minor or major NSR permit contains terms established prior to construc-
tion, but those terms no longer represent current operations or the facility would oth-
erwise like a particular term to be changed. The question is what process can be used
to either ensure that the Title V permit reflects current operations or to change under-
lying SIP-based permit terms and whether streamlining can be achieved.
2. The so-called "SIP gap" occurs when a State has revised its State regulations, but
EPA has not approved a matching revision to the SIP. Under such circumstances,
EPA has required the State to continue to include the old SIP requirement in Title V
permits, even though the requirement is no longer included in the State's regulations.
In most cases, however, EPA has not objected (in writing or orally) to the State's re-
quest to revise its SIP, but has instead simply failed to act on the State's submission.
States resist including provisions in the Title V permit that no longer apply under
State law.
Supporting Information
1. Updating SIP-Based Permits
The Task Force received extensive testimony indicating that the incorporation of applica-
ble requirements from construction permits and the process for updating those require-
ments is not working well. All commenters that spoke to this issue stated that EPA has
imposed a 2-step process for updating previously-issued SIP permits and indicated that
this practice has:
(1) imposed delays in permitting and permit revisions,
(2) required States and sources to spend resources doing the same tasks twice, and
(3) created enforcement exposure for sources when there is no substantive disagree-
ment about applicable requirements and no environmental impact.
Commenters indicated that EPA's process is cumbersome and that early EPA efforts to
address this issue have been largely unsuccessful in achieving streamlining.
Numerous people presented information at the public meetings explaining the problems
related to updating older SIP-based permits. Several examples of obsolete, outdated or
redundant permit terms were given and a desire was expressed to use a single process to
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Title I /Title V Interface
update these requirements at the request of the permitted facility. The identified concern
focused on the need to undergo a 2-step (and in California, apparently, a 3-step) process
to update permit terms. These examples were provided to the Task Force during testi-
mony and in written comments. They illustrate the types of practical problems that have
arisen in the implementation of the program. Please see the recommendations regarding
how the Task Force believes these problems can be addressed.
Example Type 1 - Outdated Permit Requirements: Examples provided in testimony
included situations where (1) the minor NSR permit lists equipment and associated limits
for equipment that has been removed and the source seeks removal of the outdated terms,
or (2) the minor NSR permit included requirements to operate a control device to meet
permit limits but the source subsequently achieved the emission limits using pollution
prevention {i.e., low VOC coatings), and sought removal of the terms requiring it to
operate the control device. In this latter case, energy savings and emission reductions
would result from not operating the control device when it is not needed to meet emission
limits.
Example Type 2 - Redundant Permit Requirements: One of the examples provided was a
permit that imposed several redundant requirements all designed to achieve one emission
limit, such as a requirement to operate an incinerator at a particular efficiency whenever
the process is operating and a temperature limit. In this example, the source could have
achieved the required destruction efficiency at a lower temperature than specified in the
permit and wanted to change the permit to require it to comply with whatever tempera-
ture showed compliance during the most recent stack test rather than to specify a particu-
lar temperature value. By lowering the temperature, less energy would be needed to
operate the control device. The source wanted to modify its requirements to retain only
the permit term specifying the efficiency requirement (e.g., 95% destruction). The source
proposed to use the temperature showing compliance in the most recent stack test to show
compliance but that temperature level would not be a separate limit in the permit.
Example Type 3 - State Operating Permits Reflect Change But the Construction Permit
Has Not Been Updated: Another type of situation is where a State or local agency issued
a construction permit but subsequently used a State-issued operating permit to embody
the operating requirements. As operations changed over the years, the State would revise
the State-only operating permit but not update the construction permit. In some cases, the
State's operating permit program was a part of the SIP and in others, it was not. When
the State begins implementing the Title V program, it realizes that the construction permit
still reflects the old operations and EPA required the terms of the construction rather than
the State operating permit to be included in the Title V permit because the construction
permit had never been revised to eliminate the requirement. Whether or not EPA was
correct in ignoring that the current State/local operating permit that no longer imposes the
same requirements, additional costs and potential compliance certification issues arose.
One of the examples provided in this category was a stack testing requirement on a com-
bustion device for SO2 that had been included in a construction permit. Subsequently, the
State issued an operating permit to prohibit burning fuel oil. EPA required the local
agency to include the stack testing requirement in the Title V permit even though it was
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Content Issues
Title I /Title V Interface
clear that the source could never exceed the SO2 limit burning natural gas. EPA required
that the construction permit be revised before the stack testing requirement could be
eliminated. In the meantime, the source was forced to resume annual testing for SO2 at a
cost of $40,000 per year.
Example Type 4 - Incorrect Requirements: In some cases, mistakes were made in the
original construction permit. One example was where Stage I vapor recovery was re-
quired for a unit not subject to that requirement. Another example was where an emis-
sion limit was established based on projected operating levels using an assumed emission
factor. When the emission factor turned out to be incorrect, the source applied for a
revision to the construction permit (before the Title V permit was issued). Due to back-
logs in permit processing at the State level, the construction permit was not updated prior
to issuance of the Title V permit and the Title V permit reflected the limit in the construc-
tion permit. The source was forced to submit deviation reports simply because the con-
struction permit revision had not been processed.
In each of the above examples, commenters reported to the Task Force that the source
was required to go through a 2-step process: first, to update the underlying permit and
then an almost identical process to update the Title V permit. The practical effect of the
2-step process is that it often requires two public comment periods, review by two differ-
ent permit writers at the State, and other redundant administrative steps. All of this re-
dundancy results in significant delay in issuing a final Title V permit that reflects the
source's applicable requirements. In the meantime, sources are faced with either comply-
ing with permit terms no longer relevant or reporting deviations from Title V permit
requirements. Commenters noted that the procedure for using the Title V process to
update old NSR permits outlined in White Paper No. 1 is not being followed by the States
and some EPA regions. Some commenters believed that the States view it as an overly
cumbersome process.
Discussion: In discussing this topic, Task Force members suggested that we explore the
practices employed in Michigan and Illinois because these States have included language
in their Title V permits that appears to authorize changes to underlying Title I require-
ments. In follow-up, we were able to contact Michigan, which includes two captions on
the cover of its Title V permits (which Michigan calls the Renewable Operating Permit or
"ROP"). The first references the Title V or ROP authority and the second references the
fact that the ROP also constitutes a source-wide permit to install {i.e., major or minor
NSR construction permit). The original purpose of this approach was to allow consolida-
tion of multiple minor or major NSR construction permits into a single construction
permit during the Title V process (assuming no other changes were required). In discuss-
ing the issue with the Michigan Department of Environmental Quality (MDEQ) staff,
however, it became clear that there is no reason a consolidated approach could not be
used for processing changes that a source seeks to a construction permit simultaneously
with the ROP. As the Task Force understands it, the consolidation of processing in
Michigan is at the source's option but does not create any new authority for the agency to
change permit limits absent a source modification request.
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Title I /Title V Interface
Consistent with feedback from other States, it seems that one of the primary obstacles to
consolidating the processing of Title I and Title V permit changes is related to staffing at
the State level. Historically, construction and operating permits have been processed by
different groups in State regulatory agencies, hindering efforts to consolidate processing.
In response, at least two States (of which the Task Force is aware) are taking steps to
consolidate these groups (Michigan and Ohio) to allow for more efficient processing.
MDEQ staff also indicated in this discussion that its program could allow a source the
option to have either consolidated processing of a Title I and Title V change (which
would generally mean a significant permit modification), or to use the current approach
which would require a construction permit change first and then the applicable procedure
for modifying the ROP (either a notice-only change under Section 70.4(b)(14), adminis-
trative amendment, minor modification, or significant modification depending on the
nature of the action).
In Illinois, steps have also been taken to consolidate Title I and Title V permitting proce-
dures. The Title V permit indicates on its face that it is both a Title V - Clean Air Act
Permit Program (CAAPP) Permit and a Title I Permit. The State has used the Title V
permit procedures to update/correct/revise old Title I permits for which applications for
modification were pending or for which new changes were sought by the source at the
same time that the Title V application was submitted. In the draft and final permit, Illi-
nois EPA uses the following identifiers to indicate what changes are being made:
Tl: Title I - identifies Title I conditions that have been carried over from an existing
permit.
TIN: Title I New - identifies Title I conditions that are being established in this permit.
T1R: Title I Revised - identifies Title I conditions that have been carried over from an
existing permit and subsequently revised in this permit.
To clarify, the new and revised terms are not created by the Illinois EPA without request
from the source but result from the source's application or request for a change to the
minor or major NSR permit terms or for a new construction project that requires a Title I
permit.
Some members of the Task Force indicated that these methods have worked well in terms
of eliminating redundant public comment periods {i.e., one for the construction permit
modification and one for the operating permit modification) and other redundant process-
ing steps {e.g., creation of terms in the construction permit and then transfer of those
terms to the operating permit with another permit writer's review time) Illinois, while
sources in Michigan have reported more difficulty in achieving combined processing of
Title I and Title V changes to date. Michigan is making progress toward such an ap-
proach, however, and expects that sources will have the option of consolidated or sepa-
rate processing in the near future.
In addition to the approaches in Illinois and Michigan, New York reported that it had
done a "permit cleanup" in the process of initial permit issuance. Through this process,
New York eliminated all of the existing Title I permits. One concern that was raised
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about New York's process, however, was that the public notice did not identify that the
underlying permits were being revised or updated. Similarly, Indiana included a term in
its Title V permits indicating that all previously issued Title I permits were either in-
cluded in the Title V permit or superseded by the Title V permit.
The Task Force discussed the use of White Paper No. l's parallel processing approach
which preserved procedures required under both Title I and Title V while seeking to
eliminate redundant steps between the two. Specifically, we discussed that in White
Paper No. 1 EPA found that the "public participation procedures for issuance of a part 70
permit satisfy any procedural requirements of Federal law associated with any NSR
permit revision" and that this "parallel processing approach is also an excellent opportu-
nity to minimize the administrative burden associated with such an exercise." EPA
provided that by "conducting a simultaneous revision to the NSR permit, the permitting
authority would be revising the "applicable NSR requirement" for purposes of determin-
ing what must be included in the part 70 permit." Thus, White Paper No. 1 seeks to
capitalize on the process that will already occur in part 70 to simultaneously satisfy Title
I procedural requirements when the source seeks a change to a minor or major NSR
permit.
Most members of the Task Force believed that a lot of the problems identified by com-
menters could be alleviated by permitting authorities making more efficient use of White
Paper No. 1. They also recognized however, that many State permit writers are reluctant
to go back to physically revise a construction permit that they consider null and void.
Nonetheless, they felt that wider use of White Paper No. 1 could be helpful and this
resulted in Recommendation #1. In discussing Recommendation #1, there were no objec-
tions raised to its use except by some States who felt that its procedures could be cumber-
some. There were some Task Force members who had not reviewed White Paper No. 1
since it was issued so long ago or had not seen it used in permits they reviewed. During
the discussion, they cited this as a reason that they did not feel comfortable endorsing
broader use of it at this time. Upon further review, these members indicated that they did
not object to parallel processing per se but had concerns with those aspects of White
Paper No. 1 that suggest a permitting authority can exclude certain NSR permit condi-
tions from a Title V permit without providing notice of and an opportunity for comment
on that decision, (e.g., they object to White Paper No. 1 language indicating that precon-
struction permit terms may be eliminated because they are "extraneous, out-dated, or
otherwise environmentally insignificant and inappropriate for inclusion in a Federally-
enforceable permit."). Industry members of the Task Force clarified that their view of
Recommendation #1 was that it addressed only the parallel processing provisions of
White Paper No. 1, which ensure that whatever process is required in the underlying SIP
is satisfied and which dictate that the level of process that must be provided in Title V to
qualify for such parallel processing.
On Recommendations #2(a) and #2(b), Task Force members tried to identify ways to
streamline the process under the part 70 rules while preserving source flexibility. Option
A addresses testimony that the Task Force received indicating that some States are not
taking advantage of the flexibility in the part 70 rules to use administrative amendment
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Content Issues
Title I /Title V Interface
procedures to update the operating permit when a construction permit is issued. Testi-
mony indicated that the States are not providing EPA review opportunity during the
processing of the construction permit and if they did, an administrative amendment could
be used to process the revision. Option B addresses the situation where a source has
obtained a construction permit that qualifies as an off-permit change and recommends
that States utilize these provisions of the part 70 rule to the maximum extent possible.
Options C and D address the situation where the off-permit provisions are not available.
In some situations, the source may have sufficient lead time for its construction to ac-
commodate consolidated processing of the construction and operating permit modifica-
tion while in others, construction needs to begin more quickly. These options indicate
that the source should be able to choose between these two options as long as the re-
quirements in the rule applicable to both programs are met. Some States are already
using this approach but this recommendation would encourage other States to do so, to
the extent consistent with their Title V program rules. While there was not disagreement
that the rules allow these options, environmental group representatives explained their
opposition to Recommendation #2(a) as rooted in their disagreement with the off-permit
change provisions in the rules.
The Task Force members generally recognized that the interface of Title I and Title V
permit processing presents an opportunity for streamlining the process and potential cost
savings to both industry and State permitting authorities. Streamlining is most needed in
States that have separate Title I and Title V programs. The recommendations we consid-
ered are directed at the timing of the change to the Title I permit terms.
Finally, it is worth noting that even though we did not offer recommendations on staffing
issues, the Task Force members believed that at least part of the problem is emanating
from the approach of separately staffing the construction and operating permit programs.
Staff responsible for processing construction permits are unfamiliar with the processing
requirements of the operating permit program and vice versa, making consolidation of
processing difficult at best. There was a sense that, as States consolidate their construc-
tion and operating permit groups so that one person is responsible for a given source,
parallel or combined processing will occur and this will be beneficial.
2. "SIP Gap"
This issue involves the timing lag between a State's adoption of a new rule under a SIP
and EPA's approval of that rule to make it part of the SIP and Federally-enforceable
under Title V. Oral testimony cited the huge backlog of SIP revisions at the EPA level,
noting that some SIP revisions have been pending for many years and, in many instances,
EPA has not conveyed in writing any objections to the State rule. Commenters noted that
the extreme lag in timing causes problems for sources, inspectors and the public with
respect to permitting.
Commenters noted that when a State changes its rules, EPA is requiring the old SIP rule
to remain in the Title V permit. Often these requirements are in conflict with each other.
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Therefore, this creates confusion for the agencies, source owners and public on what is an
applicable requirement.
Example Type 5 - Conflicting or Duplicative Requirements: A State makes a change to
an emission limit or reporting requirement in a regulation. EPA does not act on the
State's request to revise its SIP to reflect the change that has already been made to the
State regulation. There are two requirements on a source - one in the State-adopted
program and another in the Federally-approved SIP. As it stands, the Title V permit must
include the SIP requirement. States typically also include the State requirement as a
"State-only" condition of the permit. In many States, a source must certify whether it is
in compliance with both the SIP requirement and the State regulatory requirement. This
adds unnecessarily to the complexity of the permit and can cause confusion for the source
owner, the public and the regulatory agencies.
Discussion: The discussion on the SIP Gap issue revolved around ways that the SIP-
approved process could be "frontloaded" to ensure that any problems with a SIP revision
are identified early in the process by EPA. The Task Force members recognized that
recommendations by this group are unlikely to provide relief but also noted that other
groups have recently begun to look at ways to streamline and expedite the SIP revision
process. Task Force members were concerned about sources being faced with conflicting
State and Federal requirements and the compliance certification problems that such con-
flicts create. Although the Task Force was not able to develop comprehensive and con-
crete recommendations for EPA to implement to solve this problem, there was consensus
that EPA should take steps to expedite SIP revisions and to ensure that sources are not
faced with a choice of complying with either Federal law or State law.
The Task Force also discussed equivalency determinations under Section 70.6(a)(l)(iii).
It was noted that EPA placed a provision in the regulations to allow a source to apply for
an equivalent limit whereby the permit condition would stand in for a SIP provision if it
meets an equivalency test and if the SIP allows for equivalency determinations. When
EPA issued the original part 70 rules, however, the Agency did not provide any model
language or any criteria to clearly indicate what a SIP would need to contain in order for
a State to avail itself of this provision in the part 70 rules. Consequently, it has not been
used to the knowledge of the Task Force members. The Task Force discussed the poten-
tial applicability of 70.6(a)(l)(iii) in a few situations that could alleviate the Title V
problems rooted in the SIP backlog.
For example, where a new State rule is simply more stringent than a SIP rule and uses the
same units of measure and test methods, equivalency determinations requested by a
source could be straightforward. In the situation where a SIP rule requires equivalent or
greater emission reductions but is different in form, the source can request that the per-
mitting authority determine that the new rule is equivalent to the prior SIP rule. In the
situation where a test method awaiting SIP approval has been developed and the source
shows equivalency in its application, the permitting authority could also make an equiva-
lency determination. In discussing Recommendation #5, some Task Force members
indicated that, at that time, they were not familiar with the provision and the statements
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Content Issues
Title I /Title V Interface
EPA made regarding it when the part 70 rules were promulgated in 1992, which is not
surprising given that the provision has not received any use since promulgation.
Environmental group representatives on the Task Force indicated that they consider 40
C.F.R. § 70.6(a)(l)(iii) to be illegal in that it authorizes the unlawful revision of underly-
ing SIP requirements. They explained that because a State limit pending SIP approval
has no Federal status as an applicable requirement, it cannot be used as a substitute for a
preexisting applicable requirement. They stated that a State does not have "inherent
authority" to "include at least as stringent" limits in Title V permits; they believe that it is
EPA's role—not the State's— to determine whether a proposed SIP change would consti-
tute backsliding from an existing SIP requirement.
Subject to the concern expressed above, industry and permitting authority representatives
stated that States generally are making rules more, rather than less, stringent. Thus, these
Task Force members considered equivalency determinations under 40 C.F.R.
§70.6(a)(l)(iii) to be a potentially viable option. They agreed, however, that in instances
where a limit is relaxed, the equivalency determination approach would not be a viable
option because the new limit would not be at least equivalent to the prior one. As noted
above, the Task Force members supporting this approach were concerned that there is no
EPA model SIP language that would allow such determinations. These members ex-
plained that model language would be useful because it would encourage uniformity
across States and allows a State to be sure that its rule language will be approved if they
promulgate it. Several Task Force members also wanted EPA to consider whether there
is a way that existing SIPs can be considered to provide inherent authority to create
equivalent limits in the Title V permit issuance process when requested in a permit or
permit revision application.
Recommendations
1. Updating and Revising NSR Permits
Recommendation #1
When requested by the permittee, States should make better use of White Paper No. l.'s
procedures for parallel processing of construction permit revisions with the operating
permit process during initial issuance, revision and renewal.
In Favor (12)*: Broome, Sliwinski, Golden, van der Vaart, Kaderly, Wood, Morehouse,
Freeman, Hagle, Paul, Schwartz, Hodanbosi
Opposed (6)*: Powell, Raettig, Owen, Keever, Palzer, Van Frank
Abstentions:
Clarifications: Powell, Raettig, Keever, Palzer and Owen clarify that the general
concept of processing NSR and Title V permits simultaneously is not objectionable,
so long as the process satisfies the SIP and part 70 requirements for public notice and
comment. They oppose this recommendation because they object to certain
statements in White Paper #1 as referenced in the discussion section of this paper.
*Note: Number in parentheses () is the total number of Task Force members voting for this position.
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Content Issues
Title I /Title V Interface
Recommendation #2(a)
Alter the initial permit is issued, to address the concern of re\isinu terms in existinu
construction permits, purl 7<) pro\ides se\eral options for sources lhat can he chosen
based on the need to implement the chanue or beuin construction While all of these
options are already a\ailaMe under part 7<). the State and reuulated industry's familiarity
with these options appears to he low New York is one Stale that has taken the approach
of allowinu the source to obtain either a construction permit, followed In a Title Y modi-
llcation or a combined construction Title Y modillcation
( )/>iioii . I: Permittinu authorities should allow sources to use an administrate e
amendment to incorporate the terms of a preconstrnction permit into the Title Y
permit in accordance with Section 7<) 7(d)( I )(\ ) This will require permittinu au-
thorities to pro\ide notice to N\\ and affected States (if any) of the construction
permit action to allow them the required Title Y objection period and to \erily
that any compliance terms required under Section 7<) (•> of the rules ha\e been in-
cluded in the preconstruction permit
()/>iioii />: In States that allow for chanues to be made pursuant to Section
7t) 4(b)( 14). qualifying construction permits (not Title I modifications and that do
not cause a \iolation of an existinu permit term), permittinu authorities should al-
low sources to implement the construction permit chanue
()/>iioii ( ': W hen requested by the source, permittinu authorities should pro\ide
for consolidated processing of the construction permit and the Title Y permit
modillcation In most cases, this will require a siunillcant permit modillcation
When there is sufficient lead time for a project, it makes sense to consolidate
processing so that the source can complete construction and beuin immediate op-
eration
()/>iioii P: The current practice in many States is to process the construction per-
mit issuance modification and then to use the applicable Title Y permit modillca-
tion procedure to incorporate the new terms and delete 110 lonuer applicable terms
from the Title Y permit This will either be a minor or a siunillcant modillcation
under the Title Y rules This option should remain a\ailable because some
sources will want to obtain a construction permit quickly to mo\e a project for-
ward but may ha\e time to process the operating permit chanue I11 addition, in
some cases, the exact operating permit terms will not be known before construc-
tion beuins Thus, this option can be a \iable one but can be more cumbersome
when a siunillcant Title Y modillcation is required Therefore, permittinu au-
thorities should ensure that Options A throuuh (' are a\ailable and that sources
and permit writers are aware of the requirements to qualify for such procedures
In invar (12): IJroome. Sliwinski. (iolden. Paul, kaderly. Schwartz. Morehouse.
Wood. \an der Yaart. Ilodanbosi. freeman. I laule
Opposed ((>): Powell. Owen. kee\er. Raettiu. Palzer. Yan l-'rank
. \bsteiitions:
((larificalion on next page}
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Title I /Title V Interface
((larification for Recommendation 2(a))
Clarifications: \ an dor X'aail clarilles lhal his support of Option A is hasecl 011 the
a\aiIahiIil\ of the permit shield under 7<) 7(d)( I )(\ ) ancl (d)(4) Powell. Owen.
kee\er. aiicl Raettiu oppose Options 1} aiicl I) because they belie\e all I'eclerall\-
enforceable construction permits authorizinu new units or modifications to existinu
units are Title I modifications that must be processed under significant modification
procedures, contrary to that \iew. Options IJ and I) suuuest such chanues could be
processed "off-permit" or as minor modillcations. Likewise, while they do not
oppose consolidated processing, they oppose Option ("s suuuestion that some
construction permits be processed as minor modillcations. i.e.. without notice and
opportunity for comment They explain that federal regulations uo\erninu minor and
major \SR permits require such public participation opportunities IJroome clarilles
that the Slate would comply with whate\er pro\ isions for processing Title I permits
are appro\ed in the SIP and therefore these options are all within the scope of both
existinu Title V and SIP rules and that LIWs promulgated interpretation is that minor
\SR permits are not Title I modillcations
Recommendation #2(b)
I nder any of the abo\e options, once the construction permit terms ha\e been incorpo-
rated into the Title V permit, the Title V permit can list the applicable requirement as the
Title I rules and the requirement can reside only in the Title V permit Retaining Title I
as the underlyinu applicable requirement would allow chanues to those terms to be proc-
essed throuuh minor permit modillcation procedures because there will continue to be an
underlyinu applicable requirement ser\inu as the basis for the permit terms (assuminu
they otherwise meet the minor modillcation gatekeepers in Section 7') 7(e))
In l'avor(l2): IJroome. Sliwinski. (iolden. Paul, kaderly. Schwartz. Morehouse. Wood.
\an der Vaart. Ilodanbosi. I lade, f reeman
Opposed ((>): Powell. Raettiu. Owen. kee\er. Palzer. Van frank
. 1 bstentions:
Clarifications: I lodanbosi and I lade clarify this should be an option but Stales may
choose to maintain the effect i\eness of construction permits, such that they could
remain enforceable documents Powell clarilles that she does not belie\e Title I
specific enouuh to ser\ e as a citation for the underlyinu applicable requirement, and is
concerned that this recommendation would allow re\ision of case-by-case emission
limits in preconstruction permits without public notice and comment freeman.
W ood, and IJroome clarify that the fact that the underlyinu Title I permit is \oided
does not mean that the substance of the terms created in Title I areuo\erned by Title
V procedures (i.e.. the substance ol'Title I terms are not subject to I-PA objection)
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Content Issues
Title I /Title V Interface
2. "SIP Gap"
Recognizing that the SIP approval backlog is beyond the capability of this Task Force to
solve, the Task Force believes that the following measures could improve the current
situation and help to reduce the adverse effects the backlog is having on Title V imple-
mentation
Recommendation #3
Early EPA Involvement in SIP Rule Development. A process in which EPA is able to
act in a timely manner on new State and local agency regulatory provisions that are pend-
ing SIP approval needs to be developed. States and local agencies need to develop com-
munication plans with EPA Regional Offices. In these plans, State and local agencies
must commit to including EPA in their rule development process, including stakeholder
groups, to facilitate EPA input on approvability issues. In turn, EPA must commit to
providing States with timely comments during the pre-proposal and proposal stage of
regulatory development to avoid States' adopting provisions that EPA considers "unap-
provable." Both States and EPA must commit adequate resources to implement this
process.
In Favor (18): Broome, Palzer, Golden, Sliwinski, Paul, Freeman, Hagle, Schwartz,
Morehouse, Raettig, Owen, Wood, Keever, van der Vaart, Kaderly, Powell,
Hodanbosi, Van Frank
Opposed:
Abstentions:
Clarifications:
Recommendation #4:
Expiration of Conditions L pon Approval of Sew SIP Provisions. I acii with timely
re\iew and appro\ill procedures there will he some ine\itable lag lime in the appix>\ill
process Moreo\er. il is unlikely lhat EPA will "catch up" with the backlog any lime in
the near fuliii'c W illi continual processing of Title V operating permits, there will he
permits issued or renewed between the time a Slate or local agency implements a regula-
tion and l-IW appro\es thai regulation lor inclusion in the SIP To address this situation,
permit conditions with the old regulatory pro\ isions could he written to expire upon
I'PA's appro\al of the new regulatory pro\isions The SIP pro\isions pending SIP ap-
pro\al would also include a statement that they become federally enforceable and replace
the prior SIP pro\ ision upon the effect i\ e date of any IIP. \ SIP appro\ al of that pro\ ision
This would allow the new regulatory requirements to he included in the permit without a
permit re\ ision
In Eavor(IH): Broome. Palzer. Golden. Sliwinski. Paul, freeman. I lagle. Schwartz.
Morehouse. Raettig. Owen. Wood. Kee\er. \an der Vaart. Kaderly. Powell.
I lodanhosi. Van I'rank
Opposed:
. 1 bstentions:
C larifications:
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Content Issues
Title I /Title V Interface
Recommendation #5
L tilize Ft/uivalency Determination Authority W hen There Is a .SIP Rule Pending Ap-
proval. Suites should utilize whene\er possihie the llcxihilily pro\ iclecl In Section
7<) (Mn)( I )(iii). under which a State may choose lo cidopi a SIP pro\ision lhal would
authorize sources lo nicel either the SIP limit or tin equi\alenl limit to he formulated in
the permit process This pro\ ision of the rules could he used to include only the limit lhal
is included in the rule pendinu SIP appro\ a I. as lonu as the new rule is et|Lii \ alenl or more
slrinuenl in terms of emission reduction as the old rule In ueneral. SIP rules are becom-
ing more strinuent Sometimes they are re\ised to pro\ide additional flexibility hut for
the most part, are et|Lii\ alenl to prior rules in terms of emission reductions One potential
impediment to this approach is that the part 7<) rules require that the SIP pro\ ide authority
lor equi\alency determinations. I-P.\ should recounize States" inherent authority to
interpret their SIPs and include "at least as strinuent" limits in Title V permits If this is
not possible so that a SIP re\ ision is required to pro\ide the authority for implemeiilinu
Section 7<).(i(;i)( I )(iii). I-P.\ should de\elop standard SIP lanuuaue that it would deem
appro\ able to pro\ ide a Slate with the ueneral authority to adopt equi\ alenl limits in Title
Y permits when requested by the source This would allow States to submit a "model"
SIP re\ ision that could then be adopted and appro\ed quickly by l-P.\ (see SIP hacklou
issue abo\ e)
In l-'avor (12): Broome, (iolden. Sliwinski. Paul. I'reeman. I lade. Schwartz.
Morehouse. Wood. \an der Yaart. Ilodanbosi. Kaderly
Opposed ((>): Powell. Raettiu. Owen. Kee\er. Palzer. \'an l-'rank
. 1 hstentions:
Clarifications: I 'reeman and IJroome clarify that the discussion of this recommendation
was limited to situations where the source requested the inclusion of the equi\alenl
term in llic federal l\-enforceable section of the permit
Related Topics: Title V Costs; Compliance Certification
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Content Issues
New Substantive Requirements and Development of Operational Restrictions
4.5 Topic: New Substantive Requirements and Development of
Operational Restrictions
Issue/Observation Description
A concern that was raised repeatedly at the public meetings and in written comments to
the Task Force was that some States are creating new substantive limits on source opera-
tions in Title V permits, which commenters stated was beyond the authority granted by
Title V. The concern includes both converting monitoring ranges into "never to be ex-
ceeded" limits in the permit as well as creating new or changing existing emission limits
(e.g., adding a 4 lb/hr limit or changing 5 lb/hr to 4 lb/hr). Commenters who raised these
concerns considered such permit conditions to be new substantive limits that are not
authorized by Title V.
• Conversion of Monitoring Into Limits: In the process of including monitoring pa-
rameters in permits, a few permitting authorities have taken the additional step of re-
quiring sources either to comply with monitoring ranges or to be considered in viola-
tion of their permit. Through this practice, these States are making monitoring pa-
rameters separately enforceable limits. If an emission unit operates outside a set
monitoring range, it is automatically in violation of the permit, even if its emissions
are compliant. This practice has created significant controversy, in particular as to
whether certifying to "compliance with the terms and conditions of the permit" refers
to the monitoring conditions as limits or as a requirement to do the monitoring and to
respond if atypical situations occur. Industry objected to the practice of converting
monitoring parameters into enforceable limits in all cases, but particularly when no
correlation had been established between the ranges and the applicable emission limit.
• Revisiting Previously Established Limits or Creating New Source Limits: The second
way that this issue was raised in testimony and written comments involved where a
permit writer tried to change a limit that was in an applicable requirement or tried to
create a wholly new emissions limit on a unit. Based on the information presented to
the Task Force, this situation seemed to be more limited and hopefully not a systemic
issue. While it was recognized that this is a problem when it does occur, the Task
Force did not take up specific recommendations in this regard except to recognize
that Title V does not authorize the creation of new emission limits.
Supporting Information
Relevant Regulatory Provisions: Several portions of the Part 70 rules are relevant.
Section 70.1 provides that "Title V does not impose substantive new requirements" but
that "it does require ... that certain procedural measures be adopted especially with re-
spect to compliance." 40 CFR § 70.1(b).
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Content Issues
New Substantive Requirements and Development of Operational Restrictions
Section 70.6 governs permit content and provides in relevant part:
(a) Standard permit requirements. Each permit issued under this part shall include
the following elements:
(1) Emission limitations and standards, including those operational requirements and
limitations that assure compliance with all applicable requirements at the time of
permit issuance.
(i) The permit shall specify and reference the origin of and authority for each
term or condition, and identify any difference in form as compared to the ap-
plicable requirement upon which the term or condition is based.
(3) Monitoring and related recordkeeping and reporting requirements, (i) Each
permit shall contain the following requirements with respect to monitoring:
(A) All monitoring and analysis procedures or test methods re-
quired under applicable monitoring and testing requirements, in-
cluding part 64 of this chapter and any other procedures and meth-
ods that may be promulgated pursuant to sections 114(a)(3) or
504(b) of the Act. If more than one monitoring or testing require-
ment applies, the permit may specify a streamlined set of monitor-
ing or testing provisions provided the specified monitoring or test-
ing is adequate to assure compliance at least to the same extent as
the monitoring or testing applicable requirements that are not in-
cluded in the permit as a result of such streamlining;
(B) Where the applicable requirement does not require periodic
testing or instrumental or noninstrumental monitoring (which may
consist of recordkeeping designed to serve as monitoring), periodic
monitoring sufficient to yield reliable data from the relevant time
period that are representative of the source's compliance with the
permit, as reported pursuant to paragraph (a)(3)(iii) of this section.
Such monitoring requirements shall assure use of terms, test meth-
ods, units, averaging periods, and other statistical conventions con-
sistent with the applicable requirement. Recordkeeping provisions
may be sufficient to meet the requirements of this paragraph
(a)(3)(i)(B) of this section; and
(C) As necessary, requirements concerning the use, maintenance,
and, where appropriate, installation of monitoring equipment or
methods.
The general approach in the CAM rule is to establish indicators of good operation of air
pollution control devices and to require corrective action when those indicators are out of
the "normal" range. Provided that the source responds to indicators that are out of range,
deviation from indicator ranges is not a violation of the permit (but it may indicate a
violation of the emission limit depending on the particular facts). The reader is referred
to the CAM rule as a whole for additional insight into the "indicator monitoring" ap-
proach established by that rule. The CAM approach is codified only for units subject to
CAM, which are those units with uncontrolled potential emissions exceeding major
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Content Issues
New Substantive Requirements and Development of Operational Restrictions
source thresholds. It is worth noting that the majority of emission units included in Title
V permits are not subject to CAM.
Comments Received: There were numerous comments received by the Task Force ad-
dressing this group of issues.
In terms of written submittals to the Task Force, several commenters objected to the
practice in a few States of "hard-wiring" parametric monitoring ranges into permits. In
these situations, the permitting authority either takes manufacturer recommended parame-
ters (like pressure drop on a cartridge filter) or parameters that occurred during a compli-
ant stack test (like voltage, current, or total power for an electrostatic precipitator) (Alli-
ance of Automobile Manufacturers OAR-2004-0056, Ohio Chemistry Technology Coun-
cil, Manufacturers' Association, and Chamber of Commerce OAR-2004-0075) and make
those values permit limits. If the facility operates outside of those ranges, it is considered
in violation of its permit, whether or not a violation of the applicable regulatory require-
ment has occurred. Some commenters noted this practice with respect to Compliance
Assurance Monitoring (CAM) or MACT rules and others indicated that it also occurs for
other applicable requirements, like SIP rules and construction permits. (API OAR-2004-
0047, AF&PA OAR-2004-0053, Utility Air Regulatory Group OAR-2004-0055, Alliance
of Automobile Manufacturers OAR-2004-0056, APF OAR-2004-0074, Ohio Chemistry
Technology Council, Manufacturers' Association, and Chamber of Commerce OAR-
2004-0075.)
The commenters also stated that converting monitoring into never-to-be-exceeded limits
is contrary to Title V's direction not to create new substantive requirements. It assumes a
violation when a source exceeds a monitored parameter even though the source could
well be in compliance with emission limits. Two of these commenters also noted that
this practice has been ruled unauthorized under the Title V program by the Environ-
mental Review Appeals Commission (ERAC) in Ohio except where the parametric limits
are directly correlated by the permitting authority to the applicable emissions limitation.
(APF OAR-2004-0074, Ohio Chemistry Technology Council, Manufacturers' Associa-
tion, and Chamber of Commerce OAR-2004-0075). The decision by the panel of admin-
istrative law judges in the Ohio permit adjudication did not hold use of monitoring as
permit restrictions illegal per se but required that any such restrictions correlate directly
to the emission limit so that any violation of the operational restriction also resulted in an
exceedance of the emission limit. If this cannot be done, ERAC held, no restriction can
be imposed. The decision also found that it was the permitting authority's burden to
show the correlation, not the source's obligation to show that it did not correlate. An-
other Task Force member noted that the decision found that it was the permitting author-
ity's burden to show the correlation, not the source's obligation to show that it did not
correlate. She stated that, while not agreeing that the monitoring could be converted to
enforceable limits, the Ohio judges believed that the permitting authority had to demon-
strate that the operational restrictions were equivalent to the emission limit and that the
permitting authority could not shift the burden to create such restrictions limits to the
source.
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New Substantive Requirements and Development of Operational Restrictions
There were also several oral comments addressing this topic offered during the public
meetings. See, e.g., Statements of Debra Rowe, Alliance of Automobile Manufacturers,
transcript at 4-56; Steve Murawski, transcript at 2-026; Scott Evans, Clean Air Engineer-
ing, transcript at 2-113 and 2-123. Because the comments on this topic were quite exten-
sive, we have included additional excerpts (but not all of the comments) in the attachment
to this paper.
Discussion
The Task Force discussed this issue for the first time during the discussion of the paper
on the Definitiveness of the Permit in Section 4.6 of this report. Several industry Task
Force members expressed concern at the practice of including monitoring parameters as
hard and fast limits when those parameters had not been or could not be correlated with
applicable emission limits. Other members of the Task Force raised objections to includ-
ing new parameters in the permit even if they could be correlated due to their view that
such new monitoring requirements must be developed through rulemaking.1
Task Force members and commenters were concerned that the practice of taking condi-
tions observed during stack tests and converting them to operational restrictions effec-
tively allows Title V to create new substantive limits because source tests are conducted
with a margin of compliance and under specified operating conditions. Even if a parame-
ter can be correlated to an emission level, if the source is over-complying (e.g., by
achieving a 95% capture when the rule only requires 90%), setting the parameter based
on that level effectively confiscates the compliance margin and penalizes the source that
goes beyond compliance. One Task Force member observed that this creates the wrong
incentive in terms of testing and compliance because it rewards those that operate right at
the brink of compliance and penalizes those who have a wide margin.
A State agency Task Force member stated that when he sets operational restrictions
compliance margins influence how operational restrictions have been set in those States
that use them and the degree of monitoring to be put in the Title V permit. He explained
that in his State, when the margin is wide, say 10% of the compliance level, the level of
the operational restriction is set appropriately and is not set at the 10% of compliance
level. This Task Force member indicated his view that it is important for the monitoring
to be separately enforceable because that allows the source to certify compliance. He
recognized also, however, that this could have the effect of making emission limits more
stringent or imposing large testing costs to develop a correlation between a parameter and
a limit. He also noted that in the interest of streamlining under § 70.6(a)(3) some facili-
1 One difference between this issue and that presented in the paper on the Definitiveness of the Permit in
Section 4.6 of this report is related to the accuracy of the monitoring parameters. It was stated by one
member that in his state (where restrictions are being imposed), facilities that have been asked to accept
new substantive limit and new monitoring may request a less accurate, and possibly more restrictive permit
restriction in lieu of a more expensive but more accurate monitoring method. Other members of the Task
Force explained that a permittee may always agree to a permit term but that does not mean that there is
authority to create even the monitoring. It was recognized that the topic in this paper is not the monitoring
per se but the conversion of monitoring into never to be exceeded limits, whether or not they correlate to
the underlying emission standards.
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Content Issues
New Substantive Requirements and Development of Operational Restrictions
ties being asked to accept such operational restrictions may opt to take a single limit for
multiple restrictions even if it means taking a more stringent value.
In response, another Task Force member noted that Title V does not authorize create of
new limits regardless of the factors that a State may take into account to make such new
limits more reasonable in a particular case. This member also stated that even when there
is a correlation with a limit and the parameter could be set right at the limit, there is an
additional problem in that there are now two permit terms and potentially two violations
- one of the emission limit and another of the newly created monitoring limit (as com-
pared with the situation where a regulation did specified the monitoring parameter as a
separately enforceable parameter).
Still another Task Force member noted that on the issue of permit writers simply adjust-
ing limits that this could go both ways, more or less stringent and that it was important to
ensure that Title V was not changing regulatory limits.
At this point in the discussion, it was suggested that this topic warranted a separate paper,
which was subsequently developed and discussed by the Task Force.
In its subsequent deliberations, the Task Force discussed several potential recommenda-
tions. We revisited the concern of making emission limits more stringent and the need to
ensure that Title V permits do not change emission limits by imposing new obligations.
The Task Force also discussed the relationship of this issue with the CAM requirements,
and noted that making monitoring ranges enforceable is different than the CAM approach
which uses monitoring as indicators that can trigger corrective action. It was suggested
by some members of the Task Force that this might be a more fruitful way to proceed.
The Task Force members discussed the idea of relying on CAM for development of
monitoring terms rather than creating operational restrictions for the purpose of "assuring
compliance." It was also recognized, however, that CAM only applies to large emission
units. Without agreeing to the idea of creating separately enforceable limits, the Task
Force did agree that any monitoring that would be made enforceable needs to be based on
adequate technical data so that it does not create a new, more stringent limit on the
source. One Task Force member noted that the costs of parametric monitoring are far
less than the cost of continuous monitors and stated his view that Title V would authorize
the imposition of continuous monitoring requirements notwithstanding the monitoring in
existing rules. Industry Task Force members disagreed that Title V would authorize a
State to impose continuous monitoring absent satisfaction of rulemaking requirements
under the Clean Air Act. It was reemphasized by these members that the topic of this
paper is not related to the authority to impose monitoring but rather, to the extent that a
particular monitoring term is authorized, whether it can also be converted into a limit on
source operations.
The Task Force also discussed that sources should not be considered to be in violation of
two limits in such cases since the operational restriction derives from an emission limit
(i.e., you cannot have two violations, one for violating the emission limit and one for
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New Substantive Requirements and Development of Operational Restrictions
violating the operational restriction). The Task Force spent considerable time discussing
one example offered in the testimony. This involved an electrostatic precipitator for
which the State had imposed voltage and current ranges as enforceable limits based on
the ranges that were observed during a compliant stack test. The industry representatives
pointed out that voltage and current do not correlate to emissions from a furnace and even
if they did, if the source has a compliance margin, such an approach would essentially
confiscate that margin.
The Task Force discussed that in the initial round of Title V permits, some States im-
posed operational restrictions and sources that did not appeal those provisions would
likely seek to have them removed upon renewal. Some industry representatives on the
Task Force explained their view that terms which were unauthorized at the time the
permit was issued should be removed upon renewal. The Task Force also discussed that
with CAM becoming effective upon renewal, permitting authorities should be mindful
not to continue previous operational restrictions that a source may have accepted2 but
should instead replace those limits with the requirement to have a CAM plan and meet
CAM requirements. Environmental group representatives on the Task Force stated that
they do not agree with the CAM rule and therefore could not vote for a recommendation
along those lines.
Several Task Force members noted that adding such limits (or even monitoring beyond
CAM) to a permit goes beyond statutory authority. They stated that while some read the
statute to authorize permitting authorities to revise case-by-case emission limits through
the addition of monitoring, the statute explicitly States that this is to be accomplished by
rulemaking. They believed that the rulemaking requirement was intended to assure that
monitoring did not change standards (i.e., make them more stringent).
Recommendations
Recommendation #1
Based on the principle that Title V does not authorize imposition of any new or more
restrictive emission limitations, any permit terms not in underlying emission standards:
(1) should be based on the CAM rule and the CAM submission by the facility or
developed with the agreement of the facility after consultation, or
(2) must be based on adequate technical data to ensure that they do not result in
operational restrictions that limit emissions more than the underlying requirement.
In Favor (12)*: Hodanbosi, Kaderly, Schwartz, Sliwinski, Hagle, Broome, Morehouse,
Wood, Golden, Paul, van der Vaart, Freeman
Opposed (6)*: Powell, Raettig, Owen, Van Frank, Palzer, Keever
Abstentions:
(Clarification on next page)
2 It was explained that a source might have accepted a limit, not because it agreed with that limit, but due to
an assessment of the costs of an appeal and the degree to which the limit would impact its operations. One
Task Force members stated that monitoring strategies can be more or less expensive, and that parametric
monitoring can represent a lower cost monitoring method than some other available methods, Another
member noted that cost does not determine whether or not the methods are authorized in the first place.
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(Clarification for Recommendation #1)
Clarifications: Powell clarifies that while she agrees with using adequate technical data
for monitoring, she opposes the CAM rule, believing sources must monitor directly
their emissions whenever possible, and when not possible use parametric monitoring.
Owen, Van Frank, Palzer, and Keever join Powell's clarification.
*Note: Number in parentheses () is the total number of Task Force members voting for this position.
Recommendation #2
Based on the principle that Title V does not authorize imposition of any new or more
restrictive emission limitations, in situations where parameter monitoring has not been
correlated with the emission limit, such parameter monitoring conditions must not be
treated as separately enforceable conditions from the emission limitations, but only as
indicators of a potential compliance issue.
In Favor (11): Hodanbosi, Kaderly, Schwartz, Sliwinski, Hagle, Broome, Morehouse,
Wood, Golden, Paul, Freeman
Opposed (7): van der Vaart, Powell, Raettig, Owen, Van Frank, Palzer, Keever
Abstentions:
Clarifications: Powell clarifies that her opposition is not to correlating monitoring with
limits but is based on the view that direct emission or determinative parametric
monitoring is required by Title V. Owen, Van Frank, Palzer, and Keever join
Powell's clarification.
Recommendation #3
Regardless of whether there is authority for new conditions, because CAM meets en-
hanced monitoring requirements, development of CAM plans for Title V renewals should
replace any operational restrictions that were included in the initial Title V permit for the
corresponding emission limits and units.
In Favor (11): Hodanbosi, Kaderly, Schwartz, Sliwinski, Hagle, Broome, Morehouse,
Wood, Golden, Paul, Freeman
Opposed (7): van der Vaart, Powell, Raettig, Owen, Van Frank, Palzer, Keever
Abstentions:
Clarifications: Powell opposes this recommendation because she disagrees with the
premise of the recommendation that the CAM rule's approach is sufficient to assure
compliance. Owen, Van Frank, Palzer, and Keever join Powell's clarification.
Related Topics: Monitoring, Definitiveness of the Permit
Attachment: Relevant Excerpts Re: New Substantive Requirements
Provided below are excerpts typical of the comments submitted to the Task Force on this
issue. Because there were extensive comments submitted by several persons, all are not
listed here but these are representative of the comments made.
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Written Statements to the Task Force
From the Air Permitting Forum Comments:
A. Title V Was Intended to Compile Substantive Requirements Created Under
Other Substantive Titles of the Act, Not to Create or Authorize EPA and States
to create New Substantive Limits on Plant Operations.
Much of the debate on the 1990 Amendments focused on substantive provisions of the
Act, like the Acid Rain program in Title IV and the new hazardous air pollutant program
in Title III of the Amendments. With respect to the Title V program, however, there are
several indications in the legislative history of the 1990 Amendments of what Title V was
intended to accomplish:
> First and foremost, to gather and recite in one place the obligations imposed by
the Act on a source, contrasted with the pre-1990 system under which some re-
quirements were in the SIP, others in construction permits, others in State operat-
ing permits, and others in regulations like NESHAPs and NSPS.1
> To promote uniformity of enforcement across the country by standardizing the in-
formation base and applying similar requirements to similar sources.11
> To consolidate duplicative and redundant requirements, thereby streamlining
permitting.111
During the House debate on H.R. 3030's pre-conference version the program, the operat-
ing permit program was considered "potentially H.R. 3030's most important procedural
reform."1V The most extensive comments on the purpose of the Title V program were
provided by Representative Bilirakis. He clarifies the importance of streamlining re-
quirements while at the same time ensuring that Title V creates no new substantive re-
quirements on sources:
The creation of the new permit program in Title V provides an opportunity
and an obligation for EPA to harmonize the substantive provisions of the
other titles in this complex legislation. . . . EPA must make every effort to
harmonize and prevent unproductive duplication among those titles.
The permit provisions of Title V provide a focus for this harmonization,
although Title V does not change, and gives EPA no authority to mod-
ify, the substantive provisions of these other titles.
Title V creates no new substantive emission control requirements. Noth-
ing in the permitting title should be read to increase the stringency of
any control requirement nor to delay or accelerate the effectiveness of
such requirements, except as expressly provided in titles I, III, and IV.
The administration proposed this comprehensive permit title—there was
no such title in the original House and Senate bills, H.R. 3030 and the
predecessors to S. 1630—to create a permit program that will serve the
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following three purposes: First, to provide a more comprehensive inven-
tory of the emission sources of pollutants controlled under this Act; sec-
ond, to facilitate enforcement by providing a single reference for all of a
major source's operating limits and requirements under the Clean Air Act;
and third, to institute a system of permit fees that would support the States
in carrying out the issuance and renewal of permits. To the degree these
purposes can be realized without unnecessary delay and paperwork,
EPA and the States are encouraged to make full use of the mechanisms
provided in this and other titles of this act—such as those related to
modifications and the use of general permits. These provisions should be
used to the maximum degree possible, consistent with emission control
requirements, particularly to ease the burden on small businesses.
136 Cong. Rec. E3673 (Extension of Remarks) (Nov. 2, 1990) (emphasis added).
As one of the Conferees for the House, Representative Bilirakis provided important
insights for EPA as to how the program should be administered to facilitate compliance.
He also clarified that Title V does not authorize EPA or States to create or change
through the operating permit the substantive requirements of the Act, including anything
that would increase the stringency of the substantive limits in other provisions of the
Act.v
When EPA adopted its regulations to implement Title V, it also recognized several of
these goals of the program, through adoption of implementation principles. EPA stated
that it viewed the Title V program as a tool to aid effective implementation of the Act and
to enhance the Agency's ability to enforce the Act and sought, among other things, to
facilitate use of market-based incentives, allow flexibility in State programs and source
permits, minimize redundancy in SIPs and permit programs, and promote simple and
streamlined regulation. 56 Fed. Reg. 21712, 21715 (1991). In the final Part 70 rules, EPA
further explained that enhancing the productive capacity of the nation is an important
concept that is part of the goal of aiding effective implementation of the Act.vl
In the preamble to the proposed Part 70 rules, EPA explained that it was "proposing that
only those provisions of a permit identified as being required under the Act or necessary
for its implementation will be Federally enforceable [and that to] promote this result
further, EPA ... [proposed] to require an explicit statement of the regulatory basis for all
Title V permit conditions." 56 Fed. Reg. 21729. EPA went on to indicate its belief that
Congress did not intend "Title V to be a forum for the State to establish any additional
requirements that would become Federally enforceable [as] ... [t]he primary purpose of
the Title V permitting program is to assure that subject sources comply with all
requirements of the Act." Id. Reflecting this philosophy, both the proposed and final Part
70 rule included the statement that "Title V does not impose substantive new
requirements.""1
Thus, the Title V program is an administrative tool to compile and recite the substantive
requirements that apply to an industrial facility in a single document. This concept
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represents an improvement over the prior system under which requirements were found in a
variety of locations. Calling the program "administrative" does not mean that it is
unimportant. It simply means that it is not substantive. It does not create new emission
limits and any requirements imposed through it, as explained by Rep. Bilirakis, cannot act to
create such limits.
III. Creation of New Substantive Requirements
A. Converting Monitoring Requirements into Operational Limits.
As documented in Section I of these comments, Congress did not authorize EPA or the
States to impose limits that would alter underlying emission control requirements or to
create new substantive limits on operations in the Title V permit. Title V was intended
and is limited to the recordation of applicable requirements that find their origin in the
substantive titles of the Clean Air Act, most notably Title I.
A problematic practice in a few States is the transformation of monitoring parameters
into "never-to-be-exceeded limits" in the Title V permit. For example, a source may be
required to monitor the pH on a scrubber or the temperature on a thermal oxidizer in an
underlying applicable requirement like an NSPS or a minor NSR permit. In Ohio and
North Carolina at least, these monitoring requirements are being changed into limits on
the source's operation. The typical approach is to take whatever values are monitored
during a performance test and make those permit limits. Thus, if a plant is outside the pH
range that occurred during a scrubber performance test, the source is in violation of its
permit even if it did not violate the emissions limit that is applicable to the unit. Ohio
EPA's premise is that the conditions during a performance test are replicated in normal
operation and that compliance with those conditions will necessarily mean compliance
during other periods of operation. This approach ignores other factors that may influence
compliance such as throughput, weather, and the compliance margin during the perform-
ance test. It also ignores EPA's own determinations during the debates over the en-
hanced monitoring rule that it is not possible to correlate parameters during performance
tests directly to emissions, but that such parameters should be used as indicators of the
performance of the control device that trigger investigation and corrective action provi-
sions, as needed.
The Ohio EPA refers to these limits as "operational restrictions" and imposes them on
every emission unit with a control device. Several permitted facilities have appealed
their Title V permits to the State's Environmental Review Appeals Commission (ERAC)
on the ground that such operational restrictions are not authorized. Of the dozens of
appeals pending two of those cases have been decided in favor of the permittee, most
notably a challenge by General Electric Company to limits on the voltage and current of
an electrostatic precipitator. This decision was issued on March 1, 2005. General Elec-
tric Lighting v. Jones, ERAC Case No. 185017 (March 1, 2005)vm
The ERAC found that Ohio EPA was not authorized to impose operational restrictions on
a plant unless they are "actually ... designed to assure compliance with the underlying
applicable requirement (in this case mass emissions limitations)" and that "the inclusion
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of any operational restriction which can[not] be demonstrated to directly relate to the
enforceability of an existing applicable requirement and [not to] alter that underlying
requirement" is not lawful. General Electric Lighting at 17 (emphasis in original). The
Commission also concluded that "the basis for an operational restriction must be more
than the fact that a permittee operated a piece of equipment at certain levels during test-
ing, especially when the data demonstrate that no direct correlation exists between the
required parameters, in this instance kilovolts, milliamps and emissions, and assuring
compliance." Id. The Commission made a factual finding that the operational restric-
tions imposed on the GE plant actually forced the facility to increase its emissions to stay
in compliance. Facility personnel testified that when one portion of the ESP went out of
the required operational ranges, it shut that portion down for a period of time. The facil-
ity could comply with the emissions limit and operational ranges using just two sections
of the ESP. This meant that the terms included by Ohio EPA forced emissions to be
increased deliberately (although still compliant with the emission limit) to avoid a viola-
tion of the limits on the voltage and current. This conclusively showed that it makes no
sense to presume that parameters occurring during a stack test are necessarily indicative
of compliant conditions with emission limits and may in fact be environmentally coun-
terproductive.
More generally, it is important to understand that even if a parameter could be correlated
to compliance (which it cannot in many cases), it is impossible to determine the full range
of parametric values indicating compliance unless the source violates its emission limit.
To perform this type of analysis during a compliance test, a source would need to operate
for some period of time above and below the compliance level in the applicable rule to
evaluate and set the operating conditions representing compliance. Under EPA's Febru-
ary 2003 Interim Stack Testing Guidance, a source could be subject to enforcement for
operating in this manner. If the permit has already been issued, the source would also
need to report a Title V deviation. This puts the facility in the position of either violating
emission limits or subjecting itself to a narrow operating parameter range that is more
stringent than the applicable limit.
The practice of creating new applicable requirements, as Ohio EPA and some other States
have done, requires a strong statement from the Task Force that such actions are inappro-
priate and poor policy for several reasons:
> They are inconsistent with congressional intent that Title V not create new
substantive requirements.
> They restrict the operation of sources to arbitrarily set conditions that do not
relate directly with compliance.
> They create new violations when no emission limits have been exceeded,
leading to enforcement risk for facilities that are compliant with emission lim-
its.
As shown in the General Electric case, they can actually lead to increased emissions.
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Oral Statements to the Task Force
Presentation of Debra Rowe (DaimlerChrysler Corporation on behalf of the Alliance
of Automobile Manufacturers)
MS. ROWE: This is an example of the — one experience with new substantive require-
ments being applied in the Title V. Considering hourly and annual emission limit on
emissions from the electrostatic precipitator. The source tests the electrostatic precipita-
tor; it passes. During the test the source records, as requested by the State, the voltage
and current readings that occurred. The facility then finds that the ranges of voltage and
current during the stack test had become enforceable limits in the Title V permit; that it
must not only monitor but must comply with. This creates a restriction on the plant's
operation of its electrostatic precipitator that isn't even related to compliance. Stack tests
are done when the unit is operating under specified conditions. Those conditions may or
may not exist in regular operation. For example, the load might be lowered because a
plant is not as busy. In addition, the weather can have an effect. But by imposing par-
ticular voltage or current requirements, the unit is now restricted. Additionally, the mar-
gin of compliance during the stack test is not even considered. What if the source tested
at 50 percent of its operating level, yet we encountered an automatic requirement to make
whatever was happening during the stack test an enforceable limit? This creates a phan-
tom violation, if you will, you know, for basically a sound operation operating within its
margin of compliance.
We think the Task Force should endorse the approach taken by some States; it's based on
the CAM rule. If there is a parameter that is indicative of good operation of a unit or
control, then going outside that range would trigger an investigation, if needed; and, if
needed, corrective action. Unless the range be definitively correlated to the emissions
level, which in most cases is simply not possible, it should not be a permit violation. This
makes much more sense because it focuses on a properly operated control advice rather
than trying to replicate a condition that occurred on a single day in a year that may not
exist on another day that the source is operating.
MR. VAN DER VAART: Thanks very much. I had a quick question on the ESP exam-
ple; and I mean it's just a good example. You're talking about being given monitoring
requirements that were really commensurate with a specific stack test. And then all of a
sudden those became sort of requirements across the load spectrum. And your point is,
"Gee, that's all of a sudden the case." My question is how did you certify compliance
during those periods that you're so confident that these — the same parameters are not
relevant?
MS. ROWE: Well, until you have another stack test — I mean, that's the one sample in
time, if you will, to relate the loads and probably demonstrate — and this is not an exam-
ple out of my company; it's from one of the other companies — but it's an example that
demonstrates the — you know, there's a margin of compliance as well in there.
MR. VAN DER VAART: No, I understand that.
MS. ROWE: Right. So to artificially tie those parameters-
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MR. VAN DER VAART: But when you certify compliance, you're certifying based on
something.
MS. ROWE: Right. Based on the confidence in the original stack test until it's redone.
MR. VAN DER VAART: Okay. But then that stack test was only specific to a certain
set of operating conditions. So you're using that same test the way to your benefit where
you would prohibit or you would omit the fact that the agency is using it against you. Is
that -
MS. ROWE: Well, if the parameter's set at 50 percent of what — you know — you've got,
say, a 50-percent compliance margin and the parameter artificially sets a new limit that's
half of what the original underlying permit limits.
MR. VAN DER VAART: That's another good question. I'm essentially saying just the
specificity of the test works both ways. It is only relevant for both compliance purposes
as well as for that, right?
MS. ROWE: Right.
MR. VAN DER VAART: Okay.
MS. ROWE: If there's an absolute correlation, it might make sense, Don, if it shows an
absolute correlation and it's at a compliance level. Otherwise, our suggestion is that it
triggers an investigation, if you will, and perhaps corrective action.
MR. VAN DER VAART: Sure.
MS. ROWE: But it shouldn't be an automatic violation. It may not be a violation of-
MR. VAN DER VAART: But you're willing to use it to certify compliance. You're not
putting any kind of trigger events -
MS. ROWE: We're relying on our original stack test, yeah.
MR. VAN DER VAART: Okay.
Presentation of David Farabee (American Petroleum Institute)
MR. VAN DER VAART: What I'm saying is, once I — once you have got a permit that
you are actually following — and I recognize there's lots of details — but let's say we got
to the point where you understand what monitoring is required and you're doing it.
Would you be willing to base your compliance status, be it yea or nay, on those monitor-
ing requirements that you agreed to?
MR. FARABEE: That's not a question that we can answer across the board. The answer
to that is going to vary by facility. It's going to vary by permitting authority and will —
potentially be very different, depending on the exact details of what's in there. What I
will say, generally, is that we are not of the opinion that the Title V process should be
used as a vehicle for imposing new monitoring requirements — new applicable require-
ments. It's the repository for incorporating what's already out there.
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Presentation of Scott Evans (Clean Air Engineering)
MS. BROOME: Hi. Just a quick question, following up on some of the stuff you were
saying about the 02 analyzer and that they somehow converted that into a measurement
of the NOx emissions. As I understood what you were saying, for this permit — and I
don't want you to name the company or anything, but it sounded like they were saying,
"Okay, if you have a number on your 02 analyzer that's below or above X" — I'm not
sure what the relative direction would be.
MR. EVANS: It's 3 percent in this case.
MS. BROOME: Okay. That you would have a violation of your permit? They were
saying that?
MR. EVANS: Yeah, absolutely. I guess that's indicative of a larger problem of taking
parameter monitoring and treating it as, in effect, surrogate direct monitoring.
MS. BROOME: So in your response to Mr. van der Vaart's question, you were not
intending to say that it was appropriate to define compliance with a tool like an 02
monitor?
MR. EVANS: Oh, no. No, no, no.
MS. BROOME: You were not trying to say that? That wasn't what you meant by denied
[sic] compliance?
MR. EVANS: No.
MS. BROOME: Because I think that that was where his question was leading. His card's
up. I'll let him respond.
MS. BROOME: So you would not suggest that the parameters should be enforceable.
MR. EVANS: I would not suggest — not -
MS. BROOME: Limits. That you violate your permit if you exceed a parameter. You're
not suggesting that, right?
MR. EVANS: Let me qualify it a little bit. If you had very strong correlation data
correlating that parameter with your direct emissions —
MS. BROOME: But only that.
MR. EVANS: (Continuing) — then I would say that's fair. In the absence of any kind of
correlation like that, then it's not reasonable to say that this parameter means that you are
out of compliance with the underlying standard. It raises questions is all it does. It says,
well, we need to look at this. Something is going on here where this parameter is being -
MS. BROOME: But you wouldn't say that the parameter was enforceable. Then the
emission limit is what you just said.
MR. EVANS: I believe the — yeah.
MS. BROOME: Okay.
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MR. EVANS: The emission limits are what —
MS. BROOME: Okay.
MR. EVANS: Are you exceeding that emission limit -
MS. BROOME: I just wanted to make sure -
MR. EVANS: Yes, that's the bottom line.
MS. BROOME: (Continuing) — how you were treating this. Thanks.
MS. HOLMES: Exactly. If you had a sense, you could use whatever temperature
accommodation with respect to time, as long as you know what you — you would have to
stay in a certain temperature parameter or time retention parameter. But I understand for
expense and convenience sometimes what you want to do is set up the parameters that
you monitor instead. So let's say we know that as long as you stay between 800 and 900
degrees — well, that's too low — 1,500 and 1,600 degree and three-second retention time,
that there is no way you're going to be busting your emission limit. My problem is when
you go below that by, say, 50 degrees, I have no idea what your emissions are. I had the
burden of proving the case, but you have all the information. So in my mind that's setting
up some kind of presumption that when you're outside the parameter, you have to rebut
and show that "well, I was using four seconds for that day," or, "I was at 50 percent
capacity," or something. It helps out because then all I know is you're outside of the
parameter that we know is compliance, but I can't prove noncompliance because I don't
have the information because the only thing we tested was within that parameter range.
MR. EVANS: Certainly one of the things when we're developing parameter ranges with
our clients, I really encourage them to push their process as close to noncompliance as
possible. One of the problems we have with doing that is — and this has come up on
more than one occasion — they would like to push their process all the way to noncompli-
ance when they're doing a parameter to really see where that line is; you know, "At what
point do we cross over?" But they're afraid if they do, they'll have to report that, and then
they'll get fined. So they're very leery about pushing their process to that point. Because
they would like to know, too. I mean, in many cases they would like to know, "At what
point am I, in fact, out of compliance?" But they won't quite go to that limit in a lot of
cases because of fear of having to report a noncompliance. In some cases, like an oxi-
dizer, a thermal catalytic oxidizer, the engineering calculations for that are reasonably
simple. If you know what's going in and you know what it takes to destroy those particu-
lar compounds, I think you could probably come up with a reasonable idea of whether or
not you're in compliance below those limits. It gets fuzzier with more complex processes
and complex parameters; the 02 and NOx, NOx seems like a simple thing, but there are
so many factors that go into the relationship between oxygen and NOx formation that it
turns out to be an extremely site-specific issue. So if you are a little bit under on your
NOx, and you don't have that data, you don't have a clue as to whether you're in or out. I
don't think, without that data, you'd be able to make a definitive determination in some
cases as to whether you're in or out.
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MS. FREEMAN: I'm glad Don asked that question, because listening to Carol's question,
which sounded to me getting very close to CAM, if that's a control device parameter,
wouldn't CAM require — I mean, I know this issue — probably remember we struggled
with in CAM, what you do if you go outside a parameter and you don't know whether
you're in compliance or out of compliance with emission limit. All you know is your
control device is not within parameter.
MR. EVANS: Right.
Views of Task Force Member van der Vaart: As shown in the questioning, Mr. van der
Vaart who represented the State of North Carolina on the Task Force, does not agree with
many of the comments submitted to the Task Force regarding this issue. He states that he
does not believe any permitting authority especially wants to add new requirements to a
permit. However, the problem is how is a permit written that can be used to determine
the compliance status of a facility? In his view, this is best accomplished by adding
monitoring sufficient to assure compliance.
He states that as for the footnote regarding the legislative history relative to the NPDES
and Title V programs cited in the Air Permitting Forum comments are largely taken out
of context, and that they actually reveal, when considered in their context, the opposite
point. He views the reference on page 353 as saying that the workloads will actually be
similar to that under the Clean Water Act CWA (the number of sources under CAA
would be smaller, but the number of emission points would be larger than the CWA) and
that would indicate that the two programs are again comparable. He also cites to page
347 indicating that Congress is again saying that the essence they were seeking to extract
from the NPDES program and include in the Title V permit program was the enforcement
component and that they go on to recognize the need for a compliance certification
similar to NPDES. He further notes that Congress laments that under the CAA (pre-Title
V), "there is no ready way to identify the extent of a source's compliance and
noncompliance."
Finally, he argues that NPDES doesn't actually add substantive requirements. Both
programs provide a framework for the enforcement of other requirements under the
CWA. If you could find something, anything, to the effect that NPDES does add
substantive requirements I would like to see it. Thus, he does not believe that the
Legislative History of Title V is equivocal about the similarities between the NPDES and
Title V programs relying in part on the second sentence of the Summary of the Senate
report: "Title V of the bill imposes a Federal requirement that major sources of air
pollution, and certain other sources of air pollution, obtain operating permits. Modeled
after the permitting, provisions of the Clean Water Act, this requirement will
substantially strengthen enforcement of the Clean Air Act."
' See, e.g., Senate Debates on S. 1630, Jan. 24, 1990, A Legislative History of the Clean Air Act Amend-
ments of 1990, Vol. IV (statement of Senator Chafee):
The permits will serve the very useful function of gathering and reciting in one place—the permit
document itself—all of the duties imposed by the Clean Air Act upon the source that holds the
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permit. This would clearly be an improvement over the present system, where both the source and
EPA must search through numerous provisions of State implementation plans and regulations to
assemble a complete list of requirements that apply to any particular plant." (p. 4858)
" See, e.g., Senate Debate on S. 1630, Mar. 20, 1990, A Legislative History of the Clean Air Act Amend-
ments of 1990, Vol. IV [136 Cong. Rec. S2715 (Mar. 20, 1990)] (Statement of Senator Baucus).(p. 5811).
See Hearing Before the Subcommittee on Oversight and Investigations of the Committee on Commerce,
U.S. House of Representatives, 104th Congress, 1st Sess., on Title V Permits, May 18, 1995
In 1990, the Congress envisioned Title V as a modest tool for bringing some clarity to the world of
stationary source regulations under the Federal and State clean air programs. While the goal of
consolidated source requirements and eliminating duplicate and overlapping provisions is a good
one, it may not be worth the billions of dollars that EPA seems to want the program to cost.
Statement by Chairman Dingell at 31
Although Chairman Dingell's statements were made after passage of the 1990 Amendments in reference to
the implementation of the program, his views as to what was intended at the time of enactment are relevant
given his central role in the Conference Committee.
See also, Statement of Representative Bilirakis, 136 Cong. Rec. E3675 (Extension of Remarks) (Nov. 2,
1990) ("EPA must avoid duplication between the SIP and permit processes.")
VI Clean Air Facts, May 3, 1990, reprinted in A Legislative History of the Clean Air Act Amendments of
1990, Vol. II (House Debate on H.R. 3030 May 17, 1990).
v Some parties have provided statements to the Task Force indicating that Congress intended the Title V
program to be implemented just like the NPDES program under the Clean Water Act. While there are
several references in the legislative history to the NPDES program, nothing indicates that Title V was
intended to create substantive requirements like the NPDES program. Indeed, the differences between
water and air pollution sources were specifically noted. See S. Rep. No. 101-228: Clean Air Act Amend-
ments of 1989, Report of the Committee on Environment and Public Works United States Senate at 353 (S.
1630), Dec 20, 1989. Moreover, EPA specifically considered the relationship between Title V and the
NPDES program in its Part 70 rulemaking. The Agency concluded that there are "significant dissimilari-
ties" between the two programs and concluded that "NPDES precedent should not be presumed binding for
purposes of decisions made in the implementation process for the Title V program." 57 Fed. Reg. 32250,
32260 (1992).
v,57 Fed. Reg. 32260.
v" 40 CFR § 70.1(b) and proposed 40 CFR § 70.1(c). See also Response to Comments on the 40 CFR Part
70 Rulemaking, EPA Docket No. A-90-33, V-C-l (June 1992) at 6-25 ("Title V is designed not to rewrite
the Act's requirements but to enforce them.")
VI" See also D.P. & L. v. Jones, ERAC Case No. 574950, (August 21, 2003).
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4.6 Topic: Definitiveness of Permit
Issue/Observation Description
This paper addresses the relationship between the permit, the permit shield, and the
source's compliance status as defined through the compliance certification. In particular,
the compliance certification requires the responsible official to identify "methods or other
means used by the owner or operator for determining the compliance status" with each
term and condition of the permit (40 CFR 70.6(c)(5)(iii)(B)).3 The rule specifies that the
"methods or other means" shall include "as a minimum" those specified in the permit.
This implies that information other than that required by the permit can be used to deter-
mine the compliance status of the source. At the same time, the permit shield under 40
CFR Part 70.6(f)(l)(i), while optional, provides an enforcement shield for any applicable
requirement included in the permit only if the permittee complies with the terms and
conditions for that requirement in the permit. This raises the question of whether the
permit should be definitive. While there was discussion in response to testimony on the
certainty that Title V might offer, discussions by the Task Force ultimately focused on
the particular case of a permit that offers the permit shield.
Legal Requirements
Relevant Regulatory Provisions: Several portions of the Part 70 rules are relevant.
Section 70.1 provides that "Title V does not impose substantive new requirements" but
that "it does require ... that certain procedural measures be adopted especially with re-
spect to compliance." 40 CFR § 70.1(b).
Section 70.6 governs permit content and provides in relevant part:
(a) Standard permit requirements. Each permit issued under this part shall include
the following elements:
(1) Emission limitations and standards, including those operational requirements
and limitations that assure compliance with all applicable requirements at the
time of permit issuance.
(i) The permit shall specify and reference the origin of and authority for each
term or condition, and identify any difference in form as compared to the ap-
plicable requirement upon which the term or condition is based.
(3) Monitoring and related recordkeeping and reporting requirements, (i) Each
permit shall contain the following requirements with respect to monitoring:
(A) All monitoring and analysis procedures or test methods required under
applicable monitoring and testing requirements, including part 64 of
this chapter and any other procedures and methods that may be prom-
ulgated pursuant to sections 114(a)(3) or 504(b) of the Act.
3 Even the meaning of the "compliance status" has been the subject of discussion in part due to the evolving
regulatory terms for compliance certifications under Title V.
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(B) Where the applicable requirement does not require periodic testing or
instrumental or non-instrumental monitoring (which may consist of re-
cordkeeping designed to serve as monitoring), periodic monitoring
sufficient to yield reliable data from the relevant time period that are
representative of the source's compliance with the permit, as reported
pursuant to paragraph (a)(3)(iii) of this section. Such monitoring re-
quirements shall assure use of terms, test methods, units, averaging pe-
riods, and other statistical conventions consistent with the applicable
requirement. Recordkeeping provisions may be sufficient to meet the
requirements of this paragraph (a)(3)(i)(B) of this section; and
(C) As necessary, requirements concerning the use, maintenance, and,
where appropriate, installation of monitoring equipment or methods.
(c) Compliance requirements. All part 70 permits shall contain the following ele-
ments with respect to compliance:
(1) Consistent with paragraph (a)(3) of this section, compliance certification, test-
ing, monitoring, reporting, and recordkeeping requirements sufficient to assure
compliance with the terms and conditions of the permit. . . .
(5) Requirements for compliance certification with terms and conditions contained
in the permit, including emission limitations, standards, or work practices. Per-
mits shall include each of the following:
(i) The frequency (not less than annually ...) of submissions of compliance certi-
fications;
(ii) In accordance with §70.6(a)(3) of this part, a means for monitoring the com-
pliance of the source with its emissions limitations, standards, and work prac-
tices;
(iii) A requirement that the compliance certification include all of the following
(provided that the identification of applicable information may cross-reference
the permit or previous reports, as applicable):
(A) The identification of each term or condition of the permit that is the basis
of the certification;
(B) The identification of the method(s) or other means used by the owner or
operator for determining the compliance status with each term and condi-
tion during the certification period. Such methods and other means shall
include, at a minimum, the methods and means required under paragraph
(a)(3) of this section;
(C) The status of compliance with the terms and conditions of the permit for
the period covered by the certification, including whether compliance dur-
ing the period was continuous or intermittent. The certification shall be
based on the method or means designated in paragraph (c)(5)(iii)(B) of
this section. The certification shall identify each deviation and take it into
account in the compliance certification. The certification shall also iden-
tify as possible exceptions to compliance any periods during which com-
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pliance is required and in which an excursion or exceedance as defined
under part 64 of this chapter occurred; and
(D) Such other facts as the permitting authority may require to determine the
compliance status of the source.
(iv) A requirement that all compliance certifications be submitted to the Adminis-
trator as well as to the permitting authority.
(6) Such other provisions as the permitting authority may require.
(f) Permit shield. (1) Except as provided in this part, the permitting authority may ex-
pressly include in a part 70 permit a provision stating that compliance with the con-
ditions of the permit shall be deemed compliance with any applicable requirements
as of the date of permit issuance, provided that:
(i) Such applicable requirements are included and are specifically identified in the
permit; or
(ii) The permitting authority, in acting on the permit application or revision, de-
termines in writing that other requirements specifically identified are not appli-
cable to the source, and the permit includes the determination or a concise
summary thereof.
(2) A part 70 permit that does not expressly State that a permit shield exists shall be
presumed not to provide such a shield.
Comments Received
In response to questions from Task Force members some testimony addressed the issue
of certifying to "compliance status." There was a divergence of views as to whether Title
V (which requires certification of "continuous" or "intermittent" compliance) allows
sources to certify to "intermittent" compliance for periods during which compliance
status is unknown, or whether a source must consider any period of unknown automati-
cally to be noncompliance. Some excerpts from the testimony on this topic are provided
in the attachment.
Other Information
Some additional background comes from the final report of the 1990 amendments (Sen.
Rep. No. 101-549, at 347 (1990)):
The first benefit of the Title V permit program is that, like the CWA pro-
gram, it will clarify and make more readily enforceable a source's pollu-
tion control requirements. Currently, in many cases, the source's pollution
control obligations — ranging from emissions controls and monitoring re-
quirements to recordkeeping and reporting requirements — are scattered
throughout numerous, often hard-to-find provisions of the SIP or other
Federal regulations... As a result, there is no ready way to identify the ex-
tent of a source's compliance and noncompliance.
[Emphasis added.]
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Task Force Discussion
The Task Force's initial discussions of the issue centered around the impact of EPA's
"Credible Evidence" rule (CE) (62 Fed. Reg. 8314), periodic monitoring under Part 70,
and the Compliance Assurance Monitoring (CAM) rule (62 Fed. Reg. 54900) on the
ability of sources, permitting agencies, and the public to rely on the monitoring in the
permit as providing the definitive definition of a source's compliance status. Although
Task Force members agreed as a goal that the permit should define compliance, members
also recognized that it was unlikely that the Task Force would reach agreement on any
issues involving the CE, Part 70 monitoring, and CAM rules given the differing views on
those rules. (Some of those views are set out in the paper on Monitoring in Section 4.3 of
this report).
The Task Force then moved its discussion to the question of whether the permit should be
definitive in cases where a shield is included. One Task Force member argued that, to be
definitive while not establishing a new substantive requirement, the monitoring included
in the permit must be limited to the compliance method specified in the underlying re-
quirement (with specification of frequency as necessary under the "periodic monitoring"
rule) and CAM. As an extreme, one State agency Task Force member stated that the
permitting authority could require continuous emissions monitoring systems (CEMS)
wherever technically feasible or, in the alternative could require frequent reference test
methods, to ensure that the results could be relied on in determining the source's compli-
ance status, and thereby give credence to the permit shield.4 However, one member
noted that the expense of CEMS or frequent stack tests may not be justified as long as
alternative monitoring is available. For example, in some cases, parameter monitoring
can be correlated to the actual emission rate and can be very accurate. However, industry
representatives have argued that if this correlation over-predicts their emission rate,
compliance with a given parameter value may constitute a new substantive requirement
(see Task Force Paper on New Substantive Requirements in Section 4.5 of this report).
Industry Task Force members also stated their disagreement with the premise that a State
could require CEMS or broadly increase stack test frequency.
According to one Task Force member, the CE/CAM/part 70 interface presents the per-
mitting authority with a dilemma in cases where the permit shield is extended to the
facility. He posed the question of whether CEMS should be included for all applicable
requirements,5 thereby establishing a firm foundation for the permit shield and blunting
the facility's argument that a new substantive requirement is being added, or whether
parametric methods should be employed at the possible expense of being able to enforce
on the basis of this lesser form of monitoring, thereby defeating the purpose of the permit
and destroying the shield.
4 Some on the Task Force stated that the addition of CEMS was clearly anticipated by Congress when it
noted in Section 504(b) that CEMS were not always required for monitoring under Title V. There was not
agreement regarding the meaning of Congress reference to CEMS in the statute and others pointed out that
Congress specifically required rulemaking in that provision.
5 The addition of such monitoring would need to be consistent with the EPA's umbrella monitoring policy
(62 FR 3202) (See the Task Force Paper on Monitoring in Section 4.3 of this report.)
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One State agency Task Force member said that industry representatives outside the Task
Force have argued that CEMS are cost-prohibitive, even if they were authorized. How-
ever, they also maintain that while the lesser level of (parametric) monitoring (if author-
ized) can be used to establish compliance, they should also be able to use information
gathered outside their permit to establish compliance in cases when the parametric moni-
toring indicates a violation. One Task Force member noted that while this view makes
sense for cases where a permit shield is not extended, since no specific predicate of com-
pliance with the terms and conditions of the permit exist in this case, it leads to a conflict
when the shield is sought. This Task Force member found it difficult to believe that
Congress intended permittees to shield themselves from enforcement for requirements
under the CAA based on compliance with the terms and conditions of the permit, and also
shielded them when they used other information, not vetted through the Title V process,
to establish compliance whenever permit-defined monitoring showed non-compliance.
While several members of the Task Force were interested in the concept of an absolute
permit shield that would prevent use of credible evidence, these members also recognized
that the likelihood of EPA moving to such an approach may be low. Given that, and their
view that the rules may limit the imposition of new monitoring or compliance methods,
they expressed concern regarding any recommendations that would implicitly agree to
the creation of monitoring and restrictions in the permit. They were concerned that even
if the source were willing to agree to the new compliance method in order to obtain a
shield, such recommendations could be taken without the premise that an absolute shield
exists. This would represent an enforcement risk many would be unwilling to take with-
out a clearer statement from the EPA on their current interpretation of the permit shield.
Following that discussion, the Task Force reviewed and voted on several recommenda-
tions.
Recommendations
Recommendation #1
The EPA should recognize that the Credible Evidence Rule (rule, preamble and guid-
ance) has raised questions about the relationship between the permit, the permit shield,
and the compliance certification. This has resulted in confusion among permitting agen-
cies, sources and the public.
In Favor (9)*: Sliwinski, van der Vaart, Broome, Wood, Hagle, Freeman, Paul,
Hodanbosi, Golden
Opposed (6)*: Raettig, Van Frank, Owen, Powell, Keever, Palzer
Abstentions (1)*: Morehouse
Clarifications: Broome, Golden, Wood, Paul, and Freeman clarify that because the Court
of Appeals never ruled on the substance of the credible evidence rule, there remain
questions about its overall legality and that the problem goes beyond confusion. They
further clarify that the recommendation should not be interpreted simply as a request
for additional guidance, which they do not believe would resolve the real issue.
*Note: Number in parentheses () is the total number of Task Force members voting for this position.
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Recommendation #2
The EPA should recognize that the phrase "ill a mininiiini" in 4<) (TR 7<) (->(c)(5)(iii)(li)
when referring lo the methods and means required under 7<) (>(a)(.>) information used to
determine the compliance status undermines the purpose of the permit shield to the extent
it suggests that additional information must lie considered in compliance certifications
/// l-'tmir (4): Sliuinski. \an der Vaart. I lodanhosi. (iolden
Opposed ((>): Raettig. Van Frank. Owen. Powell. kee\er. Palzer
Abstentions ((>): liroome. Freeman. I lade. Morehouse. Paul. W ood
C larifications:
Recommendation #3
EPA should pursue rulemaking to propose the following change in 70.6(c)(5)(iii)(B):
(B) The identification of the method(s) or other means used by the owner or
operator for determining the compliance status with each term and condition
during the certification period. Such methods and other means shall include,
at a minimum, the methods and means required under paragraph (a)(3) of this
section. In cases where the permit is shield under 70.6(f)(l)(i) is included in
the permit, the basis of the compliance certification shall be the results of
monitoring under 70.6(a)(3).
In favor (3): Sliwinski, van der Vaart, Hodanbosi
Opposed (11): Broome, Wood, Raeittig, Van Frank, Freeman, Owen, Powell, Keever,
Hagle, Paul, Palzer
Abstentions (2): Morehouse, Golden
Clarifications: Broome and Freeman oppose based on substantive concerns as well as
because they do not believe the Task Force should promote specific regulatory
language. Golden clarifies that he is in favor of achieving the general goal of
defmitiveness in the permit, but due to the complexity of the issue, he is unsure that
the proposed language addresses all of the issues and does not want to promote exact
regulatory language.
Related Topics: Monitoring, New Substantive Requirements
Attachment
Presentation of Scott Evans (Clean Air Engineering)
MS. BROOME: Hi. Just a quick question, following up on some of the stuff you were
saying about the 02 analyzer and that they somehow converted that into a measurement
of the NOx emissions. As I understood what you were saying, for this permit — and I
don't want you to name the company or anything, but it sounded like they were saying,
"Okay, if you have a number on your 02 analyzer that's below or above X" — I'm not
sure what the relative direction would be.
MR. EVANS: It's 3 percent in this case.
MS. BROOME: Okay. That you would have a violation of your permit? They were
saying that?
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MR. EVANS: Yeah, absolutely. I guess that's indicative of a larger problem of taking
parameter monitoring and treating it as, in effect, surrogate direct monitoring.
MS. BROOME: So in your response to Mr. van der Vaart's question, you were not
intending to say that it was appropriate to define compliance with a tool like an 02
monitor?
MR. EVANS: Oh, no. No, no, no.
MS. BROOME: You were not trying to say that? That wasn't what you meant by denied
compliance?
MR. EVANS: No.
MS. BROOME: Because I think that that was where his question was leading. His card's
up. I'll let him respond.
MR. EVANS: Do you want to respond before I —
MR. VAN DER VAART: Yeah. I mean, the question that I've got, I totally agree that if
you're not happy with an oxygen monitor being used to define your NOx emissions to the
point of determining compliance, I don't think anybody would argue that that's
inappropriate. I think the question that comes up —
MR. EVANS: The State did in this case.
MR. VAN DER VAART: But what they should come back and say, "Okay, look, we
don't like that, but what can we do?" So here is the question. The question is it's not
whether oxygen monitoring is the right answer. The question is, "Look, we both know
that we need to define compliance. How do you want to do it?"
MR. EVANS: And actually, we did come up with a solution there. I think it involves
talking and education on both sides. And one of the things I can't stress enough for folks
going through this is to talk to your permit writers and the State agency people a lot. But
it actually had to — we had to come to an understanding of what parameter monitoring
was all about. And parameter monitoring is not a substitute for a direct determination of
compliance. Parameter monitoring is intended to determine whether or not a process is
operating within its normal parameters, and that makes the assumption that you've
defined that while you're operating within those normal parameters, that you are in
compliance. And the parameter monitor is just to check to say, "Yeah, the process is
operating that same way, so we can be reasonably certain that we're still in compliance."
It's not intended to mean if you're 3.1 02, then you've violated your NOx, your NOx
requirements. That's the problem.
MS. BROOME: So you would not suggest that the parameters should be enforceable.
MR. EVANS: I would not suggest — not —
MS. BROOME: Limits. That you violate your permit if you exceed a parameter. You're
not suggesting that, right?
MR. EVANS: Let me qualify it a little bit. If you had very strong correlation data
correlating that parameter with your direct emissions —
MS. BROOME: But only that.
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MR. EVANS: (Continuing) — then I would say that's fair. In the absence of any kind of
correlation like that, then it's not reasonable to say that this parameter means that you are
out of compliance with the underlying standard. It raises questions is all it does. It says,
well, we need to look at this. Something is going on here where this parameter is being —
MS. BROOME: But you wouldn't say that the parameter was enforceable. Then the
emission limit is what you just said.
MR. EVANS: I believe the — yeah.
MS. BROOME: Okay.
MR. EVANS: The emission limits are what —
MS. BROOME: Okay.
MR. EVANS: Are you exceeding that emission limit —
MS. BROOME: I just wanted to make sure —
MR. EVANS: Yes, that's the bottom line.
MS. BROOME: (Continuing) — how you were treating this. Thanks.
MS. HOLMES: Exactly. If you had a sense, you could use whatever temperature
accommodation with respect to time, as long as you know what you — you would have to
stay in a certain temperature parameter or time retention parameter. But I understand for
expense and convenience sometimes what you want to do is set up the parameters that
you monitor instead. So let's say we know that as long as you stay between 800 and 900
degrees — well, that's too low — 1,500 and 1,600 degree and three-second retention time,
that there is no way you're going to be busting your emission limit. My problem is when
you go below that by, say, 50 degrees, I have no idea what your emissions are. I had the
burden of proving the case, but you have all the information. So in my mind that's setting
up some kind of presumption that when you're outside the parameter, you have to rebut
and show that "well, I was using four seconds for that day," or, "I was at 50 percent
capacity," or something. It helps out because then all I know is you're outside of the
parameter that we know is compliance, but I can't prove noncompliance because I don't
have the information because the only thing we tested was within that parameter range.
MR. EVANS: Certainly one of the things when we're developing parameter ranges with
our clients, I really encourage them to push their process as close to noncompliance as
possible. One of the problems we have with doing that is — and this has come up on more
than one occasion — they would like to push their process all the way to noncompliance
when they're doing a parameter to really see where that line is; you know, "At what point
do we cross over?" But they're afraid if they do, they'll have to report that, and then
they'll get fined. So they're very leery about pushing their process to that point. Because
they would like to know, too. I mean, in many cases they would like to know, "At what
point am I, in fact, out of compliance?" But they won't quite go to that limit in a lot of
cases because of fear of having to report a noncompliance. In some cases, like an oxi-
dizer, a thermal catalytic oxidizer, the engineering calculations for that are reasonably
simple. If you know what's going in and you know what it takes to destroy those particu-
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lar compounds, I think you could probably come up with a reasonable idea of whether or
not you're in compliance below those limits. It gets fuzzier with more complex processes
and complex parameters; the 02 and NOx, NOx seems like a simple thing, but there are
so many factors that go into the relationship between oxygen and NOx formation that it
turns out to be an extremely site-specific issue. So if you are a little bit under on your
NOx, and you don't have that data, you don't have a clue as to whether you're in or out. I
don't think, without that data, you'd be able to make a definitive determination in some
cases as to whether you're in or out.
MS. FREEMAN: I'm glad Don asked that question, because listening to Carol's question,
which sounded to me getting very close to CAM, if that's a control device parameter,
wouldn't CAM require — I mean, I know this issue — probably remember we struggled
with in CAM, what you do if you go outside a parameter and you don't know whether
you're in compliance or out of compliance with emission limit. All you know is your
control device is not within parameter.
MR. EVANS: Right.
Presentation of Debra Rowe (DaimlerChrysler Corporation on behalf of the Alliance
of Automobile Manufacturers)
MS. ROWE: This is an example of the — one experience with new substantive require-
ments being applied in the Title V. Considering hourly and annual emission limit on
emissions from the electrostatic precipitator. The source tests the electrostatic precipita-
tor; it passes. During the test the source records, as requested by the State, the voltage
and current readings that occurred. The facility then finds that the ranges of voltage and
current during the stack test had become enforceable limits in the Title V permit; that it
must not only monitor but must comply with. This creates a restriction on the plant's
operation of its electrostatic precipitator that isn't even related to compliance. Stack tests
are done when the unit is operating under specified conditions. Those conditions may or
may not exist in regular operation. For example, the load might be lowered because a
plant is not as busy. In addition, the weather can have an effect. But by imposing par-
ticular voltage or current requirements, the unit is now restricted. Additionally, the mar-
gin of compliance during the stack test is not even considered. What if the source tested
at 50 percent of its operating level, yet we encountered an automatic requirement to make
whatever was happening during the stack test an enforceable limit? This creates a phan-
tom violation, if you will, you know, for basically a sound operation operating within its
margin of compliance.
We think the Task Force should endorse the approach taken by some States; it's based on
the CAM rule. If there is a parameter that is indicative of good operation of a unit or
control, then going outside that range would trigger an investigation, if needed; and, if
needed, corrective action. Unless the range be definitively correlated to the emissions
level, which in most cases is simply not possible, it should not be a permit violation. This
makes much more sense because it focuses on a properly operated control advice rather
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than trying to replicate a condition that occurred on a single day in a year that may not
exist on another day that the source is operating.
MR. VAN DER VAART: Thanks very much. I had a quick question on the ESP exam-
ple; and I mean it's just a good example. You're talking about being given monitoring
requirements that were really commensurate with a specific stack test. And then all of a
sudden those became sort of requirements across the load spectrum. And your point is,
"Gee, that's all of a sudden the case." My question is how did you certify compliance
during those periods that you're so confident that these — the same parameters are not
relevant?
MS. ROWE: Well, until you have another stack test — I mean, that's the one sample in
time, if you will, to relate the loads and probably demonstrate — and this is not an exam-
ple out of my company; it's from one of the other companies — but it's an example that
demonstrates the — you know, there's a margin of compliance as well in there.
MR. VAN DER VAART: No, I understand that.
MS. ROWE: Right. So to artificially tie those parameters-
MR. VAN DER VAART: But when you certify compliance, you're certifying based on
something.
MS. ROWE: Right. Based on the confidence in the original stack test until it's redone.
MR. VAN DER VAART: Okay. But then that stack test was only specific to a certain
set of operating conditions. So you're using that same test the way to your benefit where
you would prohibit or you would omit the fact that the agency is using it against you. Is
that -
MS. ROWE: Well, if the parameter's set at 50 percent of what — you know — you've got,
say, a 50-percent compliance margin and the parameter artificially sets a new limit that's
half of what the original underlying permit limits.
MR. VAN DER VAART: That's another good question. I'm essentially saying just the
specificity of the test works both ways. It is only relevant for both compliance purposes
as well as for that, right?
MS. ROWE: Right.
MR. VAN DER VAART: Okay.
MS. ROWE: If there's an absolute correlation, it might make sense, Don, if it shows an
absolute correlation and it's at a compliance level. Otherwise, our suggestion is that it
triggers an investigation, if you will, and perhaps corrective action.
MR. VAN DER VAART: Sure.
MS. ROWE: But it shouldn't be an automatic violation. It may not be a violation of-
MR. VAN DER VAART: But you're willing to use it to certify compliance. You're not
putting any kind of trigger events -
MS. ROWE: We're relying on our original stack test, yeah.
MR. VAN DER VAART: Okay.
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Presentation of Kathy Andria (American Bottom Conservancy)
MR. VAN DER VAART: Well, I think industry does want — I think everybody wants
that. But in terms of being able to look at the permit, I know that sometimes it's a
daunting task. Would you like to be able to look at the compliance certification and see
whether or not they're — whether they're in compliance or whether there were periods of
noncompliance.
MS. ANDRIA: I would very much like to do that. We're already seeing a whole bunch
of things. I mean, we've got people who are saying they're in compliance and people at —
who at hearings are saying they're in compliance when it's very clear that they're not. So
I am very interested to see them sign their own names to something saying, "I am in
compliance. My company is in compliance, and I am responsible," because then we have
something to go after them for.
Presentation of Tammy Wyles (Georgia Pacific)
MS. WYLES: Related to that, too, there are some States — and this kind of gets over into
the area of the CAM rule — the Compliance Assurance Monitoring rule — which is really
a companion rule to Title V — but there are some States that are hard-wiring the paramet-
ric values that we use to demonstrate compliance under the CAM rule while that rule
allows us to be reset in subsequent tests as long as we can demonstrate compliance. This,
again, is just adding burden to both the manufacturing operation and to the agency that's
having to process multiple revisions. And it really just does not, I don't think, provide
any additional environmental benefit.
MR. VAN DER VAART: Well, what I'm saying is — what I'm saying is, if I tell you — I
mean, I realize there's a lot of language out there floating around, some of it old, made
new again for some reason. But what I'm saying is, let's say I can guarantee you a shield,
okay? So really, really everybody tells you that as long as you do what's in the permit
you will be deemed in compliance with the Clean Air Act. Would that — given that,
would you be then willing to base your compliance and noncompliance on the monitoring
results that the permit specifies?
MS. WYLES (Ga. Pacific): I think we would, but I think, you know, again, within our
own company we still advise our responsible officials to go beyond that.
MR. VAN DER VAART: This isn't a happy world. I'm taking you away. This is happy
land. I've taken you into this sort of quasi-amorphous world we live in. So all I'm saying
is if you did have that certainty -
MS. WYLES: Yes, yes.
MR. VAN DER VAART: — would you then be willing?
MS. WYLES: Yes, I think so.
MR. VAN DER VAART: Okay. Thanks.
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Presentation of Lyman Welch (Mid-Atlantic Environmental Law Center)
MR. VAN DER VAART: Generally speaking, you'd like to be able to look at the
monitoring requirements and determine whether they're in compliance or not, based on the
results. Is that what I'm hearing or not?
MR. WELCH: Yes, I would like it to work similar to the Clean Water Act Discharge Moni-
toring Report where a facility might report, here's our limit of seven and we were over that
at 50, but with a little asterisk saying at the bottom, here's an explanation, you know. Our
line froze up this day and that's why this one-time thing occurred. I would like to see the
same type of procedure work in the air situation.
Presentation of Bruce Nilles (Sierra Club)
MR. VAN DER VAART: One question I did have, and you really didn't touch on it, but
the compliance certification. I presume you believe you need to certify both compliance
and noncompliance. Do you think Title V obligates the permit to contain methods for
determining compliance so that they can make that certification?
MR. NILLES: Absolutely. As we read Title V, it says the whole purpose is to take the
underlying construction Title I obligations and wrap around the monitoring reporting and
recordkeeping obligations so that you can actually, at the end of the stay, in short, con-
tinue its compliance. And how else do we tell the citizens that we have any certainty that
that smokestack at the end of their driveway is meeting its clean air obligations, unless
we have that information.
Presentation of Robert Ukeiley (Georgia Center of Law in the Public Interest)
MR. VAN DER VAART: Sorry. To get back to this burden of proof issue, you know, at
some point, I mean, we have to recognize that the permit is of some value because if we
just go on with this burden of proof, then some could argue why do I need to monitor at
all. In your case, my understanding was that you didn't feel the permit was definitive
enough in terms of defining when startup ended and that what you really wanted was a
better definition of startup and then monitoring pursuant to that definition. Do you see —
do you agree with that or would you just -
MR. UKEILEY: I agree that that's what I think that the permit should have. It should
have a clear — exactly. It should have a clearer definition of when startup ends and
monitoring to determine the definition provided in the permit.
MR. VAN DER VAART: Do you — what do you think about the issue of just throwing
up our hands and saying, well, at the end of day we can still force the permittee to bear
the burden, would their opinion of that — would the facilities' opinion of that not be, well,
why do I even have this permit? In other words, can there be some value attached to the
permit that you would agree with, as long as it was definitive and well written and the
monitoring was pursuant to the definitive nature that we just discussed?
MR. UKEILEY: I'm not sure I'm totally understanding your question.
MR. VAN DER VAART: I guess what I'm saying is, is does the monitoring have value
or does ultimately do you believe that the monitoring is only a secondary importance
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because we can always dump the entire burden of proof back on the facility outside of
that monitoring, or would you rather have the monitoring be definitive so that everybody
can look to it and decide what the compliance status is?
MR. UKEILEY: I would rather have the monitoring be definitive.
MR. VAN PER VAART: Thanks.
Presentation of Steve Murawski (Gardner, Carton, & Douglas)
MR. VAN DER VAART: It's your belief that Title V, under the certification, requires
you to certify both periods of noncompliance and compliance?
MR. MURAWSKI (Garden, Cutter and Douglas): That's correct.
Presentation of Chuck Layman (CENSARA and CENRAP)
MR. VAN DER VAART: Thanks, Chuck. A couple of comments that resonated. First
of all, on the SIP amendment thing, you know, when you read the preamble of Part 7 —
it's on the background — certainly sounded to us that Title V was anticipated to actually
provide a sort of site-specific SIP amendment mechanism. And I don't think that's really
taken place. Personally, I think the EPA is loath to tie their hands to that kind of process.
But they like the give-me-what-you've-got-and-I'll-let-you-know type of SIP revision
mechanism. In addition, during the initial Title V, we found — just like you, I think — a
great wealth of compliance definition and compliance issues raised just simply going
through the rigors of having to prepare those initial Title V's. In that context, I've got two
short questions, which is, one, do you believe, when Congress asked the permittee to
certify his or her compliance status, that they wanted both compliance and instances of
noncompliance to be certified too?
MR. LAYMAN: Now, you're making me think back.
MR. VAN DER VAART: It's just your opinion.
MR. LAYMAN: I mean, I'd have to go back and really read it. But it was always my
understanding that you were certifying those areas that you were in compliance and you
were also certifying, at least by negative implication, that you were out of compliance
with those other areas.
MR. VAN DER VAART: To follow that up, do you think that the permit should form
the basis of these compliance certifications; or do you believe that information not con-
templated in the permit should be included as well?
MR. LAYMAN: My personal belief is that it's always worried me that the permit has
been viewed as the single enforceable document in these situations, because that's one
reason these permits have to get so complex and complicated. I would like to see some
recognition that you can go outside the permit. But at the same time I understand the
need for that permit. It's really a conundrum. It really is. I can argue with myself around
in circles on that.
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Presentation of John Metzger (3M)
MR. VAN DER VAART: I would echo what Dave said. It's great to have you come all
the way here and help us out. We like the 3M facility we have in North Carolina. But
the one question I've got, very simple; you do believe that the certification requires both
certification of noncompliance and compliance?
MR. METZGER: Absolutely.
MR. VAN DER VAART: Thanks very much.
MR. METZGER: Absolutely. And we think that we would like to see there be more
uniformity around this from permitting authority to permitting authority. In some cases
we see very great detail guidance or requirements on the part of the permitting authority
as to how
MS. BROOME: Thanks. Mr. Metzger, I just have a quick follow-up on the compliance
certification comment you made. If you have a situation where you're not sure what your
compliance status is — for example, an incinerator where there is indicator monitoring of
a temperature that was during a performance test, but you drop a few degrees — you were
not suggesting that you're required to certify noncompliance unless that temperature limit
is a requirement; correct?
MR. METZGER: That is correct. I mean, we think that in a lot of cases there's not good
definition around these terms of deviation, noncompliance, violation, and so forth. And
even in cases we've seen where attempts have been made to clarify that, that it's — has
often remained confusing. In our compliance certifications, we try to approach those
from the standpoint of maximum disclosure of information. So that in some cases we
will believe that something does not represent — I mean, you fill in whatever term you
like; violation, noncompliance, deviation, excursion, whatever. But in any case we want
to make sure that if any sort of departure whatsoever from the permit has occurred, that
as a minimum that that information is reported in the permit. And, of course, we'll take a
position in our submittal as far as what we believe is a significance and how we're
attending to that and so forth.
MS. BROOME: Or if you don't know, you may just say you don't know. And you're not
suggesting that you should be forced to characterize that as noncompliance.
MR. METZGER: Oh, absolutely not.
Presentation of John Walke (Natural Resources Defense Council)
MR. VAN DER VAART: On the other side, doesn't that hurt the parties, because now third
parties can't actually definitively know whether, as you said, a facility is in compliance,
because there's always an unknown quantity or unknown information, never accessible to
third parties, and, in fact, now they're barred from using the monitoring data which is
available to them to determine compliance.
MR. WALKE: The last point is not true.
MR. VAN DER VAART: It is if you assume that the monitoring condition in the permit is
not definitive.
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MR. WALKE: You can use it.
MR. VAN DER VAART: You can try to use it, but then the industry is going to use the
same argument that you want to use, which is, hey, I've got credible evidence saying I
wasn't.
MR. WALKE: That's fine. I'm happy to take that situation. It's not third parties from the
public who are objecting to the use of credible evidence, because it creates this uncertainty
and chaos.
MR. VAN DER VAART: But it should. I don't care if it is or not. What I'm saying is, by
opening that door, the other door opens, so now the whole defmitiveness, which we all
really have heard is important and would be a great asset, seems to be diffused because of
the fact that there may always be a hidden piece of data or series of monitoring data that
may contradict and be relevant to determine whether you're in compliance. To me, it just
seems like there's a problem on both sides.
MR. WALKE: I agree that the situation exists on both sides, but I don't think it's a problem.
I don't mean to be flip here, but that's life. There is no clarity of defmitiveness in any area of
the law when it comes to proof of violation.
MR. VAN DER VAART: But then you do get to the final question, which is, why are we
doing this permit program anyway, when, in fact, the final determination of what's
compliance or not, is very well hidden within the confines of the facility and inaccessible to
anyone, on a practical basis. So what's the purpose of the permitting program?
MR. WALKE: The three-part purpose that I laid out is still my view. The question of
credible evidence is one of ultimate proof of what's admissible before a court. That should-
n't be confused with how — whether or not the public benefits from requiring industry to
consider that additional information or whether better and more accurate monitoring is a
good thing. ... We've got sufficiency monitoring just having been eliminated; CAM being
feckless in the extreme; terms being written into the permits to ensure that the compliance
certifications are meaningless, so people don't actually have to say whether they are in
compliance or not. ...
Presentation of David Farabee (American Petroleum Institute)
MR. VAN DER VAART: What I'm saying is, once I — once you have got a permit that
you are actually following — and I recognize there's lots of details — but let's say we got
to the point where you understand what monitoring is required and you're doing it.
Would you be willing to base your compliance status, be it yea or nay, on those monitor-
ing requirements that you agreed to?
MR. FARABEE: That's not a question that we can answer across the board. The answer
to that is going to vary by facility. It's going to vary by permitting authority and will —
potentially be very different, depending on the exact details of what's in there. What I will
say, generally, is that we are not of the opinion that the Title V process should be used as
a vehicle for imposing new monitoring requirements — new applicable requirements. It's
the repository for incorporating what's already out there.
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4.7 Topic: Compliance Certification Forms
Issue/Observation Description
What this Paper Addresses: Compliance certifications are a core part of the Title V
program. The information received by the Task Force indicates that they have increased
company management awareness about compliance with air pollution control require-
ments and spurred more widespread implementation of compliance management systems.
An issue that has been raised and discussed at length by the Task Force, however, is the
appropriate format for compliance certifications. The debate is largely over how much
detail is necessary and/or beneficial in a compliance certification. This topic addresses
the appropriate format and content for a Title V compliance certification.
A typical "short form" compliance certification requires the source to: (1) provide an
overall certification statement of continuous compliance with permit requirements, (2)
specifically list deviations from permit requirements during the reporting period, and (3)
include or attach required details on those deviations. (See Exhibit A). A typical "long
form" requires the Title V facility to: (1) list or reference each permit condition, (2)
specify its compliance status for each permit condition, and (3) separately describe the
method used for determining the compliance status for each condition. The long forms
are often modeled on the form that EPA has put on its website for part 71 certifications.
(See Exhibit B). There are, in addition, a number of certification forms in use that fall
somewhere between a long and short form. Yet another option for a compliance certifi-
cation form, raised by a Task Force member, is to use the permit itself as the compliance
certification form with an added column for indicating compliance status. Specific in-
formation regarding noncompliance would be attached, as with the short form.
Legal Requirements: Title V requires each facility to submit an annual compliance
certification signed by a responsible official. 42 U.S.C. § 7661(c). Section 114 of the
Act specifies the requirements for such certifications. 42 U.S.C. §7414. The governing
regulations for compliance certifications are found in §70.6(c) of the Title V rules. These
regulations have undergone some changes since initial issuance in 1992 but currently list
the requirements for certifications as follows:
(iii) A requirement that the compliance certification include all of the following (provided
that the identification of applicable information may cross-reference the permit or previ-
ous reports, as applicable):
(A) The identification of each term or condition of the permit that is the basis of
the certification;
(B) The identification of the method(s) or other means used by the owner or op-
erator for determining the compliance status with each term and condition during
the certification period. Such methods and other means shall include, at a mini-
mum, the methods and means required under paragraph (a)(3) of this section;
(C) The status of compliance with the terms and conditions of the permit for the
period covered by the certification, including whether compliance during the pe-
riod was continuous or intermittent. The certification shall be based on the
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method or means designated in paragraph (c)(5)(iii)(B) of this section. The certi-
fication shall identify each deviation and take it into account in the compliance
certification. The certification shall also identify as possible exceptions to com-
pliance any periods during which compliance is required and in which an excur-
sion or exceedance as defined under part 64 of this chapter occurred; and
(D) Such other facts as the permitting authority may require to determine the
compliance status of the source.
Compliance certifications must be submitted at least on an annual basis. 40 CFR
§70.6(c)(5). The regulations State that the permittee may "cross-reference the permit or
previous reports, as applicable" in the identification of applicable information. The
statute does not address cross-referencing.
Supporting Information: Comments Received
Comments regarding the usefulness of certifications:
A number of commenters noted that the annual compliance certification is a valuable tool
for increasing management awareness of environmental issues. Some commenters also
noted that the compliance certification is an effective tool for assuring compliance.
• "The fact that it's a plant manager or a vice president of EH&S that has to sign these
puts a lot more attention on air issues than there had been in the past, without a doubt.
I've talked to many, many more VPs and plant managers after Title V than I ever did
before, because in the past it was always, you know, it's the environmental guy that
handles that, and he'll answer all your questions. The effective way to implement Ti-
tle V, and the way that I think it's being done at facilities that are doing well in meet-
ing their Title V commitments, it integrates compliance with day-to-day operations.
Compliance is not something that's handled by the environmental department and it's
separate from what goes on day to day at the plant. I think, at least in the clients that
I'm working with, compliance is seen as an obligation of the people that run the plant
on a day-to-day basis far more than it had been in the past." (Clean Air Eng. at tran-
script pp. 2-111 to 2-112).
• "The awareness level within our organization, I think, has increased incredibly in
terms of what the compliance requirements for air permits need to be.... It's also re-
sulted in much better documentation of compliance. ... in terms of maintenance, in
terms of documentation, of other operating parameters, monitoring requirements, et
cetera, I think it is really, again heightened that awareness and made our operations
perform better and has put that focus on demonstrating compliance ..." (RR Donnel-
ley at transcript p. 2-295).
• "The annual compliance certification has proved to be an effective tool for assuring
compliance with air quality requirements. Requiring industry to annually conduct a
comprehensive review of the facility's compliance status has achieved its purpose.
CENSARA State and local agencies support annual compliance certification as a
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valuable means of assuring continual compliance with air quality requirements."
(CENSARA at transcript p. 4-9).
• "As for the annual compliance certification, we believe that they will come into their
own as an important tool for enforcing Title V requirements. They have elevated fa-
cility accountability to the corporate officer level. Annual statement of compliance
signed under penalty of peijury have appeared to spur internal compliance reviews
and have led to increased operator training and improvements in facility recordkeep-
ing practices ..." (BAAQMD, p. 96).
• "Title V has also resulted in better compliance by major sources. Sources better
understand and pay attention to their permit requirements. Michigan has noted a
downward trend in the number of significant air violations at major sources and at-
tributes this to sources being required to certify compliance with all permit require-
ments." (MDEQ at transcript p. 4B-11).
Several State and local agency representatives observed that they are not finding many
significant, previously unknown non-compliance issues in compliance certifications.
Several stated that much reported noncompliance involves missed data collection, failure
to keep records, and other similar issues. Some of these States also noted that violations,
including shutdowns, malfunctions and excess emissions, were also identified.
• "[WJhere we already have a strong enforcement program, Title V compliance certifi-
cation of reports have not resulted in significant improved compliance." (South Coast
AQMD at transcript at 4-218).
• "What we see the majority of deviations for are primarily record keeping, missed
records, some opportunities where they were to do some type of opacity reading that
was not done. Things along that nature. We do occasionally see reports of emission
violations, which we definitely follow up on as a violation." (Michigan DEQ at tran-
script 4B-13).
• "We'll, I think we're probably seeing a mixture of all types of deviations and excur-
sions reported. However, it seems like a lot of them, a lot of the deviations reports
coming in, could be record keeping and monitoring types of situations, where it may
not be a violation, but where they just had a deviation from some permit require-
ment." (Alabama DEM at transcript p. 70).
• "Our States feel that the annual Title V compliance certifications have not yet proved
themselves to be a very useful compliance tool. We recognize their value to the pub-
lic in that they provide an annual snapshot of a facility's compliance, and they also
put the onus on the facility that at least once a year they review all of the applicable
requirements; however, it has been our experience that they haven't yielded any new
compliance issues or compliance actions." (NESCAUM at transcript p. 4B-50).
• "With the issuance of Title V permits we now have had a couple of years of compli-
ance certifications and deviation reporting from the Title V permitted sources. And
that has really resulted in few surprises and no substantive noncompliance with emis-
sion standards. The deviations that we see being reported are relatively minor in na-
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ture, would have been known by the district, most likely without Title V; and if they
are associated with equipment breakdowns, we had three Title -V-breakdown report-
ing requirements in existence in our program already. An I should mention, also, that
the stationary sources that are required to have Title V permits are already inspected
by our agency anywhere from two to four times a year. Those inspections include re-
viewing records the facilities are required to complete and maintain, and that gives us
a good indication of any noncompliance concerns associated with the facility separate
from any deviation reporting we see." (San Diego County APCD at transcript p. 4B-
134).
• "The way Georgia is set up, we have a permitting group, and we have a compliance
group. And I'm head of the permitting group, and the compliance group is the one
that receives all our reports and does the inspections based on the permit. And from
listening to them and working very closely with them, the deviations that I generally
hear about have to do with record-keeping violations or deviations. That's generally
what we hear. And then, again, they often usually have some shutdown malfunction,
excess emissions, that will occur and get reported. But from what I have heard, the
majority of them do have to do with the record keeping and reporting." (Georgia
EPD at transcript p. 4B-91).
• "[I]t is not surprising that most violations reported are not associated with emissions
measurements. This reflects more on the lack of testing, than on compliance with
emission limits." (New Jersey DEP OAR-2004-0075-0017 at p. 4).
Some industry commenters indicated that the compliance certification process had raised
awareness regarding environmental issues in their organizations. Comments by RR
Donnelley p. 2-295; 3M p. 2-45; OAR-2004-0075 at 3 (GPA). In response to a question
from the Task Force, one trade association representative indicated that the compliance
certification had not changed whether or not companies in his association complied with
air regulations. He noted that compliance is the starting point for their companies, both
before the Title V program and afterward, and that noncompliance with any environ-
mental statute could shut their doors. Thus, while certifying compliance is a requirement
of Title V, it is not the reason that companies in his organization are in compliance with
Clean Air Act obligations. (With our industry, that's [compliance] really the starting
point. We know that you need documentation for that. But, perhaps, you've gone too far.
Our best engineers should be doing pollution prevention in the plant and we're taking our
best engineers to fill out these compliance forms. The longer we fill them out the bigger
the forms get. That's our concern." (American Forest and Paper Association at transcript
p. 1-228).
A Task Force member noted in response to a commenter that, "companies like ours have
a very clear compliance obligation, have always had that obligation ... So it's always
been a focus. I think what Title V has provided is more of a structured environment
where the plant manager sign off and certification, which I think strengthens the overall
compliance certification process. And I can speak for a number of the companies that
I'm aware of that we have very rigid compliance assurance systems and Title V has
helped to drive that by the responsibilities we have, but I wouldn't want to say that in the
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base case there's been a change in compliance, but it strengthens the compliance assur-
ance process and I think you can probably see that in a number of companies." (More-
house at transcript p. 1-232).
Comments regarding the form of certifications:
Commenters noted that a wide variety of compliance certification forms are currently in
use. AFP A, p. 29-30, NYDEC p. 114, 3M 2-65. It is unclear the extent to which States
require that sources use a specific form.
Many written comments were filed by local permitting authorities and industry strongly
supporting the use of a short form certification, which does not require the individual
identification of permit terms and conditions. See OAR-2004-0075-0017 (NJDEP),
OAR-2004-0075-0021 (MDEQ), OAR-2004-0075-0046 (NPRA), OAR-2004-0075-0047
(API), OAR-2004-0075-0048 (STAPPA/ALAPCO), OAR-2004-0075-0049 (ACC),
OAR-2004-0075-0052 (CAIP), OAR-2004-0075-0053 (AFPA), OAR-2004-0075-0055
(UARG), OAR-2004-0075-0056 (AAM), OAR-2004-0075-0074 (APF), OAR-2004-
0075-0082 (ODAPC), OAR-2004-0075-0083 (OCTC, OMA, OCC), OAR-2004-0075-
0085 (CASE).
• Commenters stated that the short form meets the core legal requirement to certify
continuous or intermittent compliance with permit requirements. They stated that the
long form requires a source to reState the permit in a different format, which is ex-
tremely time-consuming.
• The long form does not add any assurance of compliance because facilities develop
their own systems for making their certifications, and those do not rely on EPA's
"long form," noting that the long form simply adds another layer of burden.
• The long form does not make the certification any more enforceable. The responsible
official for a plant must certify compliance and the consequences for a false certifica-
tion are the same, regardless of what form is used.
• The long form can actually obscure compliance information. If a deviation is re-
ported on a form that is 100 or more pages, it may be difficult to find. If a deviation
is reported on a form that States the facility was in compliance except for the follow-
ing deviations, it will stand out. It will get the responsible official's attention, as well
as the permitting authority's attention. It will prompt a dialogue, a response.
• The permit should serve as the reference point for identification of requirements and
methods of determining compliance status.
• As implemented, the long form's information on method of compliance simply uses a
cite to the permit or a catch phrase like "records review" or "recordkeeping" or
"monitoring" or "N/A " It adds nothing to enforcement staff or the public's review of
the certification.
• Periodic compliance and deviation reports submitted by sources contain more timely
and useful details about compliance issues for permitting authorities and the public.
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This reduces the importance of the compliance certification being a highly detailed
document.
• Commenters noted that EPA staff has indicated in public forums that the "long form"
is not legally required. Nonetheless, it was reported that many EPA regional offices
are indicating to States that a line-by-line form is strongly preferred, if not required.
• The New York State Department of Environmental Conservation (NYSDEC), in
contrast, commented that it believes, according to the regulations, "that you really
need to certify compliance on a line-by-line basis, because you need to indicate how
you determine that you are in compliance." (NYSDEC at transcript p. 4-123) NYS-
DEC also noted that it found the longer form useful because it allowed the identifica-
tion of problems at a greater level of detail. (NYSDEC at transcript p. 4-124) On the
other hand, the Michigan Department of Environmental Quality commented that it
was able to convince Region 5 that a short form is both legal and appropriate and that
there had been conflicting messages from EPA between the Regional and Headquar-
ters offices regarding the need for the long form. (MDEQ at transcript p. 4B-14).
One industry commenter noted, the long form "goes a bit too far, that that turns into an
exercise for both the company and also for the permitting authorities that is just more
resource-intensive than what is justified by what is going on" but was willing to accept a
"line-by-line certification of certain key things, such as the emissions standards." (3M at
transcript p. 2-065).
Similar to the written comments, during the public hearings, several commenters objected
to the use of the long form certification questioning its value particularly in light of the
additional workload it mandates.
• "The first comment I would like to make is with regard to the compliance certifica-
tions themselves. In some States our facilities are required to go — well, actually, in
most States — are required to go through every condition of the Title V permit and in-
sert some type of comment. And I would encourage the agencies, the State, and EPA
to allow for a simple certification where we know the exceptions, as opposed to going
through a line-by-line certification when there are no issues." (AFPA at transcript p.
4-30).
• "A point on certifications. And we've had some issues here with the length of those.
We believe that these should be streamlined, focused on deviations, violations, and
provide sufficient detail on the deviations. We don't think it's useful for compliance
certifications to repeat applicable requirements for source operations where there is
no problem. We find that the front line certifications get too detailed for our sources
where there are no problems; that the real problems get buried in the certification."
(New Jersey DEP at transcript p. 4B-31).
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Members of environmental groups and citizen comments raised the benefits of a more
detailed and inclusive certification:
• "[T]he one [compliance certification] that I looked at it did go line for line and you
could match it up with the permit and refer to the number in the permit where the
term was, so it was very easy to go through. ... I think it is useful to have it be the
line by line ..." (Women's Voices for the Earth at transcript p. 3-167).
• "The same thing to a different degree is true with the compliance certification where
I'm sure you all are aware you're getting these squirrelly reports that just talk about
whether something is - what are the terms - in periodic compliance ... it's very diffi-
cult to determine from those if they do not say yes, we're in compliance, but no
we're, you know in partial compliance. When were you not in compliance? ... Most
of the reports, the deviation reports are not listed or attached to those [compliance
certifications], ... So it's just very hard ultimately for citizens to come down, look at
a document, determine what the law is, pick up the compliance reports to determine
whether a source is in compliance or not." (Zars at transcript p. 3-257 to 258).
Finally, there were a number of comments regarding the use of electronic compliance
tools and on uniformity regarding compliance certification forms. A representative from
Valero refining discussed electronic compliance demonstration tools and noted that their
usefulness for tracking facility compliance. He emphasized that such tools must maintain
the relationship between the verification activity and the compliance obligation in the
permit. He noted that Valero would be happy to share information regarding their tool
and what they have learned. (Valero at transcript p. 4-335).
Similarly, the Bay Area Air Quality Management District noted: "[i]t would be very
useful if EPA could develop software tools that could be used nationally and adopted by
State and local agencies to enhance the accuracy and comprehensiveness of compliance
reporting - tools similar to that that is being used in Texas and in New York."
(BAAQMD at transcript p. 4-149).
Likewise, 3M stated: "we would like to see there be more uniformity around this from
permitting authority to permitting authority. In some case we see very great detail guid-
ance or requirements on the part of the permitting authority as to how this is to be done.
In other cases they're totally silent. We think that more uniformity would be helpful."
(3M at transcript p. 2-055).
Discussion: How much Information Should be Required in a Compliance
Certification?
1. How should applicable requirements be identified?
A central issue is how compliance certifications should identify "each term or condition
that is the basis of the certification." In the "long" form each term is identified either by
description or number, or both. In the "short" form the permit itself is generally refer-
enced.
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Some Task Force members view the ability to cross-reference the permit specifically
provided in the rules as clearly contemplating a short form that would reference the per-
mit as the basis for the certification. Other Task Force members raised concerns about
the "short" form certification's failure to specifically identify the terms and conditions for
which it certifies compliance. These Task Force members believe the short form certifi-
cation does not adequately identify the terms and conditions for which compliance is
being certified, particularly:
1. where the underlying permit itself uses extensive incorporation by reference and does
not, on its face, include each applicable requirement and its associated monitoring,
2. where the permit allows for alternate operating scenarios or compliance options, or
3. where there are some terms included in the permit which are not actually appropriate
for source certification.
These Task Force members stated that if a Title V permit itself makes extensive use of
incorporation by reference and the compliance certification merely references that permit,
it is not clear with which conditions the source is certifying compliance, which arguably
could result in less accountability for the owner or operator who signs the certification.
For example, Texas Title V permits incorporate by reference the conditions of applicable
New Source Review (NSR) Permits. Those NSR permits in turn incorporate certain
unspecified information from the NSR permit applications. When the compliance certifi-
cation merely states that the source is certifying compliance with the Title V permit, it is
not clear for which conditions compliance is being certified. Some Task Force members
believe that such ambiguity regarding the requirements with which a source is certifying
compliance is unacceptable under Title V and that, if the permit itself is not clear regard-
ing a source's obligations, the source must specifically identify the requirements with
which it is certifying compliance in the compliance certification form.
Likewise, if a permit allows the source several options for compliance with a specific
requirement, and the compliance certifications merely references the whole permit, some
Task Force members raised a concern that it would not be not clear which option to
source chose (with which associated monitoring method) making it almost impossible for
the public to track and review compliance certifications for their accuracy.
In response, other Task Force members noted that where an underlying NSR permit uses
extensive incorporation by reference, the long forms currently in use merely require
listing that permit condition in the Title V permit, which would not necessarily add clar-
ity regarding the requirements with which the source was certifying compliance. Thus,
they believed this concern was best addressed through a discussion of the appropriate
permit content for applicable requirements rather than the format of the certification.
These Task Force members also expressed concerns over the substantial burden of recre-
ating the permit in a compliance certification, citing EPA's decision to allow cross-
referencing of the permit as a basis for certification to permit requirements.
Some Task Force members, while not opposed to specifically cross-referencing Title V
permit conditions by number in the compliance certification as long as the permit itself
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clearly identifies all permit terms and conditions, remain opposed to the generic cross-
referencing found in many short forms.
2. How should the method used to determine compliance be identified?
With the "long" form, the method used to determine compliance is specifically identified
for each applicable requirement, either as a citation or in a summary fashion. For exam-
ple, State forms either provide for listing the permit condition that is the method of com-
pliance or a code (RR for records review, RK for recordkeeping, PM for parameter moni-
tor, CEM for continuous emissions monitor, etc.). With the "short" form, however, the
form includes a general statement that, for the terms for which the source is certifying
continuous compliance (and thus not providing a line-by-line certification), the compli-
ance determination is based on the monitoring, reporting and/or recordkeeping methods
required by the Title V permit.
Some Task Force members expressed concern that the "short" form cannot adequately
identify the method used to determine compliance where the permit itself does not, on its
face, clearly identify the monitoring method required for each permit requirement, or
where the permit provides for alternative compliance options. Likewise, where the
source is permitted to rely on information other than the monitoring, reporting or record-
keeping required in the permit for determining compliance, the concern was raised that
the short form does not adequately identify that information.
Other Task Force members believe that the monitoring references provided in the long
form provide little insight into what was actually done anyway and balancing that against
the burdens associated led them to the conclusion that the long form should not be used,
particularly when the rules allow for cross referencing the permit. These Task Force
members also stated that in their experience, while a certification may not specify the
modes of operation authorized by the permit during the reporting period, such informa-
tion is typically available in detailed reports that are submitted under the permit and many
substantive requirements (e.g., periodic MACT compliance reports). They viewed add-
ing this information to the certification as an additional layer of reporting that is not
necessary, since the information has already been submitted and certified for accuracy.
In response, some Task Force members noted that other reports are often not easily ac-
cessible by the public and that one of the purposes of Title V was to consolidate this
information for easy access.
Discussion also arose regarding whether or not sources should be required to use only the
monitoring or reporting methods required by the permit in making a compli-
ance/noncompliance certification. [This topic is discussed in more detail in the paper
regarding Definitiveness of the Permit in Section 4.6 of this report]. It was recognized
that where the permit specifies a particular method of compliance and the source does
rely on different information to support its certification of continuous compliance, addi-
tional explanation regarding the method used for certifying compliance should be in-
cluded in the certification form. The Task Force discussed whether a variation on the
"short" form could be developed that would include information relied upon by the
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source to make the certification that is not specified in the permit. The Task Force also
discussed the extent to which alternative compliance options need to be separately listed
in the certification form.
A related issue was raised regarding how sources identify the method of determining
compliance for the monitoring, recordkeeping and reporting provisions of the Title V
permit. Some Task Force members believe sources should not be required to identify a
method for determining compliance with these requirements. Under this approach, the
permittee would be required to identify the method of determining compliance only for
the permit terms for which the permit specifies a method and that the permit should be
cross-referenced for this purpose as provided in the rules. Other Task Force members
suggested using generic language in the certification to indicate, for example, that com-
pliance with all recordkeeping and reporting provisions in the permit was determined by
record review.
3. What does/should continuous versus intermittent compliance mean and how
should it be identified in the form?
Title V requires that sources identify whether they were in continuous or intermittent
compliance during the certification period. Rather than indicating whether their compli-
ance was continuous or intermittent, EPA's rules initially allowed sources to indicate
whether the monitoring data was continuous or intermittent. The D.C. Circuit found
these rules inconsistent with the statute. NRDC v. EPA, 194 F.3d 130 (D.C. Cir. 1999).
In June 2003, EPA changed its rules to require sources to specifically identify whether
their compliance was continuous or intermittent. As a result of these changes, some
States have rules that are inconsistent with the current Federal rules. Questions remain
regarding whether local permitting authorities are requiring compliance certifications to
identify whether compliance was continuous or intermittent and how "continuous" and
"intermittent" compliance are being defined.
4. How should deviations and possible exceptions from compliance be identified?
In the "long" form, the compliance status - either continuous or intermittent - for each
permit term must be individually stated on the form. With the "short" form, for all permit
terms and conditions for which compliance is continuous, there is a general statement that
the source was in continuous compliance. For permit terms for which the source experi-
enced deviations, there is a specific listing of those terms and the deviations are identi-
fied. Some permitting authorities rely on Section 70.6(c)(5)'s statement that sources may
cross reference the permit and previously submitted reports and, therefore, do not require
facilities to include specific information regarding deviations previously reported to the
permitting authority. Instead, facilities are allowed to simply reference that previous
report.
Some Task Force members believe that complete information regarding all deviations
should be included in the compliance certification. Those members feel that requiring the
public and/or agency staff to go back through old files to find deviation reports, which
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may have since been updated or corrected, is unreasonable. Other Task Force members
believe this is a data management issue rather than a compliance certification issue,
particularly given that the rules allow for cross-referencing.
One commenter noted "at least one opportunity for information to fall through the
cracks" in the compliance certification process. The Portland Cement Association stated:
"some States have indicated that deviations—such as an incident of excess emissions—
that have been previously reported to the State need not be re-submitted when the semi-
annual certifications are filed. A problem can arise if the same semi-annual certifications
prepared for the State are sent to EPA. If individually reported deviations are not in-
cluded in those certifications, then EPA is not notified of these incidents." See OAR-
2004-0075-0037 at 2 (Portland Cement Ass'n). Some Task Force members believe that
the referencing of previous reports is clearly allowed by the rules (40 CFR § 70.6(c)(5))
and the rule contemplates the compliance certification being submitted to EPA. As long
as the certification is submitted, these Task Force members believe that the requirement
has been met.
Recommendations
It was generally agreed among the members of the Task Force that compliance certifica-
tions are a valuable component of the Title V program and have increased management
awareness regarding environmental enforcement issues. With respect to the optimal
content and format of the compliance certification, two potential recommendations
emerged from the discussions of the Task Force after considering the extensive public
comments on the issue and these are noted below with identification of the supporters of
each position. While there were divergent views in this area, there were areas of agree-
ment that we also note below.
Recommendation #1
Most of the Task I orce endorsed an approach akin lo the "short form" certification.
belie\ing that a line-by-line listing of permit requirements is not required and imposes
burdens without additional compliance benefit I nder this approach, the compliance
certification form would include a statement that the source was in continuous compli-
ance with permit terms and conditions with the exception of noted delations and periods
of intermittent compliance Although the permittee would cross-reference the permit lor
methods of compliance, in situations where the permit specifies a particular monitoring
method but the permittee is relying on different monitoring, testing or other e\idence to
support its certification of compliance, that reliance should be specifically identified in
the certification and hrielly explained An example of such a case would be where the
permit requires continuous temperature records to \erily compliance with a minimum
temperature requirement 11" the chart recorder data was not recorded lor one hour during
the reporting period because it ran out of ink. and the source relies on the facts that the
data before and after the hour shows temperature abo\ e the requirement minimum and
that the alarm system which sounds if temperature falls below set point was functioning
and did not alarm during the hour, these two items would be noted as the data upon which
the source relies for certifying continuous compliance with the minimum temperature
requirement.
(\ bliiif! on next page.)
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(Voting for Recommendation #1)
In Favor (10)*: Schwartz, Hodanbosi, Hagle, Kaderly, Broome, Freeman, Paul,
Morehouse, Wood, Golden
Opposed (4)*: Keever, Owen, Palzer, Powell
Abstentions:
Clarifications
*Note: Number in parentheses () is the total number of Task Force members voting for this position.
Recommendation #2
Others on the Task force beliexed thai more detail than is included in the short form is
needed in the compliance certillcation to assure source accountability and the enforce-
ability of the certillcation These members xiewed at least one of the following options
as acceptable (some members accepting any. while others accepting only one or two)
1 The use of a form that allows sources to use some cross-referencing to iden-
tity the permit term or condition to which compliance was certified Cross-
referencing would only be allowed where the permit itself clearly numbers or
letters each specific permit term or condition, clearly identities required moni-
toring. and does not itself include cross-referencing beyond detailed citations
to publicly accessible regulations. The compliance certillcation could then
cite to the number of a permit condition, or possibly the numbers for a group
ol"conditions, and note the compliance status for that permit condition and the
method used lor determining compliance In the case of permit conditions
that are not specifically numbered or lettered, the form would use text to iden-
tity the requirement lor which the permittee is certifying
2 I se of the long form
I se ol" the permit itself as the compliance certillcation form with spaces in-
cluded to identity whether compliance with each condition was continuous or
intermittent and information regarding delations attached
//; i'avor of litis Range of. \pproaches (S): Shu mski. \ an der Yaail. I lara^an. keex cr. Pal/.er.
Owen. Powell. Van frank
Opposed (Id): Schxxail/.. 11 oil a n bos i. liable. kaderlx. IJroome. freeman. Paul. Morehouse.
Wood. (ioklen
. I bstentions:
Cliirificiitioiis: \an del" \ aai'l faxois Option 2 hut believes Option 3 is also supportable I laiauan
and Owen fax or Option 3 Powell. Pal/er. and Van frank fax or'Options I and 2'
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Recommendation #3
Where the permit specifies a particular monitoring or compliance method and the source
is relying on other information, that information should be separately specified on the
certification form.
In Favor (18): Sliwinski, van der Vaart, Haragan, Keever, Palzer, Owen, Powell, Van
Frank, Schwartz, Hodanbosi, Hagle, Kaderly, Broome, Freeman, Paul, Morehouse,
Wood, Golden
Opposed:
Abstentions:
Clarifications:
Recommendation #4
Where a permit term does not impose an affirmative obligation on the source, the form
should not require a compliance certification; e.g., where the permit states that it does not
convey property rights or that the permitting authority is to undertake some activity such
as provide public notice of a revision.
In Favor (18): Sliwinski, van der Vaart, Haragan, Keever, Palzer, Owen, Powell, Van
Frank, Schwartz, Hodanbosi, Hagle, Kaderly, Broome, Freeman, Paul, Morehouse,
Wood, Golden
Opposed:
Abstentions:
Clarifications:
Recommendation #5
All forms should provide space for the permittee to provide additional explanation regarding its
compliance status and any deviations identified during the reporting period.
In Favor (18): Sliwinski. van der Vaart. Haragan. Keever. Palzer. Owen. Powell. Van Frank.
Schwartz. Hodanbosi. Hagle. Kaderly. Broome. Freeman. Paul. Morehouse. Wood. Golden
Opposed:
Abstentions:
Clarifications:
Related Topics: Definitiveness of the Permit; Incorporation of Applicable
Requirements
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Attachment: Exhibits A & B—Compliance Certification Forms
Exhibit A
Title ¥ Task Force Paper on Compliance Certification Forms
Short Form
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mm
MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY
AIR QUALI TY DIVISION
RENEWABLE OPERATING PERMIT
REPORT CERTIFICATION
Aullmreesf bf 1994 FA. 451, as amended Fame to provitfe this Information may retut in civl amiM crimmel penalties.
Reports submitted pursuant to R J3B.1213 (Rule 213). su brutes |3)|c) and/or of Michigan's Rennwablo Operating Permit (ROP) program
must bo certified By a responsible official. Additional information regarding the reports and documentation listed below must be kept on file
for at least 5 years, as specified in Rule 213pMb)(il), and be made available to the Department of Environmental Quality, Air Quality Division
upon request.
Source Name County
Source Address City
AQD Souice ID £SRN) ROP No. ROP Section No.
~ Annua! Compliance Certification (Pursuant to Rule213S4KcS)
Reporting period (provide inclusive dates): From To
~ 1. During the entire reporting period, this source was in compliance with ALL terms and conditions contained in the ROP, each
term and condition of which is identified and included by this reference, The methods) used to determine compliance is/are tie
methodfs) specified in the ROP.
~ 2. During the entire reporting period this source was in compliance with all terms and conditions contained in the ROP, each
term and condition of which is identified and included by this reference, EXCEPT for the deviations identified on the enclosed
deviation report®. The method used to determine compliance for each term and condition is the method specified in the ROP.
unless ofterwise indicated and described on the enclosed deviation report(s).
~ Semi-Annual (or More Frequent) Report Certification {Pursuant to Rule'21 3(3J(c)J
Reporting period (provide inclusive dates): From To
~ 1. During the entire reporting period, ALL monitoring and associated lecoidkeeping requirements in the ROP were met and no
deviations from these requirements or any other terms or conditions occurred,
~ 2. During the entire reporting period, ail monitoring and associated recordkeeping requirements in the ROP were met and no
deviations from these requirements or any other terms or conditions occurred, EXCEPT for the deviations identified on the
enclosed deviation reportfs).
~ Other Report Certification
Reporting period {provide inclusive dates): From To
Additional monitoring reports or other applicable documents required by the ROP are attached as described:
I certify that, based on information and belief formed after reasonable inquiry, the statements and information in this report and the
supporting enclosures are true, accurate and complete
Name of Responsible Official {print or type) Title Phone Number
Signature of Responsible Official Date
* Photocopy (his form as needed. COP 5736 (Rev 11-04)
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mm
MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY
A!R QUALITY DIVISION
RENEWABLE OPERATING PERMIT
DEVIATION REPORT
Authorised by 1994 P. A. 451, as amended Failum to provide this inlbimetion may result in civil atxlior criminal pemilies.
This form may be submitted in conjunction wife fee Renewable Operating Permit Report Certification form {EQP 5736) to report deviations
from all general conditions and special conditions in tie Renewable Operating Permit (ROP) for which deviations required to be reported by
R 336,1213 (Rule 213) sub rule <3Me) have occurred. Additional information regarding the reports and documentation listed below must be
kept on file for at least 5 years, as specified in Rule 213PMW1"). and be made available to the Department of Environmental Quality. Air
Quality Division, upon request. Items 1 - S must be compWed for afl deviations being reported.
Source Name County
Source Address City
AQD Source ID (SRN) ROP No. ROP Section No.
ROP Section Contact Contact Phone No.
Reporting Period {provide inclusive dates): From to
Report Type: ~ Annual ~ Semi Annual ~ Other (Describe)
1. Group or
Source Wide ID
2. Condition No,
3. Date(s) of Occurrence
4. Previously reported ?
~ Yes ~ No
If Yes, Date
S, Duration of Deviation
6. Method Used to Determine Compliance Status
(if different from method specified in ROP)
[ 7, Description of Deviation
8 Reason for Deviation and Description of Corrective Action Taken
1. Group or
Source Wide ID
2. Condition No.
3. Date{s) of Occurrence
4, Previously reported ?
~ Yes ~ No
if Yes, Date
5. Duration of Deviation
8. Method Used to Determine Compnanca Status 7. Description of Deviation
{if different from method specified in ROP)
8. Reason for Deviation and Description of Corrective Action Taken
1. Group or
Source Wide ID
2. Condition No.
3. Date(s) of Occurrence
4, Previously reported ?
~ Yes ~ No
if Yes, Date
5, Duration of Deviation
6. Method Used to Determine Compliance Status
(if different from method specified in ROP)
7, Description of Deviation
8. Reason for Deviation and Description of Corrective Action Taken
•Photocopy this torn as needed. Page of EQP ST3? (11/04)
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Exhihit B
Title ¥ Task Force Paper on Compliance Certification Forms
Long Form
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Content Issues
Startup, Shutdown, and Malfunction
4.8 Topic: Startup, Shutdown, and Malfunction
Issue Observation/Description
The Task Force received testimony and comments raising the issue of whether startup,
shutdown, malfunction (SSM) defenses, both in State implementation plans and in Fed-
eral regulations, create enforcement and compliance problems. This paper discusses
those concerns and how they may or may not be addressed through Title V.
Statutes/Regulations/Guidance
Title V: Title V of the Clean Air Act (CAA or the Act) requires that State permitting
programs have adequate authority to "assure compliance by all sources required to have a
permit under this title with each applicable standard, regulation or requirement under this
Act." 42 U.S.C. § 7661a(b)(4). In addition, "each permit issued ...shall include enforce-
able emission limitations and standards ... and such other conditions as are necessary to
assure compliance with applicable requirements of this chapter, including the require-
ments of the applicable State implementation plan." 42 U.S.C. § 7661c(a).
EPA's Part 70 rules include an emergency provision that states:
(g) Emergency provision -
(1) Definition. An "emergency" means any situation arising from sud-
den and reasonably unforeseeable events beyond the control of the
source, including acts of God, which situation requires immediate
corrective action to restore normal operation, and that causes the
source to exceed a technology-based emission limitation under the
permit, due to unavoidable increases in emissions attributable to
the emergency. An emergency shall not include noncompliance to
the extent caused by improperly designed equipment, lack of pre-
ventative maintenance, careless or improper operation, or operator
error.
(2) Effect of an emergency. An emergency constitutes a defense to an
action brought for noncompliance with such technology-based
emission limitations if the conditions of paragraph (g)(3) of this
section are met.
(3) The affirmative defense of emergency shall be demonstrated
through properly signed, contemporaneous operating logs, or other
relevant evidence that:
(i) An emergency occurred and that the permittee can identify the
causes(s) of the emergency;
(ii) The permitted facility was at the time being properly operated;
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Content Issues
Startup, Shutdown, and Malfunction
(iii)During the period of the emergency the permittee took all rea-
sonable steps to minimize levels of emissions that exceeded the
emission standards, or other requirements in the permit; and
(iv)The permittee submitted notice of the emergency to the permit-
ting authority within 2 working days of the time when emission
limitations were exceeded due to the emergency. This notice
fulfills the requirement of paragraph (a)(3)(iii)(B) of this sec-
tion [regarding prompt reporting of deviations]. This notice
must contain an adequate description of the emergency, any
steps taken to mitigate emissions, and corrective actions taken.
(4) In any enforcement proceeding, the permittee seeking to establish
the occurrence of an emergency has the burden of proof.
(5) This provision is in addition to any emergency or upset provision
contained in any applicable requirement.
40 C.F.R.§ 70.6(g).
State Implementation Plans: The CAA requires State Implementation Plans (SIPs) to
provide for attainment and maintenance of the National Ambient Air Quality Standards
(NAAQS) through enforceable emission limits. 42 U.S.C. § 7410(a)(2). EPA is prohib-
ited from approving a SIP that would interfere with attainment or any other applicable
requirement of the Act. 42 U.S.C. §§ 7410(k)(3), (1). In affirming EPA's denial of one
State's request for a SIP revision to include an SSM provision, the 6th Circuit affirmed
EPA's determination that "SIPS cannot provide broad exclusions from compliance with
emission limitations during SSM periods." Michigan Manufacturers Association v.
Browner, et al., 230 F.3d 181,185 (6th Cir. 2000). (Affirming EPA's determination that
automatic exemptions "jeopardize ambient air quality ... because the rules excuse com-
pliance from applicable emission limitations and provide no means for the State to en-
force the NAAQS.")
Under EPA's SIP policy, regarding excess emissions during SSM, States may provide
affirmative defenses to penalties for violations caused by periods of excess emissions due
to malfunctions, startup, or shutdown, but may not provide "automatic" exemptions for
emissions in excess of emission limits. According to EPA's policy, "because excess
emissions might aggravate air quality so as to prevent attainment or interfere with main-
tenance of the ambient air quality standards, EPA views all excess emissions as violations
of the applicable emission limitation." In addition to affirming States' ability to exercise
enforcement discretion, EPA's policy allows states (1) to craft limited affirmative de-
fenses to penalties for violations during SSM periods, and (2) in limited circumstances to
build into a source-specific or source-category-specific emission standard provisions
meeting certain criteria which State that the otherwise applicable emission limitations do
not apply during narrowly defined startup and shutdown periods.6
6 EPA's SIP policy is set out in the following series of documents: Memorandum from Kathleen Bennett,
Assistant Administrator for Air, Noise and Radiation, "Policy on Excess Emissions During Startup and
Shutdown" (Sept. 28, 1982); Memorandum from Kathleen Bennett, EPA Assistant Administrator for Air,
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Content Issues
Startup, Shutdown, and Malfunction
EPA's policy outlines the conditions of the limited permissible affirmative defense to
penalties for malfunctions. The affirmative defense may only apply where: (1) the ex-
cess emissions were caused by a sudden, unavoidable breakdown of technology, beyond
the control of the owner or operator, (2) the excess emissions did not stem from any
activity that could have been foreseen and avoided or planned for and could not have
been avoided by better operation and maintenance practices, (3) air pollution controls and
processes were maintained and operated in a manner consistent with good practice for
minimizing emissions, (4) repairs were made quickly (including the use of off-shift labor
and overtime if necessary), (5) the amount and duration of the excess emission was
minimized to the maximum extent practicable, (6) all possible steps were taken to mini-
mize the impact on ambient air quality, (7) all emission monitoring systems were kept in
operation if at all possible, (8) the owner or operator's actions in response to the excess
emissions were documented by "properly signed, contemporaneous operating logs, or
other relevant evidence," (9) the emissions were not part of a recurring pattern indicative
of inadequate design, operation, or maintenance, and (10) the owner/operator promptly
notified the regulatory agency. EPA 1999 SIP Policy, Attachment at 3-4.
Further, the policy clarifies those circumstances where the affirmative defense may not
apply. It may not apply to "bar EPA's or citizen's ability to enforce applicable require-
ments." It cannot apply to "SIP provisions that derive from Federally promulgated per-
formance standards or emission limits, such as new source performance standards
(NSPS) and national emissions standards for hazardous air pollutants (NESHAPS),"
which already provide SSM exemptions where EPA deemed them appropriate,7 and it
cannot apply "for areas and pollutants where a single source or small group of sources
has the potential to cause an exceedance of the NAAQS or PSD increments."
With respect to startup and shutdown exemptions, EPA's policy notes:
In general, startup and shutdown of process equipment are part of the
normal operation of a source and should be accounted for in the planning,
design, and implementation of operating procedures for the process and
control equipment. Accordingly, it is reasonable to expect that careful and
prudent planning and design will eliminate violations of emission limita-
tions during such periods.
EPA 1999 SIP Policy, Attachment at 5.
Noise and Radiation, "Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunc-
tions" (February 15, 1983); Memorandum from Steven Herman, EPA Asst. Administrator for Enforcement
and Compliance Assurance, "State Implementation Plans: Policy Regarding Excess Emissions During
Malfunctions, Startup, and Shutdown" (Sept. 20, 1999) (EPA 1999 SIP Policy); Memorandum from Eric
Schaeffer, Director Office of Regulatory Enforcement, "Re-Issuance of Clarification - State Implementa-
tion Plans (SIPs): Policy Regarding Excess Emissions During Malfunction, Startup, and Shutdown. (Dec.
5, 2001).
7 Because NSPS and NESHAPs are "technology-based" standards, they are statutorily required to take into
account technological limitations during SSM periods.
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Content Issues
Startup, Shutdown, and Malfunction
EPA's policy does allow States to adopt general affirmative defense provisions to penal-
ties for excess emissions caused by startup and shutdown subject to the following limita-
tions: (1) the periods of excess emissions were short and infrequent, and could not have
been prevented through careful planning and design, (2) the periods of excess emissions
were not part of a recurring pattern indicative of inadequate design, operation, or mainte-
nance, (3) if caused by bypass, the bypass was unavoidable to prevent loss of life, per-
sonal injury, or severe property damage, (4) the facility was operated at all times consis-
tent with good practice for minimizing emissions, (5) the frequency, duration, and impact
on ambient air quality was minimized, (6) all monitoring systems were kept in operation
if possible, and the owner or operator actions during the period of excess emissions were
documented in "properly signed, contemporaneous operating logs, or other relevant
evidence," and (7) the owner or operate promptly notified the appropriate regulatory
agency. EPA 1999 Policy, Attachment at 6-7.
In addition, EPA's policy allows States, in limited circumstances, to create narrowly-
tailored SIP revisions for certain source categories that take technological limitations into
account and provide that otherwise applicable emission limitations do not apply during
narrowly defined startup and shutdown periods. Such SIP revisions must (1) be limited
to "specific, narrowly-defined source categories using specific control strategies," (2)
show that use of the control strategy is "technologically infeasible during startup or shut-
down," (3) ensure that operation in startup or shutdown modes are minimized to the
maximum extent practicable, (4) analyze potential worst-case emissions during exempt
periods, (5) take all possible steps to minimize the impact on ambient air quality, (6)
require that the facility be operated at all times in a manner consistent with good practice
for minimizing emissions and that best efforts have been used regarding planning, design,
and operating procedures to meet the otherwise applicable emission limitation, and (7)
require the owner or operator to document actions during startup and shutdown periods in
"properly signed, contemporaneous operating logs, or other relevant evidence." EPA
1999 Policy, Attachment at 6.
In December 2001, EPA issued a memorandum clarifying that its 1999 Policy:
was not intended to alter the status of any existing malfunction, startup or
shutdown provision in a SIP that has been approved by EPA. Similarly,
the Guidance was not intended to affect existing permit terms or condi-
tions regarding malfunctions, startups, and shutdowns that reflect ap-
proved SIP provisions, including opacity provisions, or to alter the emer-
gency defense provisions at 40 C.F.R. §70.6(g). Existing SIP rules and 40
C.F.R. §70.6(g) may only be changed through established rulemaking pro-
cedures and existing permit terms may only be changed through estab-
lished permitting processes. . . . [I]t is in the context of future rulemaking
actions, such as the SIP approval process, that EPA will consider the
Guidance and the statutory principles on which the Guidance is based.
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Content Issues
Startup, Shutdown, and Malfunction
Memorandum from Eric Schaeffer, Director Office of Regulatory Enforcement, "Re-
Issuance of Clarification - State Implementation Plans (SIPs): Policy Regarding Excess
Emissions During Malfunction, Startup, and Shutdown (Dec. 5, 2001).
National Emission Standards for Hazardous Air Pollutants'. Section 112 of the CAA
requires EPA to set initial emission standards for hazardous air pollutants that "require
the maximum degree of reduction in emissions of the hazardous air pollutants ... achiev-
able for new or existing sources" taking into consideration costs and any non-air quality
health and environmental impacts and energy requirements. 42 U.S.C. § 7412(d)(2).
Once initial standards are set, EPA is required to review such standards within eight years
of promulgation to ensure they provide an ample margin of safety to protect public
health. Id. § 7412(f)(2).
The Act requires that numerical standards be set whenever it is feasible to promulgate
and enforce such standards. Id. § 7412(h)(4). If it is not feasible, EPA may promulgate a
"design, equipment, work practice, or operational standard," or some combination
thereof, in lieu of a numerical standard. Id. § 7412(h)(1).
EPA's regulations governing NESHAPS State that sources must operate during startup,
shutdown and malfunction "in a manner consistent with safety and good air pollution
control practices for minimizing emissions" and that "the general duty to minimize emis-
sions during a period of startup, shutdown, or malfunction does not require the owner or
operator to achieve emission levels that would be required by the applicable standard at
other times if this is not consistent with safety and good air pollution control practices."
40 C.F.R. § 63. 6(e)(l)(i). The rules require sources to develop a startup, shutdown,
malfunction plan and to operate the source in compliance with that plan during startups,
shutdowns and malfunctions. Id..§ 63.6(e)(3).
New Source Performance Standards (NSPS): Section 111 of the CAA requires EPA to
set standards of performance for new stationary sources that "reflect the degree of emis-
sion limitation achievable through the application of the best system of emission reduc-
tion which (taking into account the cost of achieving such reduction and any nonair
quality health and environmental impact and energy requirements) the Administrator
determines has been adequately demonstrated." 42 U.S.C. § 7411(a)(1). If it is not
feasible to prescribe or enforce a standard or performance, EPA may instead promulgate
a "design, equipment, work practice or operational standard, or combination thereof." Id.
§ 7411(h).
EPA's regulations governing NSPS require that sources conduct "performance tests"
under prescribed representative conditions. The regulations also provide that "operations
during periods of startup, shutdown, and malfunction shall not constitute representative
conditions for the purpose of a performance test nor shall emissions in excess of the level
of the applicable emission limit during periods of startup, shutdown, and malfunction be
considered a violation of the applicable emission limit unless otherwise specified in the
applicable standard." 40 C.F.R. § 60.8(c). Sources using continuous emission monitor-
ing systems still must report "excess emissions" (as defined in the individual subpart) that
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occur during SSM periods. Id. § 60.7(c). Because such NSPS "excess emissions" reports
may include data for periods during which emission limitations do not apply, it should be
noted that the term is used differently in the NSPS than under EPA's SIP Policy. Such
monitoring data may be used to determine whether the source is in compliance with the
"general duty" to maintain and operate any affected facility including associated air
pollution control equipment "in a manner consistent with good air pollution control
practice for minimizing emissions," which applies at all times, including during SSM
periods. Id. § 60.11(d).
Summary of Comments Received
The majority of comments received were from environmental group representatives who
felt that inclusion of SSM provisions or defenses in permits undermined the ability of
Title V permits to assure compliance. The comments went both to the existence of such
provisions in underlying rules and to the manner in which the provisions are incorporated
(or not incorporated) into permits.
With respect to the existence of SSM provisions, several commenters objected to issu-
ance of permits with SSM provisions that are not consistent with EPA's 1999 policy on
future SIP approvals. With respect to incorporation of SSM provisions and the Part 70
"emergency defense," several commenters asserted that permits often are not clear re-
garding the applicability of such provisions or defenses to specific permit terms or condi-
tions. For example, permits provide an emergency defense for technology-based stan-
dards, but many fail to identify which of the standards in the permit are technology-
based. In other cases, existing SSM provisions are not reflected in the permit at all, or are
incorporated through SSM plans that are not part of the permit. These commenters gen-
erally suggested that sources be prohibited from relying on SSM provisions or defenses
that are not spelled out in the permit, even if they exist in underlying rule of permit.
Finally, several commenters asserted that permits do not adequately define the scope of
SSM provisions (e.g., clearly define what constitutes SSM), or place the burden on the
source to prove that the provision applies to a specific event (e.g., prove that there was a
malfunction).
A more complete summary of comments received is provided as an attachment.
Task Force Discussion
Although the Task Force identified a number of potential discussion items related to SSM
provisions and the Part 70 emergency defense, the Task Force focused on the degree to
which the Title V permitting process could or should be used to provide more specificity
to existing SSM provisions. Task Force members' view on that issue generally mirrored
their view on whether permitting officials have authority to alter existing requirements
(e.g., requirements in SIPs, NSPS, MACT, PSD/NSR permits) in the Title V permitting
process.
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Those who felt that Title V requires a permitting authority to include additional require-
ments if necessary to assure compliance supported development of new permit terms to
define how any SSM provisions would apply to specific sources. Those Task Force
members pointed out that most SSM provisions rely on very general definitions or spec-
ify only best practices. These Task Force members believe that provisions are not practi-
cally enforceable because without specificity as to what constitutes a startup, shutdown or
malfunction, it is difficult to determine whether an SSM provision applies in a given
situation or whether the source violated the emission limit. One Task Force member
pointed out that the definitions may even clearly indicate when a startup, shutdown, or
malfunction period begins or ends.
Those who felt that Title V does not provide that authority believed that while sources
could agree to comply with more precise definitions, permitting officials could not im-
pose new or different definitions through Title V without changing the underlying re-
quirement. Those Task Force members pointed out that because a determination of what
constitutes SSM often is very event specific, any attempt to define SSM up front in more
detail could result in elimination of the exception for legitimate SSM events that were not
anticipated in the permitting process, thus resulting in a more stringent emission standard.
Given the differing views on the existence of authority, the Task Force's discussion
generally focused on practical and policy considerations associated with using Title V
permits to define SSM. Several Task Force members strongly believed that providing
more specific definitions of SSM would be very difficult as a practical matter and that
was the reason why the existing definitions are so general (i.e., if they could have been
defined more precisely they would have been). One Task Force member stated that
permitting officials must already have developed standards by which they review and
evaluate SSM reports to determine whether the exceptions apply, and that those standards
could be verbalized in permits. The Task Force did not agree on whether the standards
currently used for such review were sufficiently objective to incorporate into permits.
Several Task Force members noted that startup and shutdown events are different from
malfunction events in that they can be planned better and that more is known about emis-
sions during those events, which would allow a permitting authority to include these
emission in a permit. The Task Force briefly discussed the degree to which startup and
shutdown might be defined for specific categories of sources, like combustion turbines
and boilers, but did not reach consensus on whether one definition would be sufficient for
all sources in a category or even whether a precise definition (e.g., "x" number of hours)
could be developed that would cover all possible startup scenarios for a single source.
One Task Force member noted that the Texas Commission on Environmental Quality has
historically refused to define SSM activities by permit, but is moving towards permitting
such events because it is developing a rule that may remove existing affirmative defenses.
The Task Force member believed that the process would be time-consuming. Another
Task Force member noted that attempts by other States to define events like startup and
shutdown in preconstruction permits was now resulting in multiple requests for permit
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revisions because the sources were discovering that the definitions were too narrow and
they were unable to comply with the terms all of the time.
One Task Force member suggested that better explanations by permitting officials of the
purpose of SSM provisions, and better explanations as to how they apply in the context of
specific rules might help address some of the public's concerns.
The Task Force also briefly discussed the possibility of providing more precise require-
ments for a source to respond to events that it has reported as malfunctions. One Industry
Task Force member pointed out that it is difficult to define the best course of action to
address problems that may not be anticipated. That member noted that same issue has
made the Part 63 SSM plan provisions controversial
Given the differing perspectives, the Task Force did not reach consensus on many rec-
ommendations. One recommendation that did get support from all members was that
Title V permits should be clear about which emission limits are subject to the Part 70
emergency defense (see Recommendation #3). The Task Force did not agree, however,
on how broadly that defense should be applied under EPA's rules (see Recommendation
#4).
During discussion many Task Force members voting in favor of Recommendation #3
stated that they did not believe that a failure to be clear about applicability of the defense
would prevent the source from asserting it, only that permit writers should strive to avoid
such disputes by reflecting applicability in the permit. The Task Force similarly agreed
that to prevent disputes, a permitting authority should draft permits to include all avail-
able SSM provisions and affirmative defenses and make their applicability clear. How-
ever, because the Task Force members did not agree on the consequences of failure to
reflect such provisions in the permit, the Task Force was not able to agree on the wording
of a specific recommendation.
Two recommendations (Recommendations #1 and #5) that permits be used to provide
more specificity for vague terms got strong support from environmental group Task
Force members, but did not get the support of the majority of the Task Force. One rec-
ommendation that such issues be addressed only through rulemaking (Recommenda-
tion #2) did receive support from the majority of the Task Force, but did not receive the
support of any environmental group Task Force members.
State Implementation Plan (SIP) related issues were discussed by the Task Force but did
not result in specific recommendations. One Task Force member explained that emis-
sions inventories used to develop SIPs often do not include the excess emissions that
result from SSM. Emissions inventories often are based on steady-State operation and do
not account for higher emissions that occur when operating outside those steady-State
conditions. Since SIP development work is done using these emissions inventories,
emissions of SSM are generally not included in the air quality analyses that are used by
permitting authorities to determine how to attain or maintain compliance with the na-
tional ambient air quality standards and other air quality goals. He was concerned that
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this could result in incomplete and/or inaccurate assessments of air quality impacts.
Although several Task Force members agreed this was an issue, the Task Force generally
agreed that it was a SIP development/emissions inventory issue and not a Title V issue.
Recommendations
Recommendation #1
Where the applicable requirements use vague terms (e.g., "minimize emissions during
SSM events"), the Title V permit should include conditions sufficient to verify how that
applies to the source.
In Favor (8)*: Palzer, Powell, Owen, Keever, Raettig, Sliwinski, Kaderly, Van Frank
Opposed (10)*: Paul, Wood, Hodanbosi, Morehouse, Hagle, Freeman, Schwartz, van der
Vaart, Golden, Broome
Abstentions:
Clarifications:
*Note: Number in parentheses () is the total number of Task Force members voting for this position.
Recommendation #2
To the extent EPA or a State believes a rule inadequately describes the applicability of
SSM provisions, the rule should be revised rather than addressing this in case-by-case
permit proceedings.
In Favor (11): Broome, Paul, Hodanbosi, Wood, Morehouse, Hagle, Freeman,
Schwartz, van der Vaart, Kaderly, Golden
Opposed (7): Sliwinski, Palzer, Powell, Owen, Keever, Raettig, Van Frank
Abstentions:
Clarifications: Sliwinski opposes based on "rather than." Kaderly joins in SI i win ski's
clarification.
Recommendation #3
Title V permits should be clear as to which limits are subject to the part 70 emergency
defense (e.g., under the current rule, technology based limits).
In Favor (.18): Broome, Freeman, Hagle, Hodanbosi, Keever, Morehouse, Owen, Palzer,
Paul, Powell, Raettig, Schwartz, Sliwinski, van der Vaart, Wood, Kaderly, Golden,
Van Frank
Opposed:
Abstentions:
Clarifications: Freeman and Broome clarify that a permit's failure to be clear on
applicability would not prevent a source from asserting the defense.
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Recommendation #4
The emergency defense should cover all limits in the Title V permit that are based on
being achieved through the application of technology.
In Favor (9): Broome, Paul, Wood, Freeman, van der Vaart, Hodanbosi, Sliwinski,
Morehouse, Golden
Opposed (5): Schwartz, Powell, Keever, Palzer, Van Frank
Abstentions (4): Hagle, Raettig, Owen, Kaderly
Clarifications: Schwartz opposes in that he views this as a new substantive requirement
which Title V was not to create.
Recommendation #5
Where a permit includes an affirmative defense for startups and shutdowns, or the emis-
sion limits do not apply during those events, the permit should define what constitutes
startup and shutdown if it is anticipated that emissions during such events would exceed
the limits in the relevant standard.
In Favor (6): Powell, Owen, Keever, Raettig, Van Frank, Palzer
Opposed (12): van der Vaart, Hagle, Broome, Sliwinski, Paul, Wood, Hodanbosi,
Morehouse, Freeman, Schwartz, Kaderly, Golden
Abstentions:
Clarifications: Schwartz, Sliwinski, and Kaderly clarify that it should be done where
practical.
Related Topics: Monitoring, Definitiveness Of Permit, New Substantive Require-
ments/Definitiveness Of Permit
Attachment
Oral Testimony
Environmental Law and Policy Center: "And my personal experience was with the start-
up, shutdown, malfunction provisions, which at the State level here in Illinois are not
consistent with EPA guidance, and they are not consistent with the goals of the program.
The permit must be consistent with EPA's guidance. I think that's basic. EPA writes this
guidance for a reason. There are lengthy memos laying out the requirements for start-up,
shutdown, and malfunction, and then what has happened in Illinois is a very boiled-down,
limited provision instead. ...
In addition, consistent with this provision, the State has issued draft Title V permits that
are also explicitly contrary to the EPA guidance. Now, I realize I'm getting into the
realm of the requirements that the Title V permit be consistent with the State
implementation plan, which it is, and the requirement that the Title V permits be
consistent with EPA regulations and guidance. And again, this is where the problem lies.
We've ended up with a State implementation plan that's not consistent with EPA
objectives, and as a commenter on a permit, I then get told, "Well, but this is consistent
with our SIP." And I'm saying, looking at EPA guidance, saying, "That can't be possible
because this SIP shouldn't be allowed." So I am left without recourse, even though I've
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identified something that is a problem. So, allow me, then, to comment on these permits
that we then saw."
ELPC also gave an example of a Title V permit that included "a condition that authorized
continued operation in violation of applicable requirements, just on its face inconsistent
with EPA guidance."
New Jersey Dept. of Env. Protection: "Startup, shutdown, malfunctions, we think the
reporting of these is very important, and we include our affirmative defense reporting as a
requirement in our operating permit. This involves reporting any exceedances during
these situations and what actions are taken to address those exceedances and prevent or
minimize them in the future."
Reed Zars: "Another sort of point on trying to make the Title V permits a bit more
clearer or open or available to a lay people is to explain in the permit why, for example,
an emergency defense may be available. As I understand it, emergency defense is only
available against a technology-based limit, but often you'll just see a Title V permit that
just has emergency and it lists the statutory and regulatory language, and does it apply,
does it not, to which emission in here, which ones are technology based, which ones are
SIP or health based or ambient based? You don't know. There's no description. There
isn't even a statement in there that says this only applies to the technology base or the
technology based emission points on this facility are X, Y, and Z, to which this defense
applies. ...
for example, let's look at the NSPS. Well, the startup is defined as the putting into
operation of an affected facility, I think, or something like that, and even with that very
limited definition, one could through the Title V program require a source to describe
what it was doing during that time and demonstrate why all of that period — and I agree
with the woman before me where you can get hours or you can get days of alleged
startup. Why all that time is necessary to put that facility into operation? Same thing
with a shutdown. You have a very dry definition, you know, the cessation of the
operation of an affected facility. I think that's almost verbatim out of the NSPS. Well,
explain all of the times — all of the periods of time and why it was necessary to cease the
operation of that facility. That would — not messing around with anything, I'm not
putting a time limit on it, not rewriting any regulation, I'm just asking you to fully justify
your characterization of that startup or that shutdown. I think that would be very helpful.
For malfunction is probably the — we'd have a real mine field here or a gold mine
because there are requirements, qualitative requirements to establish what a malfunction
is, and you shall clearly State and provide the reasons for or justification why this is a
malfunction, why it's out of your control, did it meet all the elements of being an
unanticipated event. So it meets all of the requirements of the malfunction defense. That
would be a huge boost forward. So those are sort of off the top of my head ways in
which I think within your Title V purview and within the law you could still get much
better report and much better ability of citizens to analyze the validity of those claims. ...
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The previous speaker talked about exceptions and startup, shutdown, malfunction. I
agree with her in part and I also agree with the questioners there that part of your problem
is the underlying regulation. There are many that are, I think, very outdated now but do
set out almost a blanket startup, shutdown, malfunction. I have been in involved in
litigation over those for years. I think what is very important that all Title V permits
should have, and I haven't seen one yet that says this clearly, to the extent that there are
exceptions, they are listed in the permit. So it's not just the limits, but the exceptions to
those permits, and then a very clear statement that us lawyers are used to seeing about no
other exception shall be allowed or implied. That's always the way I interpreted Title V
permits, but every time you go out and push on enforcing one of these permits, with no
exception I would say over the last five years that I have been enforcing these, the
company will come back and claim others that were supposedly intended or were
somehow found another underlying regulation. And I think that's just sort of hide the ball
game that the Title V program was meant to eliminate. And it happened to a large
degree, and I've never found a Title V permit I could say, look, no, no, you may have
startup, shutdown, malfunction, but you don't have load change or you don't have bad
fuel quality or high ash hopper or some other excuse, I'm not going to take it, it's not
there. So I think that would really help on the citizen enforcement side."
Mid-Atlantic Environmental Law Center: "Language in the Title V permits is often vague
and unclear on what's required to be a malfunction or an upset. Any lawyer representing a
facility, if you try and say there's a violation, they'll say, there's an upset or there's a mal-
function. It would be good — this is an area that you should really take a look at, making an
improvement, putting the burden, making clear that the burden is on the facility to demon-
strate that. Whether you actually allow a malfunction or an upset, you know, especially
when you have a dozen of these events happening over months and months, after a period of
time, there's a problem there. It's not just a one-time occurrence."
George Hays: "What I'm saying is that if you have a provision in a Title V permit that —
and there are alleged defenses that come with that — then those defenses ought to be
specified in the permit. Otherwise — because sources have the opportunity to look at
those permits and make a claim. For instance, if they assert there's a particular type of
malfunction defense or whatever, there's a draft permit that's issued. They have the
opportunity to look at that. And if they don't stand up and say, "Hey, there's a malfunc-
tion defense that you forgot to include in here," and then the permit goes final; then after
that they want to assert that malfunction defense, I think that's a violation of the permit-
ting scheme."
California Communities Against Toxics: "I think that the lack of clarity — again, it
eviscerates the enforceability of the Title V permit when a facility could just pull out its
startup, shutdown and malfunction plan and say, well, see here, it was included by
reference in the Title V permit and we're in compliance with it. ... when the startup,
shutdown, malfunction plans are just referenced in the Title V permit, it essentially
eviscerates the public's ability or the citizens surrounding the facility's ability to
effectively enforce against a facility that is out of compliance with the plan or out of
compliance with what should be a reasonable plan. ...
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Often the plans are just reference in the Title V permit. They're not even included in the
permit, much less is the public made aware of the conditions of the startup, shutdown and
malfunction plan. It will just simply say there's a plan referred to it and that the require-
ments of that plan are included in the Title V permit. And then there was also an issue
earlier in the Bush administration where you were able to make changes to the plan with-
out public comment, and that obviously is not — we're going to rely upon a startup, shut-
down and malfunction plan to show that we're in continued compliance with the Clean
Air Act, but you can make changes to the plan anytime you want without oversight by the
public. So that's all very problematic."
Don Van der Vaart: "But where this really plays out now, and you're absolutely right, is
in Title V, because we have a certain number of companies, one utility, who says, "We
don't have excess emissions. They're malfunctions." And so in other words they've used
it to define their compliance status. And I guess my point is, is that even in those States
that have SIPs that you think are inconsistent with these guidance memos, I think you've
looked to find that they're not even following the rules themselves. In other words,
they're not even going through the steps to get to the point they can certify compliance
because I've got a malfunction. So the guidance isn't all that terrible. I know you've got
this issue of the violation versus just the enforcement exemption, but you also need to
look at I don't think they're even following the rules that are there."
Kelly Haragan: "While Illinois's provision is vague — that is a huge problem — there is
other States where it's flat-out clearly illegal, too. I think to just realize there is this big
problem and say, "Well, we've discovered it through Title V. It's been brought to the
forefront. It's not a Title V issue. It's a SIP issue," that defeats the purpose of Title V.
Title V is supposed to raise these issues so we can address them, not to just push them to
the sideline. So I think it is a really important issue, and thanks for raising it."
MR. SCHWARTZ: That was going to be a follow-up question. If you thought it would
be helpful if the permit at least specified that the burden has to be carried by the facility,
and I think you just answered that yes, that would be helpful.
MR. UKEILEY: Yes
Galveston-Houston Association for Smog Prevention: "First is the lack of correct or
consistent rules governing startup, shutdown, upset and maintenance processes are very
relevant to Title V because they help really set the framework in which compliance is
determined and emission reports are generated. I spend an awful lot of time looking at
emissions inventory data and annual emission reports, various things like that from
companies. And the definitions and the presence or absence of rules governing those
particular procedures are critical to how one makes sense of annual emission reports and
emission statements."
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Written comments
Galveston-Houston Association for Smog Prevention: expressed concern that routine
startup, shutdown, and maintenance emissions are not included in air pollution permits in
Texas. It appears that the policies of the permitting agency, as noted in guidance docu-
ments available on the Texas Commission on Environmental Quality's website, effec-
tively authorize an unknown and unquantifiable amount of air pollution during these
routine operations. (0057 p. 8)
New Jersey: commented that, for exceedances due to start up/shutdown or malfunctions,
the permit should require reporting, including a description of the exceedance or event,
and actions taken to correct the problem and prevent recurrence. New Jersey noted that
as sources are better controlled, emissions associated with start up, shutdown, and mal-
functions may represent the majority of emissions so reporting of the incident and the
requirement to minimize such incidents are increasingly important. (0017, p.4)
The Portland Cement Association suggested that startup-shutdown reporting require-
ments distinguish between units for which startup-shutdown is routine and those for
which the process is more significant and anomalous. The reporting requirements for
routine startups and shutdowns should be less stringent. (0037, p.2)
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4.9 Topic: Compliance Schedules
Issue/Observation Description
What this paper addresses: This paper discusses concerns raised by commenters and
Task Force members regarding what constitutes a "determination of noncompliance"
sufficient to require inclusion of a compliance schedule in a permit. It also addresses
questions raised regarding permitting authorities' obligation to investigate and resolve
allegations of noncompliance before it issues a Title V permit.
Legal Requirements: Title V requires a "responsible official" to include in a source's
permit application a compliance plan and certification of the source's compliance status
with respect to applicable requirements, and requires permitting authorities to include a
schedule of compliance in the final permit for any applicable requirement with which the
source will not be in compliance at permit issuance.
Specifically, under CAA § 503(b)(1), each permit application must include:
a compliance plan describing how the source will comply with all applica-
ble requirements under this Act. The compliance plan shall include a
schedule of compliance, and a schedule under which the permittee will
submit progress reports to the permitting authority no less frequently than
every 6 months.
Each "compliance plan" and "application for a permit" must be "signed by a responsible
official who shall certify the accuracy of the information submitted." Id. § 503(b)(3).
CAA § 504(a) further requires that each permit include, among other things, "enforceable
emission limitations and standards, [and] a schedule of compliance." CAA § 501(3)
defines "schedule of compliance" as "a schedule of remedial measures, including an
enforceable sequence of actions or operations, leading to compliance with an applicable
implementation plan, emission standard, emission limitation, or emission prohibition."
At issuance, Title V permits must include all applicable requirements. For applicable
requirements promulgated after issuance of a permit, permitting authorities may delay
inclusion of new applicable requirements until permit renewal if the permit has less than
three years left to renewal. Id. § 502(b)(9). At issuance, a permitting authority may (but
is not required to) make a determination that some requirements are "not applicable." Id.
§ 504(f). In such case, the permit must include this determination or a "concise summary
thereof." Id.
EPA's implementing regulations provide that if a source is in compliance with an appli-
cable requirement, the permit application must include a statement that the source will
continue to comply. 40 C.F.R. §70.5(c)(8). If the source is not in compliance with a
particular requirement, the source must provide in its permit application a description of
how it will come into compliance, and a compliance schedule that includes, among other
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things, "a schedule of remedial measures, including an enforceable sequence of actions
with milestones, leading to compliance." Id. § 70.5(c)(8). The final permit must include
a schedule of compliance "consistent with" the source's compliance plan. Id. §
70.6(c)(3). (The text of EPA's regulations are provided in the attachment to this paper.)
EPA's regulations also make clear that a permit application "may not omit information
needed to determine the applicability of, or to impose, any applicable requirement. . .," §
70.8(c), and must contain a certification by a responsible official of "truth, accuracy, and
completeness . . . based on information and belief formed after reasonable inquiry." Id. §
70.8(d).
In anticipation of the burdens associated with certifying compliance during initial permit-
ting for sources that may have faced hundreds of applicability questions during their
years of operation, EPA issued guidance making clear that "[cjompanies are not Feder-
ally required to reconsider previous applicability determinations [such as assessment of
compliance with NSR permitting requirements] as part of their inquiry in preparing part
70 permit applications." See White Paper for Streamlined Development of Part 70 Per-
mit Applications (July 10, 1995) at 25. With respect to enforcement, EPA's regulations
make clear that without a determination of "non-applicability" expressed in a permit, no
permit shield is granted for failure to comply with a requirement following permit issu-
ance. 40 C.F.R. § 70.6(f)(2). And, no permit term can shield a source from liability for a
violation that occurred prior to or at the time of permit issuance. § 70.6(f)(3)(ii).
In the face of the statutory and regulatory provisions, questions have arisen in the imple-
mentation of Title V regarding the extent to which permitting authorities are required to
make final applicability determinations in the Title V permit proceeding, particularly with
respect to the application of new source review (NSR) permitting requirements to activi-
ties that occurred at sources prior to (and in some cases decades prior to) submission of
the permit application. Questions also have arisen regarding the extent to which permit-
ting authorities are required to include compliance schedules to address allegations of
noncompliance (including Notices of violation or NOVs) that are disputed by the source
or otherwise have not been administratively or judicially resolved.
Only one court has been asked to address these issues. In that case, which arose in the
context of appeal of EPA's denial of petitions by the New York Public Interest Group
(NYPIRG) for objection to Title V permits issued to two New York power plants,
NYPIRG argued that a permitting authority is required to include a compliance schedule
in a permit if it finds that the source is violating a requirement as of the date of permit
issuance, e.g., by issuing an NOV, and that including a compliance schedule in a permit
does not prevent the State agency from also pursuing a citizen suit against the source to
seek penalties for the source's violations. The United States Court of Appeals for the
Second Circuit held that where a State had issued an NOV for alleged noncompliance
with PSD permitting requirements, and followed up that NOV with the filing of a com-
plaint in United States District Court, the petitioners had made "a sufficient demonstra-
tion to the Administrator of non-compliance for purposes of the Title V review process."
See New York Public Interest Research Group, Inc. v. Johnson, 427 F.3d 172 (2nd Cir.
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2005). The Court did not determine whether a compliance schedule was required "when
the permitting authority has not yet determined those limits [to be] applicable. . . ."
In that case, EPA and New York argued that though they have the authority to address
compliance problems by including a compliance schedule in a Title V permit, they are
not required to do so. They argued that CAA § 113 (and similar SIP provisions) provides
them with discretion to determine the best forum in which to resolve compliance dis-
putes. Their position was that outstanding NOVs do not require the agencies to include a
compliance schedule in permits because they are a first step in the enforcement process
and do not themselves establish noncompliance.
In addition, the source Intervenor (and an industry group seeking amici status) argued
that requiring inclusion of a compliance schedule to address disputed allegations of non-
compliance violates the source owner/operator's rights to due process, including an
evidentiary hearing and judicial review prior to imposition of remedial measures. It
argued that, absent the source's certification of noncompliance or concession of applica-
bility, permitting authorities may not include a compliance schedule in permits until a
final decision resolving the allegations of noncompliance or applicability has been
reached in formal judicial or administrative proceedings.
In its written decision, the Court did not mention or distinguish the case law cited by
EPA, the source intervenor, and the permitting authority holding that NOVs are not final
determinations. A petition for rehearing en banc by the source intervenor on that and
other issues was still outstanding when this report was being finalized. The Court also
did not address the content of the required compliance schedule
Summary of Comments
Several citizen commenters and a representative from a State attorney general's office
complained that permitting authorities were not including compliance schedules in per-
mits to address alleged repeated noncompliance, or alleged noncompliance that occurred
between submission of the permit application and issuance of the permit. Several com-
menters stated that sources never certify noncompliance and that permitting authorities
tended to take sources' certifications at face value without any investigation. Several
commenters suggested that failure to include a compliance schedule might constitute a
determination of compliance that would shield a source from traditional enforcement
mechanisms.
One industry group commenter disagreed with the suggestion that States have legal
authority to impose compliance schedules to address disputed allegations of noncompli-
ance or applicability, and with the policy implications of doing so. Specifically, the
group stated that, absent a certification of noncompliance, permitting authorities may not
include a compliance schedule in permits until a final decision resolving the allegations
of noncompliance has been reached in a formal judicial or administrative proceedings
allowing a source the right to appeal the determination. The commenter also stated that
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including disputed compliance schedules would delay Title V permits, subject them to
appeal, and impede the program
Several permitting authorities stated that they included compliance schedules for non-
compliance, but that where allegations were disputed they referred the issue to their
enforcement office for resolution.
A more detailed summary of comments is provided in the attachment.
Task Force Discussion
The Task Force discussion began with one Task Force member proposing a recommenda-
tion that would require permitting authorities to evaluate compliance when they receive
permit applications and develop compliance schedules to remedy any problems. Industry
Task Force representatives responded that this recommendation raises due process issues
because the permitting authority would be making unilateral determinations about com-
pliance without allowing a source the opportunity to defend itself. According to these
members, the permitting authority does not have this ability outside the Title V process
and Title V does not vest the permitting authorities with that power.
An environmental group representative noted that a source has the ability to challenge a
permit's compliance schedule and have that part of the permit stayed, thereby affording
the source due process. Environmental group representatives also asserted that nothing in
Title V prohibits a State from staying a compliance schedule while it is being challenged,
and that if a State does not provide for such a stay, any due process concern arises out of
the State's procedures, not out of Title V's compliance schedule requirement. That rep-
resentative also stated that a compliance schedule is not "enforcement" because it does
not apply penalties for past violations, but instead assures that future source operations
will comply with all applicable requirements.
Industry representatives disagreed, stating that not every State provides a source with a
process to stay a permit condition and, in any event, that differences in the legal standard
for review and burden of proof in the permit appeals process prevent it from satisfying
due process requirements. Industry representatives also pointed out that even without
imposition of penalties for alleged past violations, a compliance schedule could impose
significant costs (e.g., for installation of new controls) or subject the source to penalties
for failure to meet the schedule, before the issue of applicability or noncompliance had
been adjudicated.
The discussion then turned to the type of information a State should or must review to
determine whether to include a compliance schedule in the permit. Environmental group
members stated that when a permitting authority issues a Title V permit, it is responsible
for determining which requirements apply to a source and whether the source is in com-
pliance with those requirements. To fulfill that duty, environmental group members
stated that a permitting authority must consider and address any evidence that a source is
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operating in violation of an applicable requirement, including citizen complaints, devia-
tion reports, and Notices of Violation as well as any settlement and consent decrees.
Industry and State agency members disagreed, again stating that permitting authorities
would be making unilateral enforcement decisions. In addition, one industry Task Force
member stated that deviation reports and excess emission reports do not necessarily
demonstrate noncompliance and permitting authorities should educate the public about
the meaning of such reports.
The discussion then turned to the different categories of compliance disputes. Industry
Task Force members noted that applicability determinations for a particular source are
often highly contentious and litigation involving these determinations can take years.
Several Task Force members stated that it is inappropriate for permitting authorities to
make a finding of noncompliance based on ongoing litigation regarding applicability
determinations. With respect to the other category of potential noncompliance, alleged
violations of applicable requirements, industry Task Force members reiterated their
position that a State may not require a compliance schedule without a final determination
of noncompliance by an agency or court and that Notices of Violation are not such de-
terminations and do not afford sources with an opportunity to challenge their content.
The Task Force discussed the current regulatory structure. The Task Force members
generally agreed that the current regulations did not require a change—though, as dis-
cussed above, Task Force members did not agree on the meaning of those regulations.
The Task Force also discussed logistical issues raised by compliance schedules. A State
agency member noted that when a permitting authority includes a compliance schedule in
a permit, it must document the background and justifications for including the compli-
ance schedule, which can take as much effort and time as bringing a court action against
the source. Because of the work and time required, permitting authorities sometimes
delay issuing the permit to allow the source to resolve the problems instead of issuing a
permit with a compliance schedule.
Although the topic of compliance schedules generated extensive discussion, the Task
Force concluded that the topic raised legal issues that could not be readily resolved by the
Task Force. Thus, the Task Force does not offer any recommendations on this issue.
Related Topics: Statement of Basis, Compliance Certifications
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Attachment: Text of EPA Regulations
§ 70.5(c)(8) The State program under this part shall provide for a standard application
form or forms. . . .An application may not omit information needed to determine the
applicability of, or to impose, any applicable requirement, or to evaluate the fee amount
required . . . The permitting authority may use discretion in developing application forms
that best meet program needs and administrative efficiency. The forms and attachments
chosen, however, shall include the elements specified below:
(8) A compliance plan for all Part 70 sources that contains all the follow-
ing:
(i) A description of the compliance status of the source with respect to all
applicable requirements.
(ii) A description as follows:
(A) For applicable requirements with which the source is in compliance, a
statement that the source will continue to comply with such requirements.
(B) For applicable requirements that will become effective during the
permit term, a statement that the source will meet such requirements on a
timely basis.
(C) For requirements for which the source is not in compliance at the time
or permit issuance, a narrative description of how the source will achieve
compliance with such requirements.
(iii) A compliance schedule as follows:
(A) For applicable requirements with which the source is in compliance, a
statement that the source will continue to comply with such requirements.
(B) For applicable requirements that will become effective during the
permit term, a statement that the source will meet such requirements on a
timely basis. A statement that the source will meet in a timely manner ap-
plicable requirements that become effective during the permit term shall
satisfy this provision, unless a more detailed schedule is expressly re-
quired by the applicable requirement.
(C) A schedule of compliance for sources that are not in compliance with
all applicable requirements at the time of permit issuance. Such a sched-
ule shall include a schedule of remedial measures, including an enforce-
able sequence of actions with milestones, leading to compliance with any
applicable requirements for which the source will be in noncompliance at
the time of permit issuance. This compliance schedule shall resemble and
be at least as stringent as that contained in any judicial consent decree or
administrative order to which the source is subject. Any such schedule of
compliance shall be supplemental to, and shall not sanction noncompli-
ance with, the applicable requirements on which it is based.
(iv) A schedule for submission of certified progress reports no less fre-
quently than every 6 months for sources required to have a schedule of
compliance to remedy a violation.
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§70.6(c) Compliance requirements. All part 70 permits shall contain the following ele-
ments with respect to compliance:
(3) A schedule of compliance consistent with §70.5(c)(8) of this part.
(4) Progress reports consistent with the applicable schedule of compliance and
§70.5(c)(8) of this part to be submitted at least semiannually, or at a more frequent period
if specified in the applicable requirement or by the permitting authority. Such progress
reports shall contain the following:
(i) Dates for achieving the activities, milestones, or compliance required in the schedule
of compliance, and dates when such activities, milestones or compliance were achieved;
and
(ii) An explanation of why any dates in the schedule of compliance were not or will not
be met, and any preventive or corrective measures adopted. . . .
Attachment: Testimony and Comments Received
The following testimony was received from the public either in direct testimony or in
response to questions from the Task Force.
MR. WELCH: Another area that I've seen also has to do with compliance. We see that
often times there are facilities that seem to be in violation, repeatedly. They may have
ongoing violations, yet when it comes time to issue the permit, there's no requirement to
address the problem of the facility. The facility may have put in an application five years
before, and certified that we are in compliance with all applicable requirements in 1995.
When it comes to 2004, and it's time to put out a draft permit, they may have had viola-
tions that have happened in the interim, and it's difficult to address that. Often we will
raise the idea of here are several violations that have occurred. What's the facility doing
to correct this problem? And more times than not, there is no compliance schedule that's
put into the permit to address the problem. It's kind of left up to the company's good will
to fix the problem What Delaware has told us is that they do not want to issue a
permit to a facility that's in violation, and they deal with violations as an enforcement
matter, rather than a permitting matter. So I think my on the ground experience is that
often times the permit issuance is held up or delayed internally because of a violation
issue, and so the permit is not issued. Or, we have had permits that have been issued, but
recognize that there have been violations and the facility has agreed to develop a plan to
address the problem, but the plan hasn't been developed at the time the permit is issued,
or it's not made an enforceable requirement in part of the permit. We would object to
that. (L. Welch MAELC, Transcript 1-206)
HARLEY: I want to give you an example — and I'm going to come back to it a couple
times in my remarks — we reviewed the permit application that was put in by a large
industrial facility for its Title V permit, and the rote compliance certification was signed
by a responsible official. I went and I met with the group that I represented in that case,
and one of the women, I think she may actually be testifying this evening, Ellen Rendu-
lich from the Citizens Against Ruining the Environment group who lived on a bluff
overlooking the industrial facility said, "I don't know how this facility can be in compli-
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Compliance Schedules
ance because it's constantly putting out black smoke." And so we FOIA'ed for the re-
cords, and we got back the excess emission reports from this facility, and do you know
that consistently on a quarterly basis, like clockwork, ten days after the quarter they
would be submitting reports certified under penalties of perjury to the Illinois EPA detail-
ing hundreds of excess emissions from their facility. And yet somehow there was a
compliance certification in the application. The permit itself identified no outstanding
compliance issues. The only compliance issues that were addressed in the permit appli-
cation — in the draft permit were on a going-forward basis; no compliance schedule. And
this is — it's that juggernaut. It's that application macro, get the thing out the door, as
opposed to let's take a look to see if there are excess emission reports within this agency
that we should be considering, sitting in this agency that we should be considering in
determining whether or not we can issue an adequate Title V permit that includes a com-
pliance schedule that gets this facility on a road to actually being in compliance with
permit requirements. Over and over again in my dealings with citizen groups, I find that
they are the ones, through their hard work, who are asking these kinds of questions.
(Harley, Chicago, ELC, Transcript 2-271)
URBASZEWSKI: Ultimately we hope that the Title V process will result in compliance
schedules for the problems that we've identified, if we ever get an answer, and that even-
tually at the end of this process we'll get something that is a good permit that ensures that
all the provisions are being met and the public's health is being protected, which is what
the Title V permit is supposed to be. It's what it's supposed to do. (Urbaszewski, A.
Lung Assoc., Transcript 2-324)
NILLES: As I mentioned, the 22 coal-burning power plants in Illinois still don't have
their Title V permits. This is a particular concern, because six of them are either in or
surrounding Chicago. We know from a series of studies, Harvard study, that those are
causing direct, identifiable, quantifiable health effects today in Illinois. We also know
they are regularly violating their opacity standard. Of course, one of the critical parts of
Title V is that they include a compliance schedule to bring an end to ongoing violations.
In the absence of those Title V permits, there is no compliance schedule, and those facili-
ties for the last 18 months, which is what we have data for, continue to violate their opac-
ity standard, which obviously means more fine particle pollution in the greater Chicago
area. (B. Nilles, Sierra Club, 2-073)
ANN ALEXANDER: But we think that's important groundwork for the fact that the —
this comprehensive nature of Title V clearly encompasses, we believe, the NSR and
NSPS programs, which of course are applicable requirements under the Clean Air Act, to
the extent the facility has performed modifications that trigger those requirements. Not-
withstanding that, IEPA has specifically declined to address the NSR and NSPS require-
ments in the Title V permitting process. Essentially what they have done in these Title V
permits for the coal facilities that we've looked at is take at face value these applicants'
blanket representation that they were in compliance. The applicants said they were; that
was taken, essentially put in the permit with the statement that NSR and NSPS did not
comply. We believe that at minimum what the agency should have done in this context
rather than just taking the representations at face value should have been to first request a
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list of capital projects that were performed at the applicant's facilities under — during the
relevant time period; and secondly, request information concerning the cost and the
purpose and the timing of these projects, whatever is necessary to determine whether the
projects constituted major modifications that triggered the NSR and NSPS programs. It
has really been very clear since the 7th Circuit decision in WEPCO what type of informa-
tion is relevant to an NSR applicability determination. We believe there's no reason that
that information should not have been requested in the Title V permitting process, and a
lot of reasons that it should. Now, to the extent any major modifications were found to
have occurred based on such information that IEPA should have requested, the agency
should have required a compliance plan for meeting the NSR and NSPS more stringent
standards. (A. Alexander, Transcript 2-392)
Q: MR. SCHWARTZ: My question goes to one of your statements, the statement that
enforcement authorities are not as effective as Title V authorities to gather information
about NSR violations. I think I — if I fairly restated that. I've usually had a different
point of view on that. So I'm going to ask you to expand on that statement. But first I
want to make the observation that — and this does tend to be fact-specific, so generaliza-
tions are hazardous. But the problem I have seen is that when you — for instance, when
you want to put a compliance schedule in a Title V permit based on a perceived violation,
you essentially have to put your case together in the record to support that permit issu-
ance. And — because you're going to be defending that when they appeal it. And that
can take a lot of work as well. And it also tends to hold up issuance of the Title V permit.
And so what you're doing is you're holding up the issuance of this permit, which is going
to be a useful compliance tool for at least for other reasons, and you're holding it up to try
to resolve this violation. And so there's — you know, there's a cost benefit to be examined
there. But anyway, if you could expand on your thoughts about enforcement authorities
versus Title V authorities. (A. Schwartz, Transcript 2-397)
A: ANN ALEXANDER: Well, I mean, let me just say that my remarks about the effec-
tiveness are based on observations of what's been happening in Illinois and in Region 5,
which is that it just has not been smooth or efficient or effective to gather the necessary
information through 114. Whether or not that's universal or whether or not it has to be, I
think, you know, is arguable. That would certainly be open for discussion. I think what's
important to bring it back to is that this — this is the law. The law does require that all
applicable requirements be incorporated into the permit. And our concern beyond the
fact that that's the law and we need it — believe it needs to be complied with, is there is
emerging evidence or statements, I should say, in recent court decisions that it may even
be problematic if a compliance schedule has not been imposed in the context of Title V
permitting, if then enforcement is prosecuted independently. We believe that — what
really should happen is that these tracks should be going in tandem. I'm not suggesting
that, you know, the regions no longer send out 114 requests, I'm suggesting that this is
not sufficient and that both things should be happening. And yes, it may create some
delays, but we don't think that essentially these important compliance assurance require-
ments should be sacrificed on the altar of speed. I mean, notwithstanding our frustration
with the pace of this permitting, we think that that requirement is central enough that it
just has to happen. (Alexander, IL Attorney General, 2-397)
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Q: MS. BROOME: Okay. So let's — okay. So there's been no determination of non-
compliance. And without any formal determination of noncompliance, you would agree
that there's no basis for a compliance schedule; right? . . .
A: ANN ALEXANDER: There's no basis because they haven't looked for a basis. The
company said we're in compliance, and they said we believe you.
Q: MS. BROOME: Let's take your premise and assume that they were to put a compli-
ance schedule in the permit. Are you aware that permit terms are not stayed and so that
they might put in that you have to install the BACT or LAER or whatever, and a com-
pany could be forced to be installing these controls while it was in the appeal process on
the permit, and that that would be a different approach than has typically been taken
under any kind of enforcement regime?
A: ANN ALEXANDER: Well, I think it's an argument for expediting the permit — the
appeal process. But again, I come back to the fact that the requirements — that it really is
required to be encompassed in Title V. And our concern is that enforcement might even
be jeopardized if it's not put in there.
Q: MS. BROOME: How so?
A: ANN ALEXANDER: Well, what I'm saying is there have been suggestions in Court
decisions that it could be problematic if a requirement is not put in the Title V permit.
Q: MS. BROOME: Okay. I would just submit to you that the regulations are absolutely
clear that there is no permit shield for things that occurred prior to the issuance of the
Title V permit. So there would be no shield. There just wouldn't be. And —
A: ANN ALEXANDER: I hope the Courts are wrong. (Alexander, IL Attorney Gen-
eral, Transcript 2-410)
LIN: Secondly, the use of the compliance schedule requirement. In the clinic's experi-
ence, facilities rarely if ever identify noncompliance in their permit applications. As a
result, facilities often repeatedly violate the Clean Air Act, often at the same source and
without a compliance schedule. For instance, Our Children's Earth, upon reviewing the
permit application for the Tesoro refinery near Martinez, discovered there is a significant
question as to whether certain sources at the facility are complying with the Clean Air
Act. According to air district records, in the past two years the refinery has experienced
numerous violations, hundreds of episodes, seven serious incidents, and even two fires in
one month. Three of these seven incidents involved the same boiler, which failed last
year on July 4th and on October 30th and on January 12th of this year. Each time, the
boiler emitted a black plume of coke particulates, other pollutants, and steam. Each
instance prompted emergency warnings to neighboring community. In the past two
years, this same boiler is responsible for at least 13 violations and 20 other episodes.
According to a recent news report, as of a week ago, children at the nearby elementary
school were still unable to play outdoors for recess since the January 12 incident. With-
out compliance schedules, such problems will continue to plague communities and fur-
ther burden communities that are already overburdened by pollution. (Roger Lin, Env.
Law and Justice Clinic, 4-247)
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Q: MR. SCHWARTZ: I think this question is probably for Roger. I work for the air
district that is not putting scheduled compliance in its permits at the appropriate fre-
quency. And I was wondering, when you're reviewing records about violations and you
had mentioned a situation where there's been multiple violations at a particular unit over
a period of time, what kind of information are you looking at? Are you looking at infor-
mation that lets you know about the causes of those violations or how the events oc-
curred? Or, if not, would more information be helpful to you in deciding whether a
schedule of compliance is appropriate?
A: MR. LIN: I personally go over the information from Our Children's Earth petition —
the Tesoro refinery. And I don't know from where Our Children's Earth originally got
that information. But maybe Marcie Keever would.
Q: R. SCHWARTZ: Well, not so much from where, but my question goes to the kind of
information you're looking at and whether it indicated, for instance, the causes of the
violations.
A: MS. KEEVER: Well, I can answer that.[PARTIES TALKING OVER EACH
OTHER]
Q: MS. KEEVER: I think we have had information from the air district, which, I think
you know because we call you up and say, "Hey, Adan, give us all your records; we want
everything." And then we decide what we've going to give back. We're looking at epi-
sodes and the notices of violations and things that are an issue to the refineries by the air
district and all the air district's records, depending on what isn't a trade secret — all those
issues. But I think that it would be — when we bring those issues up to the air district and
say, "It seems as though there's a pattern of violations here at this facility. They've had
this many problems at this boiler." And it kind of comes back and the air district brings it
back to us and says that's not a pattern. So maybe we need more information from you
about what the air district would consider a pattern and would require a schedule of
compliance. And I guess we talked about that earlier, but that's usually the way it goes.
And correct me if I'm wrong, Roger. (Roger Lin, Env. Law and Justice Clinic, Transcript
4-254
Q: MS. KEEVER: Thanks for calling us, Heidi. I had a question. You mentioned
something about some permits were still not issued because of enforcement actions, and
I'm wondering how your State deals with enforcement or compliance problems when also
having to deal with issuing Title V permits?
A: MS. HOLLENBACH: We have a scheduled compliance in the appendix of the per-
mit that we use when a company is not in compliance with the terms and conditions of
permit. That works in most cases, however, we do have — these remaining four have
major enforcement issues ongoing, enforcement actions. And as far as I understand,
there is not an agreement yet, necessarily, on the corrective action. Although, I think
there are two that are going out. One's going out for public comments in the very near
future; and one they will probably include a scheduled compliance in the permit without
the company having submitted it and to try and enforce the permit through that way.
(Heidi Hollenbach, Michigan DEQ, Transcript 4B-22)
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Q: MS. KEEVER: Thanks. This is Marcie Keever with Our Children's Earth. I think I
asked the same question of Michigan. I'm wondering how you deal with enforcement or
compliance problems when issuing either new Title V permits or renewals to facilities in
New Jersey?
A: MR. O'SULLIVAN: Much the same as Michigan, where we already have a — what
we call a consent decree, which would have a compliance schedule in it. We would
incorporate that into the operating permit as an operating permit compliance schedule and
a reverted consent decree. The problem comes when a source operation — we found this
with our initial operating permits — finds a noncompliance late in the process, where they
haven't corrected the problem during the time that we're evaluating the operating permit.
And we don't have an enforcement action to incorporate into the permit by reference. In
those cases, we try to work out with our enforcement program a compliance schedule.
And if they are able to negotiate a compliance schedule with the facility, we would incor-
porate that prior to the final permit. If timing isn't right, then, like Michigan, we are
trying to put in a more generic compliance schedule, that's basically a schedule to get a
more detailed schedule while the enforcement of program works out all the details, which
as you know sometimes these take considerable time to do. (Bill O'Sullivan, New Jersey
Dept. ofEnv. Protection, Transcript 4B-43)
The following written comments were received:
UTILITY AIR REGULATORY GROUP: An issue that has recently been raised in the
context of citizen petitions for objection to Title V permits is the inclusion of compliance
schedules in Title V permits to address applicability and compliance issues in cases
where the permitting authority (or a citizen) and the permittee disagree. Some citizen
groups have asserted that permitting authorities are required to resolve all applicability
and compliance issues (including issues as to past compliance with PSD and NSR permit-
ting requirements) in the Title V proceeding rather than proceeding through other means,
such initiation of an enforcement action.
UARG disagrees not only with the suggestion that States have the legal authority to
impose compliance schedules when the responsible official has not certified noncompli-
ance, [footnote 2 omitted] but also with the policy implications of such a result. Requir-
ing permitting authorities to create the record necessary to resolve complicated disputes
regarding applicability and compliance would overwhelm an already overburdened per-
mitting system. Permitting authorities cannot simply resolve issues in the permit without
creating a legal and factual record to support the determination, or the permit would not
withstand appeal. Including disputed compliance schedules in permits also would force
permittees that are subject to them to appeal and seek a stay of their permit, thus further
impeding implementation of the program. Compliance schedules should be limited to
issues that have been resolved, either by a responsible official's certification of noncom-
pliance, or through some other final action such as a formal applicability determination
that is subject to judicial appeal or an enforcement action. Once the issue is resolved, if
there are any new terms or remedial measures to be added, the permit can be reopened.
(Comments of the Utility Air Regulatory Group, OAR-2004-0075-55)
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EPA Review of Proposed Permits
5. Process Issues
5.1 Topic: EPA Review of Proposed Permits
Issue/Observation Description
The Clean Air Act (Title 42, Chapter 85, Section 766Id) and implementing regulations
(40 CFR 70.8) outline the procedure relating to EPA review of Title V permits (including
permit modifications or renewals). In summary, permitting authorities are to provide to
EPA a copy of each proposed permit. If EPA determines that the permit contains provi-
sions that are not in compliance with applicable requirements then EPA will object to its
issuance. If EPA has an objection, then EPA is obligated to respond within 45 days after
receiving a copy of the proposed permit by providing a statement of the reasons for the
objection and by sending a copy of the objection to the applicant. There are additional
provisions relating to the obligations of permitting authorities to address the objections
raised by EPA (e.g., revise and submit a proposed permit in response to the objection
within 90 days from the date of the objection).
Comments received by the Task Force from the public meetings and written submissions
raised several issues relating to EPA review of proposed permits, which were discussed
in more detail by the Task Force (see Discussion Summary section). Representative
verbal and written comments are included in the Supporting Information section. The
issues raised included:
• Concurrent v. sequential EPA permit reviews: Should EPA review permits on a con-
current or sequential basis, and when is sequential review needed?
• Permit changes during the review process: How do we ensure stakeholders under-
stand what changes have been made by permitting authorities and EPA during the re-
view process?
• Informing stakeholders of the review schedule and permit version in review: How
are stakeholders informed on the review schedule and the permit version in review?
• HQ EPA permit review policy/guidance: Should there be a more formal HQ permit
review policy, including metrics?
Discussion Summary
Concurrent v. sequential EPA permit reviews: This issue relates to the timing for EPA's
review of a permit. If the State forwards the permit to EPA at the time it issues the public
notice, the 45-day EPA review period runs "concurrently" with the public notice period
and typically ends 15 days after the typical 30-day public comment period ends. If the
State forwards the permit to EPA after the 30-day public comment period ends, the EPA
review period is "sequential" and ends 45 days after the public comment period is com-
pleted. A number of comments during testimony were provided on this issue. Some
commenters were concerned that conducting the EPA review sequentially adds time to
the process in situations where there has been no change to the permit (and generally no
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EPA Review of Proposed Permits
comments) and this can delay permit modifications. Other commenters expressed the
view that the Part 70 regulations actually require sequential review rather than concur-
rent. The Task Force discussed the current processes permitting agencies and EPA use to
review permits and whether concurrent or sequential review is preferable. Concurrent, or
parallel, reviews by permitting authorities and EPA take place in some States, and se-
quential reviews takes place in others. In some cases the process is a parallel review, but
if significant comments are received then the EPA 45 day review is added on at the end
of the public notice period (sequential review).
Some Task Force members commented that the advantage of the concurrent review is
that permits are issued more quickly. This is particularly important in a State (e.g., Lou-
isiana) that has a combined construction and operating permit program; delays in issuing
or modifying permits directly translate to delays in project construction. Some Task
Force members indicated that the determination of what is "significant", and would result
in a sequential review, can be left to the permitting authority and that would allow them
to determine what is germane to the permit. These Task Force members noted that often
comments do not address issues relevant to the Title V process (e.g., they may simply
object to the presence of the plant in the area but not indicate any problem with the per-
mit or any issue that can be addressed through the Title V process).
A problem cited with concurrent review by some Task Force members included defining
what is "significant" with regards to when a review should become concurrent (with the
concern being potential abuse in that a State might not consider any comment signifi-
cant). Some Task Force members indicated they were not opposed to some form of
concurrent review, except that if there were any comments (as opposed to significant
comments), the process should become sequential. One Task Force member indicated
the view that concurrent review is not legal and cited this as one basis for opposing the
recommendation regarding concurrent v. sequential review. All of the environmental
group representatives on the Task Force stated that sequential review is the process by
which permitting agencies have to review Title V permits. Some of those Task Force
members stated that concurrent review is the exception not the rule. Some Task Force
members recognize that concurrent review of permits is acceptable when there are no
public comments on a Title V permit. However, these same Task Force members indi-
cated that if there is any public interest in a Title V permit or any public comments on
that Title V permit that the review process is required to be sequential. They were con-
cerned that a member of the public may not learn that the permitting authority did not
consider his or her comment "significant" or "germane" and thus did not convert the
process into a "sequential" one until after the opportunity to petition EPA to object to the
permit has expired. In addition, they pointed out that reverting to sequential review after
any comments are received also assures that EPA will always have an opportunity to
consider public comments when reviewing a permit.
The Task Force generally agreed that a concurrent review is appropriate if no comments
are received during the public comment period, or if the only comment received was
from the permittee. The industry representatives on the Task Force could not foresee a
situation where sequential review would be advantageous for a permittee because signifi-
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cant issues will either be resolved or appealed and they are not generally relying on EPA
objections to permit issuance to obtain any changes they believe are needed to the permit.
Thus, they did not view providing EPA with additional review time as impacting the
content of the permit in response to the permittee's comments.
The Task Force also discussed whether the review process should be different for permit
modifications and renewals versus the initial permit issuance. Some Task Force mem-
bers asserted that for modifications, the determination of germane could be based on
comments made that are related to the change versus already existing terms; this necessi-
tates that modifications are easily identified in draft permits. The process for renewals
should be similar to the one for initial permits. Other Task Force members stated that the
permitting authority should not assume that comments on the entire permit are not ger-
mane to the process as the entire permit is reviewed at renewal.
Permit changes during the review process: The Task Force discussed how, relative to
permit review and public notice, changes that occur during the review process should be
handled. Statements made by individual Task Force members included:
• If changes that occur after the draft stage are extensive or substantive, or would
loosen a requirement, they may warrant a new public notice and review period.
• Changes that result in a more stringent requirement should trigger an interaction with
the regulated facility, although this may be problematic given that Title V is not in-
tended to add substantive new requirements.
• It was also recognized that starting a new public notice and review period can delay
the permit issuance. In some cases the public and facility may be better served by
having the permit issued; in others, a delay resulting in an improved permit may bet-
ter serve the regulated entity and the public.
• The absence of indications of what has changed in a permit (no redline/strikeout
version or no summary memo) makes it difficult to understand what has changed.
One Task Force member commented that documentation of changes is a problem in
Illinois, citing as an example 22 proposed permits, comprising 3000 pages, with no
indication what the changes were.
• One approach to helping stakeholders better understand changes is to maintain a
readily available redline/strikeout version of the permit that was originally issued for
public comment. Some agencies (e.g., Bay Area) do this already on a selected basis.
• In some cases changes are explained in a Technical Support Document or in the
statement of basis. While it was acknowledged that these changes are not always ex-
plained well, one Task Force member said Indiana did a good job identifying changes
in its Technical Support Documents. Nebraska usually does a summary of changes.
• Due to resource, time, and other constraints, it may be impractical for all States to
create redline/strikeout versions for all permits. For example, in New York, the soft-
ware used to create and maintain their electronic database of permits cannot do red-
line/strikeout, and reprogramming plus a separate database would be required.
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Informing stakeholders on the review schedule and permit version in review: The Task
Force discussed the need for stakeholders to be informed of the availability of the draft
permit for review and the overall schedule. Stakeholders indicated that they often didn't
have access to the draft permit, weren't informed of the review schedule on a timely
basis, and often didn't receive the permit for review until late in the comment period.
The Task Force discussed several ideas, including:
• It would be helpful for EPA to post the permit it receives from the permitting agency
on its website within a few working days in a readily accessible location.
• If EPA receives a revised version of a permit, the revised version should also be
posted within a few days. As part of this the permitting agency should submit a list of
the changes included in the revised version. If the changes are significant then the
Agencies should consider resetting the clock for the review period.
• EPA should also communicate (e.g., posting on a website) the deadlines for submis-
sion of comments to the permitting agency (whether concurrent or sequential review)
and the due date for petitions.
• Example data elements that EPA could include on a website include: facility name,
city and State location, permit, date public comment period ends, date of hearing (if
held), date EPA review period ends, date petition period begins, date petition period
ends.
Specific recommendations on this issue are included in the Public Notice Throughout the
Process topic write-up.
HQ EPA permit review policy/guidance: The Task Force had some discussions on the
degree to which EPA Regional offices are nationally consistent in the quantity and qual-
ity of permit reviews. There was a comment that an EPA objection can have an impact
on the quality of permits by setting precedent and providing some degree of national
consistency. One Task Force member suggested that EPA headquarters create guidance
for permit reviews, including the percentage of permits that should be reviewed, the
substance of the comments given to the permitting agencies, review prioritization (e.g.,
permits with public comment, controversial facilities, large facilities, or facilities with
many grandfathered units) and when objections are appropriate. Others felt that EPA HQ
should not become more prescriptive and place more burden on regional authorities.
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Communications between EPA and permitting authorities during the review process:
The Task Force discussed how EPA and permitting authorities interact during the review
process. Communications generally occur by phone, email, or written document and may
reference other documents to be reviewed. Issues/potential issues are discussed and the
permitting authority will often make the change. If a change is not made then EPA will
make an official comment for the record (which needs to be accessible to interested
parties) and may formally object to the permit. There was general agreement that earlier
EPA input {i.e., during the public notice period) is preferred. In the discussion it was
noted that it may be impractical to require every communication be documented since
regional office and State agency personnel have ongoing working relationships and con-
versations, and it would not be productive to artificially restrict these conversations by
imposing a documentation process. At the same time, it is important for stakeholders to
be able to understand why a particular provision of the permit was changed. Some Task
Force members noted that often a permit term would be changed by the State, and the
permitting authority would indicate that EPA had required it to be changed but no sub-
stantive explanation of the reason for the change could be provided.
It was not clear how the results of agency discussions are communicated and recorded for
the other stakeholders. The Task Force had no recommendations on this aspect of the
review except that there should be an explanation of changes to the permit that were
made at EPA's request. The Task Force does have recommendations relating to respond-
ing to draft permits (See Response to Public Comments on Draft Permits in Section 5.6 of
this report).
Recommendations
Recommendation#!
Concurrent v. Sequential Permit Reviews: EPA's review period should generally run
concurrently with the public comment period. The concurrent review should become
sequential if a significant comment germane to the Title V proposed permit is re-
ceived from someone other than the permittee. It is up to the discretion of the permit-
ting authority to make this determination. EPA will have at least 15 days after the
close of the comment period for its review.
In Favor (12)*: Kaderly, Freeman, Broome, Wood, Schwartz, Morehouse, Sliwinski,
Hodanbosi, Paul, van der Vaart, Hagle, Golden
Opposed (6)*: Powell, Raettig, Van Frank, Palzer, Keever, Owen
Abstentions:
Clarifications: Owen and Keever oppose because they disagree with the premise of
the recommendation that the review period should be concurrent.
*Note: Number in parentheses () is the total number of Task Force members voting for this position.
Related Topics: Public Access to Documents, Response to Public Comments on
Draft Permits, Public Notice throughout Process
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Supporting Information
Concurrent v. Sequential EPA Permit Reviews
1. "The Clean Air Act provides this 45 day review period for the EPA. We recommend
that EPA revise the Part 70 regulations to minimize the impact that EPA's review pe-
riod has on the time it takes to finalize a proposed permit modification. Indiana's
program already establishes that EPA's review period runs concurrent with the 30 day
public review period. EPA staff have cooperated with requests for expedited review
so that permit modifications could be issued without unnecessarily delaying changes
that are driven by a business need. However, the rule should be clarified so that mi-
nor changes to a permit in response to public comments do not delay the issuance of
that permit for an additional 45 days." [Thomas W. Easterly, Indiana Department of
Environmental Management, 3/1/05, p3]
2. "EPA Region 5 routinely reviews the MDEQ's Title V permits during the 30 day
public comment period and provides comments during this period. We believe that it
is more efficient for the EPA to comment during the public comment period so all
comments can be considered at the same time. Therefore, we would recommend that
the EPA's review time run concurrently with the public comment period to streamline
the permit review process. If no comments are received, no further EPA review
would be needed beyond the initial period. However, if comments are received and
changes are made to the permit, an additional review period could be provided for the
EPA." [G. Vinson Hellwig, Michigan DEQ, 2/28/05, p 3]
3. "Some substantial delays in permitting have also been attributed to the public review
process. We believe that EPA regions that allow for concurrent public (30-day) and
EPA (45-day) review help expedite the process and this should continue where possi-
ble." [Robert Hodanbosi, Ursula Kramer, STAPPA/ALAPCO, 3/31/05]
4. "Concurrent permitting. We're not sure how many States do it. But it seems to mean
that the public comment period and the 45-day EPA review period start at the same
time. So if we catch something, we only have a very small window to let the EPA
know, and by the time we're done, nobody knows which version of which permit the
regulations are in that we're talking about. I understand that that process may be ap-
proved, but we strongly discourage it." [S Zingle, Lake County Conservation Alli-
ance]
5. BerniePaul: "I have two questions. One deals with your concern about the concur-
rent permit review, the overlapping public comment period, and the EPA 45-day re-
view period. I'm familiar with this in a couple other jurisdictions, and it's my under-
standing that if there are any public comments received, whether from the source or
from the general public, that that sort of presses the pause button on the EPA 45-day
review period, and that pause button isn't pressed again to restart it until the agency
has addressed those comments. Is that how the process works in Illinois?"
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Verena Owen: "... IEPA ... had straight concurrent permitting. Now we have a gen-
tleman's agreement ... there's nothing in writing — that the minute they get a public
comment, we will have sequential permitting. But this is only since the beginning of
this year."
Bernie Paul: "I know in Indiana they have the Memorandum of Understanding be-
tween the IDEM and EPA that put that in effect. So I think that Illinois had a similar
document." [During S. Zingle, Lake County Conservation Alliance comments]
EPA Permit Reviews
1. "The other thing I'd like to address briefly is public and EPA participation in this
process. As I understand it, EPA has, in large part, stopped reviewing Title V permits
and I think that is terrible unless the public comments on the permit. Then EPA will
look at it. There used to be requirements that [EPA] review a certain percentage of
the permits that came in front of them... It's impossible for EPA to know what's go-
ing on in State programs unless they're looking at individual permits. That also
makes citizen participation that much more important. There's no one else there to
catch problems with permits." [Kelly Haragan, Environmental Integrity Project,
Washington D.C. testimony]
Comment Documentation
1. "Hearings are held upon request, although such requests have not been common in
Michigan. Information regarding the date by which the EPA must receive petitions is
outlined on the permit webpage. All relevant comments received during the public
comment or the EPA review periods and any changes made to the permit to address
those comments are documented in the Staff Report before the permit becomes final.
... The MDEQ provides Internet access to all formal permit development documents -
including draft, proposed, and final permits, as well as the Staff Reports -and main-
tains all final Title V permits on our website." [G. Vinson Hellwig, Michigan DEQ,
2/28/05]
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5.2 Topic: Public Access to Documents
Issue Observation/Description
What this paper addresses: One of the issues raised at the Task Force is the difficulty or
ease with which the public can obtain documents during the Title V permit review and
comment process. The comments received primarily focused on the ability of the public
to obtain the documents relevant to the Title V permit comment process in a timely man-
ner.
Additional issues raised in testimony and by Task Force members included the following:
• How can potential abuses of the confidential business or trade secrets exemptions
from open records laws, which may result in agencies illegally withholding public in-
formation, be prevented? If so, are there practices and procedures that could prevent
potential abuses from occurring?
• How can electronic access to permit and compliance documents be improved?
• Which documents should be made available electronically? For those that should, is
it feasible to do so and can electronic access be improved cost-effectively? Are other
programs already addressing these issues?
• Are copying costs for permit and compliance documents preventing the public from
fully participating in Title V? Should agencies be allowed to charge for such docu-
ments and, if so, what should the limit for such charges be? Should non-profits be ex-
empted from copying costs for one copy of each document?
• Are permit application, compliance plan (including the schedule of compliance),
emissions or compliance monitoring report, certification, and permits made publicly
available as required by the statute? Are there other locations where such documents
could be made generally accessible to members of the public? If not, where/how
should such documents be maintained?
• Can agencies provide copies of revised permits in redline/strikeout so that the public
can track permit changes?
• Can or should EPA develop an online clearinghouse for Title V permits searchable by
industry type? What would the costs be?
• Are State/Federal open records laws adequate to allow the public to obtain relevant
permitting/enforcement documents in a sufficiently timely manner to participate in
the Title V process?
• How much, if any, incorporation by reference of construction permit terms is accept-
able in a Title V permit when the construction permit is not available to the public?
[Note that this topic is addressed in detail in Incorporation of Applicable Require-
ments in Section 4.1 of this report.]
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Supporting Information
Statutory/Regulatory Background:
Section 503(e) of the Clean Air Act states the following regarding document availability:
(e) Copies; Availability.- A copy of each permit application, compliance
plan (including the schedule of compliance), emissions or compliance
monitoring report, certification, and each permit issued under this title,
shall be available to the public. If an applicant or permittee is required to
submit information entitled to protection from disclosure under section
114(c) (trade secrets) of this Act, the applicant or permittee may submit
such information separately. The requirements of section 114(c) shall ap-
ply to such information. CAA § 503(e) [42 U.S.C. § 7661b]
Title V regulations also indicate what documents should be made available to the public:
(h) Public participation. Except for modifications qualifying for minor
permit modification procedures, all permit proceedings, including initial
permit issuance, significant modifications, and renewals, shall provide
adequate procedures for public notice including offering an opportunity
for public comment and a hearing on the draft permit. These procedures
shall include the following:
(2) The notice shall identify the affected facility; the name
and address of the permittee; the name and address of the
permitting authority processing the permit; the activity or ac-
tivities involved in the permit action; the emissions change
involved in any permit modification; the name, address, and
telephone number of a person from whom interested persons
may obtain additional information, including copies of the
permit draft, the application, all relevant supporting materi-
als, including those set forth in Sec. 70.4(b)(3)(viii) of this
part, and all other materials available to the permitting au-
thority that are relevant to the permit decision; a brief de-
scription of the comment procedures required by this part;
and the time and place of any hearing that may be held, in-
cluding a statement of procedures to request a hearing (unless
a hearing has already been scheduled). 40 C.F.R § 70.7(h)(2)
(emphasis added).
40 C.F.R. § 70.4(b)(3)(viii) states that in the initial Title V program submission the State
shall submit a legal opinion from the Attorney General of the State or attorney for the
local air pollution control agency that includes, among other things, a demonstration of
adequate legal authority to carry out the following:
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(viii) Make available to the public any permit application, compliance
plan, permit, and monitoring and compliance, certification report pursu-
ant to section 503(e) of the Act, except for information entitled to confi-
dential treatment pursuant to section 114(c) of the Act. The contents of a
part 70 permit shall not be entitled to protection under section 115(c) of
the Act.
Testimony and Comments Received
Some of the testimony that the Task Force heard included the following:
• The documents necessary to review the permits are unavailable. (K. Andria, ABC;
Harley, Chicago ELC; K. Haragan, EIP; Prakash, WE ACT; Suttles, Tulane Env. Law
Clinic)
• Documents (including all or part of the Title V application and other documents from
the list below) are withheld from the public because of confidential business informa-
tion or trade secrets issues. (K. Andria, ABC; S. Zingle, Lake County Conservation
Alliance)
• The public has to use State FOIA or public records laws to obtain documents (includ-
ing the permit). (S. Zingle, Lake County Conservation Alliance; L. Welch, MAEL)
• The document gathering process can take up the entire Title V comment period. (D.
Masters, NAG)
• Copying costs for documents are high, many agencies do not provide for fee waivers.
(L. Welch, MAEL; Verena Owen, Lake County Conservation Alliance)
• Commenters have to travel, sometimes for hours, to obtain documents from their
agency. (S. Gollwitzer, App. Voices)
• Document files are unorganized and documents, especially old State permits, are lost
or microfiche is too old to view. This is complicated by a facility with multiple Title
V permits. (K. Andria, ABC)
• The documents that the public needs to review in order to comment on a Title V
permit should be available online and/or at the agency on a computer and/or available
on CD-ROM. (K. Andria, ABC; L. Welch, MAEL; K. Haragan, EIP; S. Zingle, Lake
County Conservation Alliance; Gorman, Women's Voices for the Earth)
• Online access to documents shouldn't stop the agency from making hard copy docu-
ments available at the agency and/or placing those documents at a local library or
community center. (K. Haragan, EIP; Suttles, Tulane Env Law Clinic; Harley, Chi-
cago ELC; S. Zingle, Lake County Conservation Alliance)
• Interested parties should be notified of a Title V permit issuance in as many meaning-
ful ways as possible. (L. Welch, MAEL)
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Discussion
The Task Force focused its discussion on the ability of the public to obtain documents
from the State or local permitting authority when a person is interested in commenting on
or reviewing a Title V permit. The discussion included the public's ability to obtain the
documents necessary for review of the Title V permit, the cost of obtaining the docu-
ments, and the speed at which the documents could be obtained given a 30-day comment
period on the Title V permit. In addition, the Task Force discussed the availability of
documents online or electronically including what categories of documents should be
made available online or electronically.
Obtaining Documents Requested, Costs and Timing for Obtaining Documents: The
Task Force discussed what the State and local agencies represented on the Task Force
(and a few other States) charge for copying documents. A number of Task Force mem-
bers noted their experience that copying charges among State and local permitting au-
thorities vary widely and this was verified through an informal poll of members of the
Task Force. Amounts ranged from 10 cents a page to 1 to 2 dollars a page, with some
States providing a certain number of copies without any charge at all (ranging from 10 to
400 pages) and others charging for all the copies once the pages exceeded a certain page
number. Task Force members discussed whether the public was able to obtain a fee
waiver for copying Title V documents. Some Task Force members stated that the Title V
programs is supposed to fund itself and that the Title V fees should cover the cost of
providing free copies of relevant documents to the public when it is in the public interest.
Other Task Force members expressed concerns about a fee waiver being granted to other
government agencies, or members of the public taking advantage of a fee waiver to ask
for a larger amount of documents than they otherwise would request. Many Task Force
members shared how the document review and copying process worked in a number of
States. The results of this informal survey are as follows:
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Table 5.2-1
State/Local Copying Charge Other comments
New York
$0.25/page
Retains documents forever.
Nebraska
$0.10/page plus sales tax for
more than 10 pages
State statute requires a re-
sponse to a written document
request within 4 business
days. Nebraska retains docu-
ments for five years on-site,
and then permit documents
are stored off-site for 99
years.
Texas
Free for the first 50 pages and
$0.10/page thereafter. Texas
statute allows for fee reduction
or waiver of fees if the govern-
ment determines that the waiver
or reduction is in the public
interest because providing the
copy of the information primar-
ily benefits the general public.
Texas retains documents
forever.
Bay Area Air Qual-
ity Management
District (San Fran-
cisco, CA)
The first 49 pages are free. If
more than 49 pages are re-
quested the charge is $0.10/page,
including the first 49 pages. The
public can request a fee waiver.
State statute requires a re-
sponse to a document request
within 10 days.
Illinois
The first 400 pages are free. If
more than 400 pages are re-
quested, charge is $0.25/page,
including the first 400 pages.
The State offers fee waivers in
some instances.
Many State or local permitting authorities do not charge the public for emailing copies of
documents or providing documents electronically (i.e., on CD-ROM). The Task Force
recognized that the cost to the public for copying Title V documents could become ex-
tremely high especially given the length of Title V permits and applications. The avail-
ability of fee waiver procedures to members of the public was generally seen as a good
idea, but the availability of such a waiver varies from State to State and could possibly
delay the release of documents. The discussion focused on the States or locals that have
placed documents online and at a minimum, the online availability of the Title V permit,
public notice, and Statement of Basis was considered a best practice. The discussion of
the State and local agencies which place Title V documents online are mentioned below:
• Texas-Online Permit Database
o Texas makes Title V permits, public notices, and information on emission events
available online. Some emission data (whole facility numbers) are also available
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as well as some old permits, although these are more difficult to locate. Texas
also has a compliance rating system online.
• Bay Area Air Quality Management District (San Francisco)
o Available documents online include Title V permits, public notices, statements of
basis, responses to comments, and (some) compliance certifications.
• Georgia
o The web site has a list of facilities with downloadable documents. Each source
listed has a pdf version of the Title V permit, the Statement of Basis (Narrative),
and Public Notice. For draft Title V permits a summary of the Application and
the application itself are online (zip files converting to Word Perfect). For issued
Title V permits, the majority have the application available online.
The Task Force also discussed that in some States copying charges are set by State stat-
ute, so the permitting authority may have no ability to make changes to copying charges.
State statutes also vary widely regarding fee waivers. With respect to the testimony
received regarding the need to submit a records or FOIA request for documents in some
States, this was also discussed as potentially being a function of State law. One Task
Force member, in response to a commenters concern about the FOIA process in Dela-
ware, stated that even though there is a FOIA process, it is a simple one. Delaware De-
partment of Natural Resources can email electronic documents if it receives an email
identifying the document requested. The Task Force member noted that this process
seemed to be a good one, rather than being a sound basis for objection to the FOIA proc-
ess. This Task Force member noted that Delaware's process has improved since the early
years of the Title V program.
Types of Documents that Should be Available for Title V Permit Review and Online
Availability of Documents: The Task Force discussed which Title V documents are
appropriate to make publicly available for review during the Title V process and which
documents are appropriate to make publicly available online. There was general agree-
ment among Task Force members that online access to some Title V documents is a good
practice and that the Title V Permit, Public Notice/Public Hearing Notice and Statement
of Basis should be available online. There was also general agreement that online access
has the potential to save the public and the permitting authority money by allowing the
public to print their own copies of documents and reducing the burden on the permitting
authority to provide paper copies. It was also generally recognized that permitting au-
thorities would need to evaluate both the cost savings from reduced copying and the
expense of creating an online database and maintaining it in an accurate and complete
manner. This is one reason that some Task Force members sought a more measured
approach to on-line database creation.
Task Force members representing environmental groups proposed a list of the types of
documents that they assert should be made publicly available to those interested in com-
menting on or reviewing a Title V permit. The proposed list is provided below. List of
types of documents that the environmental group Task Force members stated they would
like made publicly available for Title V commenters and reviewers:
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• All Title V Permits (draft, proposed, previously issued final and renewal permits)
preferably with changes highlighted using redline/strikeout or some other format
• Public Notice/Public Hearing Notice
• Statement of Basis/Technical Support Document for the permit from initial issuance
and renewal
• Title V Permit Application
tion/trade secrets)
• Permitting Agency Response
Permits
• Other Comments on Title V Permit - EPA, Facility, etc.
• Compliance Certifications and Deviation Reporting
• Semi-Annual Monitoring Reporting
• Other Monitoring Reporting (i.e., CEMs or COMs)
• Old permits (NSR, PSD, State permits to operate)
• Compliance History documents
o Notices of Violation
o Episodes
o Incidents
o Upsets
o Complaints (with confidential information excluded)
o Inspection Reports
o Source Test Results
• Emissions Data and/or Inventory
• Any documents cited in the Title V permit but not included in the permit, e.g., Emer-
gency Response Plans
• Startup, Shutdown and Malfunction Plans
The environmental group members of the Task Force stated that these documents should
be made as publicly available as possible - online, electronically, agency document
repository, near facility (library, community center, etc.) - either electronic or paper
form. Some Task Force members noted that the lack of funding can hinder placing
documents online.
There was significant disagreement among Task Force members regarding providing all
of the listed documents to the public. Some Task Force members asserted that docu-
ments like Emissions Data and/or Inventory, Emergency Response Plans and Startup,
Shutdown and Malfunction Plans should not be made part of the public record for a Title
V permit review because they believe the documents are either not related to whether the
Title V permit contains the appropriate terms, may create confidential business informa-
tion or security issues, or the information in the documents is already reflected in other
(excluding genuine confidential business informa-
to Public and Facility Comments on Draft/Proposed
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documents in the record. Other Task Force members stated that open records laws allow
for the release of such documents if requested by the public and also stated that the
documents discussed can be extremely relevant to the Title V permit in that such docu-
ments indicate whether the terms of the Title V permit are correct. This was disputed by
some Task Force members because Title V lists the specific documents to be made avail-
able in connection with a proposed permit and only requires the permitting authority to
provide the contact information for someone who can provide the required documents
(whatever they may be). Thus, some Task Force members felt that the fact that informa-
tion might be available under open record laws does not mean that it has to be made
available in the context of release of a draft permit.
Some Task Force members stated that Title V regulations only require documents that are
"relevant to the permit decision" to be made publicly available and stated that this is
different than any document that is relevant to the facility. Other Task Force members
stated that what is "relevant to the permitting decision" depends on what the permitting
authority relies on in its decision and usually includes a majority of the documents listed
above.
Other Task Force members described the difficulty in ensuring protection of legitimate
trade secret or confidential business information (CBI) submitted in a Title V application
and noted that in the past CBI that was supposed to be protected by State agencies was
inadvertently included in the public file. On the other hand, some Task Force members
cited instances where a source claims the whole application, or even parts of the Title V
permit, are confidential business information. Other members described the policy of
requiring a facility to submit two versions of a document, one with CBI information and
one without, to the permitting authority so as to expedite public release of documents
without waiting for a CBI determination. Finally, other Task Force members described
how the State or local permitting authority will address CBI issues in Title V documents
before publicly noticing a Title V permit.
The Task Force also discussed the issues surrounding placing many of the listed docu-
ments online. Environmental group representatives pointed out that State and local agen-
cies are already doing so many things on line and many are already placing Title V
documents online that moving towards increasing document accessibility online is the
next logical step. Other Task Force members objected to the concept of creating a data-
base requirement that would necessitate the scanning of large documents that might
include odd-size pages (e.g., permit applications), that would impose continual updating
requirements, or that could contain mistakes, thereby creating the appearance that a
source is violating Clean Air Act requirements when that may not be true. These Task
Force members stated that creating a database requirement for Title V would impose
larger costs on the program far beyond anything that was contemplated under Title V.
Another concern expressed by some industry Task Force members regarding providing
Notices of Violation to the public was that NOVs can be incorrect, later withdrawn, or
challenged and they remained concerned that the NOV would be on the website but
nothing related to its validity would be (or invalidity as the case may be).
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State and industry representatives as well as EPA also cited concerns regarding security
by putting risk management plans under CAA Section 112(r) online. The same concerns
were raised regarding startup, shutdown and malfunction (SSM) plans. In addition,
industry representatives on the Task Force raised concerns about SSM plan availability
more generally given recent revisions to the Section 112 rules as well as the need to
maintain these as "living documents" that change as the plant updates its operations.
These members of the Task Force were concerned about continually needing to update
the "current" version available to the public and resources that would require. Finally,
some Task Force members mentioned that some permitting agencies have a difficult time
locating old NSR/PSD permits due to the passage of time.
Other Task Force members raised the concern that the costs of placing so many docu-
ments online is not justified when most Title V permits receive no comments. These
Task Force members pointed to South Coast Air Quality Management District (Califor-
nia) testimony before the Task Force that less than 3% of permits receive any comments
and that in their experience, there are very few instances in which anyone but the permit-
tee comments on the draft permit. They noted that this was particularly relevant in light
of the fact that SCAQMD had even held public meetings to encourage interest in permits
but still received only a very low level of participation. One Task Force member noted
that in his experience, members of the public rely on and are comfortable with the State
agency ensuring that permits are accurate and complete and he suggested that this may be
a reason that there are few instances in which persons other than the permittee comment
on a permit.
Other Task Force members pointed out that the SCAQMD has approximately 700
sources with Title V permits and receiving comments on less than 3% is more significant
than it seems initially. Also, SCAQMD now has a list of all Title V sources online with
downloadable permit fact sheets for some facilities which is an improvement from the
lack of facility information SCAQMD made available online in the past. Further, one
Task Force member pointed to the Bay Area Air Quality Management District's (Califor-
nia) web site as a good example of online access to Title V documents which has im-
proved and evolved over time.
At the same time, Task Force members recognized that there needs to be a system for
people who do seek to review permit documents to obtain copies of them in a timely and
cost-effective manner. Some State and local agencies appear to be handling this well
while others appear to be having difficulty. There was agreement that the documents
listed in the statute should be made available when requested and that the draft and issued
Title V permits should be available online. In addition, the statement of basis is another
document that all Task Force members felt could be available online.
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Recommendations
Recommendation #1
EPA should encourage Permitting Authorities to facilitate access to the documents rele-
vant to the Title V permit decision, e.g., by making the draft permit and statement of
basis, public notice and public hearing notice, where applicable, available online, by
digital media, and locally (i.e., a repository near the facility/community impacted) in an
accessible format (e.g., PDF), which can also reduce copying and document review costs
to commenters and permitting authorities.
In Favor (17)*: Broome, Wood, Hagle, Freeman, Morehouse, Palzer, Raettig, Powell,
Keever, Van Frank, Sliwinski, Kaderly, Owen, Schwartz, Paul, Hodanbosi, Golden
Opposed:
Abstentions:
Clarifications:
*Note: Number in parentheses () is the total number of Task Force members voting for this position.
Recommendation #l(a)
In addition to the documents listed under Recommendation #1, the Title V application
should also be available online and via digital media.
In Favor (6): Palzer, Raettig, Powell, Keever, Van Frank, Owen
Opposed (10): Kaderly, Hagle, Wood, Freeman, Broome, Morehouse, Paul, Schwartz,
Hodanbosi, Golden
Abstentions (I): Sliwinski
Clarifications: Paul is opposed because of concerns about the potential release of CBI
versions of the application.
Recommendation #2
EPA should encourage Permitting Authorities to waive or reduce the copying costs/fees
for all relevant documents necessary to review a Title V permit when the release of
documents would be in the public interest. Waiver of the fee is in the public interest if
the principal purpose of the request is to access and disseminate information regarding
the health, safety and welfare or the legal rights of the general public and is not for the
principal purpose of commercial benefit or use by government agencies.
In Favor (7): Powell, Keever, Raettig, Owen, Palzer, Van Frank, Golden
Opposed (9): Broome, Freeman, Schwartz, Paul, Sliwinski, Morehouse, Hodanbosi,
Wood, Hagle
Abstentions (I): Kaderly
Clarifications: Freeman opposes as drafted. Paul is opposed because he thinks there
should be a limit to how much paper a person could have free of charge. Hodanbosi
is opposed because, in many cases, State law sets the fee for copying and this cannot
be changed or modified by the permitting agency. Hagle is opposed because his
agency does not control what to charge or when to charge for documents, State law
governs.
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Recommendation #3
The permitting authority should maintain a central file (exclusive of claimed CB1) for
each Title V permit, and in that file, it should maintain all relevant documents to the Title
V permit decision, and should ensure that the file remains complete.
In Favor (17): Palzer, Raettig, Powell, Keever, Van Frank, Owen, Kaderly, Hagle,
Wood, Freeman, Broome, Morehouse, Schwartz, Paul, Sliwinski, Hodanbosi, Golden
Opposed:
Abstentions:
Clarifications: Schwartz clarifies that alternatives to a "central" filing system should be
acceptable if public access is not hindered.
Recommendation #3(a)
If someone requests to review the file and the complete file is not available at the begin-
ning of the public comment period or becomes unavailable during the comment period,
the comment period should be extended to allow the required 30-day review period.
In Favor (9): Palzer, Raettig, Powell, Keever, Van Frank, Owen, Kaderly, Sliwinski,
Hodanbosi
Opposed (7): Broome, Freeman, Morehouse, Wood, Schwartz, Paul, Golden
Abstentions (I): Hagle
Clarifications: Some of those opposing felt that it isn't appropriate to extend a comment
period without an indication that the deficiency in this particular hard copy file actu-
ally impeded the public's development of comments. Schwartz joins this clarification
and additionally clarifies that his opposition is also based on the potential for dis-
agreement about what constitutes "relevant" documents. Hodanbosi makes the same
clarifications.
Recommendation #4
The Task Force encourages all I-PA Regions lo de\elop an online database lor Title V
permits and other supporting documents in the Region, potentially foil owing the example
of Region ^ (see hit n www ena uo\ icuion"^ air nerrnit - sorted by State and permitting
authority and then alphabetically) and Region 5 (see
hltn www ena uo\ reuion5 air ncrmils eoermils htm sorted by SIC code or alphabeti-
callv)
In Favor (9): Powell. kee\er. Raettig. Owen. Palzer. Van Frank. Schwartz. Kaderly.
I lodanhosi
Opposed (N): Broome. Freeman. Paul. Sliwinski. Morehouse. W ood. Golden. Ilagle
. 1 bstentions:
Clarifications: Kaderly clarities that she is in la\or only if it doesn't increase the burden
on the State Some of those opposing were concerned about costs and creation of re-
dundant databases (if States are already pro\iding online access lo documents)
Wood and Golden join this clarillcalion Sliwinski joins this clarillcation and also
slates that if there are redundant databases that FPA's database may not be kept as
up-to-date as the State's which could create confusion
Related Topics: Statement of Basis, Incorporation of Applicable Requirements, Public
Hearings, Permit Content, EPA Review of Proposed Permits
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5.3 Topic: Public Hearings
Issue Observation/Description:
What This Paper Addresses: This issue involves the process for providing and conduct-
ing public hearings on Title V permits. Hearings provide an important opportunity for a
member of the public to participate in and potentially influence a draft permit.
Legal Requirements: Clean Air Act Section 502(b)(6) requires EPA's Title V regula-
tions to establish the minimum elements of a State permit program. Section 502(b)(6)
lists one of these elements as "adequate, streamlined, and reasonable procedures ... for
public notice, including offering an opportunity for public comment and a hearing."
EPA implements this statutory requirement in 40 CFR § 70.7(h), which provides:
Public participation. Except for modifications qualifying for minor permit
modification procedures, all permit proceedings, including initial permit
issuance, significant modifications, and renewals, shall provide adequate
procedures for public notice including offering an opportunity for public
comment and a hearing on the draft permit.
Timing. The permitting authority shall provide at least 30 days for public
comment and shall give notice of any public hearing at least 30 days in
advance of the hearing.
In the preamble to the proposed Part 70 regulations, EPA explained that public hearings
could be implemented in an informal manner as an "open meeting for concerned parties
to express their concerns." 56 Fed. Reg. 21743 (1991). See also Response to Comments
on the 40 CFR part 70 Rulemaking, A-90-33, V-C-l (June 1992). In addition, the Re-
sponse to Comments on the final part 70 rule explains EPA's view of its final rule as not
requiring a hearing every time one is requested because it "would be unduly burdensome
on States, permitting authorities and sources." Response to Comments at 7-29. EPA
clarified that States would not have "unfettered discretion as to whether a hearing should
be held" but gave as an example of appropriate hearing criteria that hearings could be
held only "when material issues have been raised" and stated that a hearing would not be
required if the request for a hearing raised "only irrelevant issues or facts." Id. at 7-30.
Supporting Information: Comments Received
Testimony before the Task Force revealed that permitting authorities are interpreting the
requirement that there be an "opportunity" for a hearing in a variety of ways. In some
States, a hearing is held upon request. In other States, the permitting authority will hold a
hearing only if the requester makes some kind of a threshold showing. Various types of
threshold tests appear to be in place, including a "critical mass" standard, a "ten or more
individuals requesting" standard, a "significant public interest" standard, a "relevant
comment" standard, a "meaningful and informed participation" standard, an "adequate
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justification" standard, and a "significant comments that are directly determined to war-
rant a public hearing" standard.
Numerous environmental group commenters criticized their State's refusal to hold hear-
ings upon request. Many of these commenters stated that it was unclear what standard
their permitting authority was applying when deciding whether to hold a hearing. One
environmental group commenter reported that because her permitting authority applied
an ambiguous "significant public interest" test, she found herself spending much of the
30-day public comment period organizing people to request a hearing. She stated,
"[t]hey have never made public nor perhaps do they even have any objective criteria for
what constitutes sufficient interest. Thus, community groups with scarce human and
financial resources go into a frenzy of activity trying to get better community members,
elected officials to the DEC asking for such a hearing. Sometimes they say yes, other
times no. The time and resources spent on getting DEC to agree to a hearing would be
better spent analyzing the permit, educating community members about the permit and
the Title V process and preparing comments." (Marian Feinberg, Better Bronx.)
Several permitting authorities testified that they employed threshold requirements for
deciding whether to hold a hearing, either in terms of critical mass or significant com-
ment, before going to the expense of a hearing. One permitting authority representative
stated that he thought the policy of giving permitting authorities discretion to deny a
request for a hearing was working well. Some industry commenters noted that where
hearings had been held on their permits, no one attended the hearing, except the facility
and the State agency.
Several environmental group commenters reported that public hearings have been helpful
in organizing and educating communities about major emission sources. One environ-
mental group commenter explained, "[t]he Title V permit and the hearing process defi-
nitely helps make the regulations, which are very complicated, make the regulations
clearer and more transparent for the general public." (Melissa Scanlan, Midwest Envi-
ronmental Advocates.) Another environmental group commenter stated, "I think that both
the agency and our organization learned a lot about the Title V program by going through
that process. There were many people when we had a public hearing on this. Many people
came out to speak, to talk about the problems of air pollution and the impact on them from
this facility, and by having the Title V program involvement, I think it was helpful."
(Lyman Welch, Mid-Atlantic Environmental Law Center.) One environmental group com-
menter explained, "[w]e view the public hearing as the most important opportunity to ask
questions because when we ask questions in a public comment in written form, we never
get any answers." (Kathy Andria, American Bottoms Council.) A permitting authority
representative testified, "if there is an environmental justice issue related to the facility,
people want to have a hearing. They want to have a meeting. They want to know. They
want to express their concerns. Very seldom is there a resolution of the issue at the
hearing; however, the issues are placed on the table. And it gives the permitting agency -
- us — and whoever else is in attendance, namely, the facility and the regional office, a
good sense of what the issues are at the facility." (Peter Hess, Bay Area AQMD.)
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Several commenters testified that they sometimes felt that their hearing testimony and
written comments are not worthwhile because the permit is already a fait accompli by the
time they have an opportunity to participate in the process. One commenter thought this
situation could be improved by soliciting public comment at an earlier point in the permit
proceeding.
A few commenters voiced support for the practice of State agencies holding information
sessions prior to a permit hearing, while others noted that notwithstanding information
sessions, they were not seeing much interest in hearings. For example, the South Coast
AQMD indicated that it frequently initiated information sessions on permits since it was
not receiving either public comments or requests for public hearings on permits. This
commenter noted they had very sporadic participation and that hearings were requested
for less than 2% of permits. (Mohsen Nazemi, South Coast AQMD; also Bill O'Sullivan,
New Jersey DEP.)
One environmental group commenter explained that she hosted her own information
session prior to a public hearing so that members of the public would have an opportunity
to ask questions about a permit prior to testifying at the hearing. She stated, "the public
hearing by itself with people just showing up probably would not have been too informa-
tive because you are just listening to the three-minute testimony. But we were able to use
the Title V permit as an educational tool with the community prior to the hearing to show
them what the permit limits were, and then they were able to use that to inform their
testimony and it led to a large turnout at the hearing." (Melissa Scanlan, Midwest Envi-
ronmental Advocates.) A permitting authority representative explained that his agency
holds "workshops to educate the public on how to comment and inform them of the Title
V permit process." (Peter Hess, Bay Area AQMD.) But one environmental group com-
menter criticized his local permitting authority for holding an information session and
then using that session to justify denying a request for a public hearing.
Commenters raised the issue of hearings being scheduled for inconvenient times or
places. One commenter explained that it isn't appropriate to hold a hearing at the loca-
tion of the facility when most of the people concerned about the facility reside and work
in a larger community some distance away. Two commenters complained about hearings
being scheduled on or near public holidays, or at the same time as an important local
government meeting.
A few commenters raised issues regarding the conduct of public hearings. One environ-
mental group commenter testified: "We've requested hearings and then we go into a
room. Those hearings are not published. No one else knows about them. They have
never published, to the best of my knowledge, publicly published the hearing was ongo-
ing, and that's at the county level." (Bob Hall, Nevada Environmental Coalition.) A
State agency representative complained about "verbal abuse and theatrics at public hear-
ings" that "divert attention away from the important issues surrounding the permit and
take up valuable time, which makes it difficult for other community members to submit
comments to the record." (Amy Mann, Delaware DNR.) One environmental group
commenter spoke highly of her State agency's conduct of a hearing: "Jim Ross, who was
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an acting permit manager, said: 'And now some comments on tonight's hearing. We are
here to provide you with information and, perhaps more importantly, to listen to your
comments and concerns. Your comments can and do often affect the content of the
permit or even the final action that is to be taken on the application. So please make your
concerns known to us.' That's exactly right. Couldn't have said it better. Now all we
have to do is make sure that they mean it." (Susan Zingle, Lake County Conservation
Alliance.)
Two permitting authority representatives testified that issues are sometimes raised at a
public hearing that cannot be addressed through Title V, such as requests for more strin-
gent regulations for a facility. (Peter Hess, Bay Area AQMD; Heidi Hollenbach, Michi-
gan DEQ.) However, one permitting authority representative testified that it was useful
for issues pertaining to a facility to be raised at a hearing, even if they cannot be ad-
dressed through the Title V process: "Some of those issues [raised at a hearing] cannot
be resolved in the Title V [process] — they're outside the Federal enforceability, like odor
nuisance or something like that. But at least they're brought to the attention; and it can be
addressed elsewhere." (Peter Hess, Bay Area AQMD.)
Task Force Discussion
The Task Force began by discussing testimony indicating that some permitting authori-
ties were denying hearing requests inappropriately, and that permitting authorities are
applying a wide range of standards applied for determining when a hearing request
should be granted. Environmental group representatives took the position that a hearing
should be granted upon request. They explained that if someone requests a hearing and
the permitting authority believes that a hearing is unnecessary, the permitting authority
should contact the requestor and find out whether an alternative, such as an individual
meeting, would satisfy the requester's needs. If the requester continues to want a hear-
ing, however, they thought that a hearing should be held. They emphasized that public
hearings are important because many people find it difficult and intimidating to craft
written comments, but are much more comfortable speaking at a hearing.
Several Task Force members criticized the practice employed by at least a couple permit-
ting authorities of deciding whether to grant a hearing request based on whether signifi-
cant written comments have already been submitted. They pointed to testimony that it is
difficult to prepare detailed written comments sufficient to justify their request for a
hearing while simultaneously undertaking public outreach to notify people of their oppor-
tunity to request a hearing. In addition, they stated that it makes no sense to require
people who wish to have the opportunity to present testimony orally to first identify their
issues in writing. An environmental group representative reported that one State that
employs the "significant written comments" test has a history of denying hearing requests
despite the submission of detailed and relevant written comments. According to that
Task Force member, the permitting authority justified these denials either by declaring
that the comments were not "significant" or by concluding that the group requesting the
hearing had already expressed their concerns adequately in writing, and thus, there was
no need for a hearing. The member stated that the permitting authority's approach con-
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fronted the public with a Catch-22: if they don't submit detailed written comments, their
hearing request may be denied on the basis that their concerns are insignificant, but if
they do submit such comments, their request might be denied on the basis that they al-
ready presented their views adequately.
A permitting authority representative from a State that utilizes a "significant comments"
standard noted that this standard was in the State's regulations prior to adoption of the
Title V program, and agreed that this test may not be well suited for Title V. There was
general agreement among permitting authority representatives on the Task Force that
many States were applying tests that pre-dated Title V and have not been tailored to the
suit Title V program.
Regarding testimony critical of North Carolina for denying hearing requests, a permitting
authority representative from that State (who is a member of this Task Force) confirmed
that North Carolina has denied certain hearing requests. He stated that the requester had
made identical comments with respect to other draft permits and that the State had al-
ready responded to those comments. He also stated that the same requester had sought
hearings on many other draft permits, that the requester did not live near or around the
subject facilities, and that previous hearings held upon this person's request were often
not attended by anyone, notwithstanding newspaper notice. He explained that in light of
this experience, the State had concluded that the expense of a hearing was not warranted
and was not in the public's interest.
Permitting authority and industry representatives generally took the position that a per-
mitting authority should have discretion to deny a hearing request. One permitting au-
thority reported that he has held a hearing upon request where no one attended. Envi-
ronmental group representatives reported that they had never heard of this happening in
their State, and that they doubted that most groups would risk their credibility by request-
ing a hearing and then not attending it. One environmental group representative reported
that her State regularly denied her group's hearing requests even though the State was
well aware that the group was very effective at generating high attendance at hearings.
Environmental group representatives took the position that while there may be some
groups who would request a hearing without attending, there was no evidence that this
was a common practice, and a concern that this may happen on occasion does not warrant
restricting others' ability to testify at a public hearing.
One environmental group representative suggested that a permitting authority may be
partially responsible for low attendance at a hearing. She stated that the timing and
location of a hearing could prevent people from attending even if they made the hearing
request. She described specific experiences where hearings had been held at night in
places far away from where most people lived. She said that this had happened repeat-
edly and that she was beginning to think that the permitting authority was intentionally
making it difficult to attend hearings. Permitting authority representatives responded that
they saw no reason why a permitting authority could not work with a requester to make
sure that hearings were scheduled at convenient times and places. They stated that they
frequently hold hearings at night so that people who work during the day can attend.
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Several permitting authority representatives indicated that they should have the ability to
deny a hearing request when the issues raised do not relate to Title V. They noted that it
is common for people to raise issues at hearings that cannot be addressed through Title V,
such as odor, nuisance, other statutes, or the stringency of a Clean Air Act requirement.
They reported that people attending hearings often become frustrated when they are told
that their concerns cannot be addressed through Title V. One industry representative
described a hearing at which several hundred people showed up, but testified about con-
cerns that had nothing to do with Title V. An environmental group representative replied
that often the Title V hearing is the only opportunity for concerned citizens to voice their
concerns about a facility publicly. This member suggested that even if some of the testi-
mony raises issues that cannot be addressed through Title V, a hearing serves the useful
purpose of alerting a permitting authority to public concerns that they may be able to
addressed in other ways.
Some permitting authority representatives reported that they employ thresholds to deter-
mine whether a hearing is warranted because putting on hearings can be expensive but
they were clear that in making decisions about whether to grant a hearing in a given case,
cost was not used as a factor or a basis for denying a hearing. Among the costs cited
were the cost of a hearing examiner and a person to record testimony, as well as the cost
of staff overtime and hearing room rental.
Several Task Force members noted that a person's view regarding issues raised with
respect to public hearings depends in large part on what they consider to be the purpose
of a public hearing. Several industry representatives indicated that they viewed a public
hearing as a vehicle for ensuring that a Title V permit is written properly and noted
EPA's statements in the part 70 rules. One industry representative expressed the view
that it is not the permitting authority's role to go out and try to generate public interest in
a hearing. Environmental group representatives agreed that ensuring that a permit is
written properly is the primary purpose of a Title V hearing, but explained that they also
view a Title V hearing as an important vehicle for facilitating a better public understand-
ing of the facility being permitted and the purpose of a Title V permit. In addition, they
view a Title V hearing as a way for the public to communicate their concerns about a
facility to the permitting authority and to the source, itself. Environmental group repre-
sentatives expressed the view that it is often useful to the public and the permitting au-
thority for people to come together to comment on a permit at a public hearing, especially
where community members previously have expressed concern about the source being
permitted. Thus, these Task Force members thought that permitting authorities should
play an active role in educating the public about their opportunity for a hearing and pub-
licizing hearings when they are held (beyond just publishing notice of the hearing in the
legal section of a newspaper).
With respect to Recommendation #1, Task Force members thought that much of the
public confusion about what a Title V permit is and what issues are relevant to the Title
V process could be addressed by the permitting authority holding an information session
prior to a public hearing. Task Force members recognized that in some States, members
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of the public have the opportunity to ask questions of the permitting authority at a hear-
ing, but in most States, the public hearing consists only of members of the public stand-
ing up and providing oral testimony on the record. While permitting authority represen-
tatives almost always attend such hearings, they often do not speak at them.
Some permitting authority representatives on the Task Force indicated that they fre-
quently hold an information session prior to a public hearing, generally on the same
evening. An environmental group representative reported that while she viewed informa-
tion sessions as useful, she had heard that people sometimes get frustrated when the
permitting authority does not make it clear that statements made at the information ses-
sion are not included in the administrative record. This member also reported that people
are sometimes frustrated when the information session goes on too long, and people have
to leave before they have a chance to testify at the hearing. A permitting authority repre-
sentative reported that his State addresses this concern by strictly limiting the information
session to a relatively short period (e.g., 45 minutes), and clearly informing people ahead
of time that the first 45 minutes would be the information session. He also explained that
if people have to leave the hearing before getting to testify, they can write their comments
down on a card that is provided to them at the hearing. Some Task Force members sug-
gested that it might be helpful to have the information session on a different night, so that
the hearing would not run too late.
Also with respect to Recommendation #1, Task Force members discussed whether a
permitting authority can hold an information session without also holding a hearing.
Task Force members agreed that there may be circumstances where the public is inter-
ested in an information session, but there is no public interest in a hearing. However,
several members were concerned that a permitting authority may hold an information
session in lieu of a hearing -i.e., the permitting authority would use the fact that it held an
information session as a reason for denying a public request for a hearing. One environ-
mental group representative explained that this had happened in her State. Other mem-
bers of the Task Force noted that EPA actually contemplated when it issued the part 70
rules that information sessions would satisfy the public hearing requirement of Title V.
They stated that the point is for interested persons to have an opportunity to learn about
the permit and express their concerns. These Task Force members believed that there is
no reason that a State could not use an informal process like this to meet its opportunity
for hearing requirement.
Other Task Force members responded that regardless of the formality of a hearing, the
important difference between a "public hearing" and an "information session" is that a
public hearing provides an opportunity to submit oral comments into the administrative
record, while statements made at an "information session" are typically excluded from
the record. They noted that while testimony suggested that some States were holding on-
the-record hearings that also involved an opportunity for the public to ask questions of
the permitting authority (and get an oral response at the hearing), the vast majority of
States do not include statements made at these more informal sessions in the administra-
tive record. They further stated that the statute's requirement that the public be given an
"opportunity for a hearing" clearly contemplates that such hearing would be on the re-
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cord, and that insofar as EPA had previously stated that a public hearing could be infor-
mal, the agency could not have meant that statements made at such a hearing could be
excluded from the record. Other Task Force members quoted EPA's statements in the
Response to Comments on the part 70 rules that "an open meeting for concerned parties
to express their concerns can meet the requirements for a public hearing" and that "[i]f a
transcript of the hearing is not available, a summary of the comments received at the
hearing" is sufficient if it is placed in the public record. They read these statements as
clear indication that part 70 does not require a public hearing to be on the record. RTC at
7-30. In any event, the Task Force generally agreed that it would be inappropriate to
deny a hearing request merely because the permitting authority had held an information
session.
With respect to Recommendations #2 and #3, permitting authority and industry represen-
tatives felt strongly that States should have discretion to deny a hearing request. One
permitting authority representative explained that he believed that a hearing should be
held only where the requester resides in an area affected by the source. Other Task Force
members expressed the view that a permitting authority should be able to deny a hearing
request where the issues being raised were not relevant to the Title V permit. Environ-
mental group representatives explained that under circumstances where a permitting
authority thinks that a hearing request is not justified, the permitting authority should
contact the requester and see if they can reach agreement on the need for a hearing rather
than just denying the hearing request. They expressed the view that it should be possible
to address most hearing requests in this manner. At a minimum, environmental group
representatives thought that the presumption should be that a hearing is held upon re-
quest.
Insofar as a State applies some kind of a standard to decide whether to hold a hearing,
environmental group representatives felt strongly that the standard should be unambigu-
ous, communicated to the public, and applied consistently. Task Force members had
varying opinions regarding the kind of standard that might be acceptable (or that would
be unacceptable). Without endorsing use of a "significant public interest" test, environ-
mental group representatives explained that if such a test is employed, the State should
make it clear what the requester must do to satisfy the test, e.g., specify the number of
people that needed to make a request. One environmental group representative explained
that her State will hold a hearing if an elected official makes the request, and that this
approach works fairly well for her organization.
Environmental group representatives also stated that if a permitting authority applies a
relevant comment test, that test should be applied liberally such that any relevant com-
ment would be sufficient. They explained that a standard requiring a comment to be
"significant" lends itself to abuse, because it may lead the permitting authority to deny a
hearing whenever it disagrees with the comments and thus believes that the comments
will not affect the content of the final permit. Environmental group representatives also
pointed out that there may be important issues that the public commenter considers to be
germane to the permit proceeding, but that the permitting authority believes are not. For
example, environmental group representatives indicated that there had been some dis-
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putes about whether environmental justice concerns were relevant to Title V proceedings.
Thus, environmental group representatives suggested that where a State employs some
kind of relevance standard, that standard should include comments that are arguably
relevant, even if the permitting authority does not itself view those concerns as relevant.
Other Task Force members noted that State agencies are well situated to determine what
comments are relevant to the Title V permit, focusing on whether the permit reflects the
applicable requirements in underlying rules since Title V does not itself create new emis-
sion limits.
Recommendations
Recommendation #1
As a best practice, when a public hearing is requested, a permitting authority should offer
the requester the opportunity for an informational session prior to any hearing. The fact
that an information session has been or will be held should not be used as a basis for
denying a hearing request. If a permitting authority intends to hold both an information
session and a hearing, information about both events should be included in a single no-
tice.
In Favor (17)*: Broome, Paul, Wood, Hodanbosi, Powell, Raettig, Owen, Morehouse,
Hagle, Sliwinski, Schwartz, Freeman, Kaderly, Keever, Van Frank, Golden, Palzer
Opposed:
Abstentions:
Clarifications: Broome clarifies that she supports EPA's statements in issuing part 70
that informal meetings can constitute a hearing but that an information session should
not be the sole reason for denying a hearing request.
*Note: Number in parentheses () is the total number of Task Force members voting for this position.
Recommendation #2
In general, a hearing should be granted upon request. If a State applies a standard to
decide whether to hold a hearing, the State should make it clear exactly how a person
would satisfy that standard. If the State requires a person to identify relevant concerns in
support of a hearing request, the State should hold a hearing if the requestor identifies at
least one issue that is arguably germane to the Title V proceeding. If a State chooses to
utilize a "significant public interest" test, the State should establish clear guidelines for
what satisfies that standard, e.g., a request by a public interest organization or by a certain
number of individuals.
In Favor (9): Owen, Raettig, Van Frank, Powell, Keever, Kaderly, Hodanbosi, Palzer,
Sliwinski
Opposed (8): Hagle, Schwartz, Broome, Paul, Freeman, Wood, Morehouse, Golden
Abstentions:
(Clarification on next page)
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(Clarification for Recommendation #2)
Clarifications: A vote in favor of this recommendation does not imply support for the
sample standards articulated in the recommendation. Opposition to this recommendation
does not imply opposition to a State having a standard that the public can understand, that
the State articulate that standard publicly, and that the State apply that standard consis-
tently.
Recommendation #3
States should retain discretion provided under part 70 to decide whether or not to hold
public hearings based on factors such as whether significant and germane issues relevant
to whether the Title V permit contains the appropriate terms and conditions have been
raised.
In Favor (12): Broome, Schwartz, Hagle, Hodanbosi, Freeman, Morehouse, Wood,
Kaderly, Paul, van der Vaart, Sliwinski, Golden
Opposed (6): Powell, Raettig, Owen, Van Frank, Keever, Palzer
Abstentions:
Clarifications: Powell, Keever, Palzer, and Raettig clarify that they view the phrase
"significant and germane" to be too vague to serve as a useful standard, and that a
vague standard can lead to inconsistent and arbitrary denials of public hearing re-
quests. Schwartz clarifies that if a State chooses to utilize a standard, the State should
establish clear guidelines for how the standard is met.
Recommendation #4
EPA should ensure that any test used by a State to decide whether to grant a hearing
request is public, unambiguous, reasonable, consistent with the purposes of Title V, and
applied in a consistent, non-arbitrary manner.
In Favor (9): Powell, Palzer, Keever, Van Frank, Owen, Schwartz, Hodanbosi, Raettig,
Sliwinski
Opposed (7): Broome, Morehouse, Golden, Wood, Freeman, Paul, Hagle
Abstentions:
Clarifications: Broome and Golden oppose because they view a general reasonableness
standard as sufficient and that this is already embodied in the rules so that no further
steps are required. Freeman opposes because the mechanism by which EPA would
ensure these criteria are met is unclear and she would not support prescriptive regula-
tions.
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Recommendation #5
As a best practice. in determining the lime aiicl location of any hearinu. the pcrmillinu
agency should Hike into account the ahiIil\ of interested persons to attend I'm' example,
the permitting agency could conuicl the pcisixi who requested the hearing and the source
to determine a coinenient lime and place
In Favor (IS): Schwartz. Pan I. Palzer. kee\er. Sliwinski. Morehouse. Wood. freeman,
liroome. Owen. Powell. Raettig. I loclanhosi. kaderly. I laule. \"an I'rank. kee\er.
(iolden
( )/>/>( isi'd:
. 1 Intentions:
Clarifications: Powell. Van I'rank. Palzer. and kee\er clarify thai the lime and place of
llie hearing should he selected hased 011 what is comenieni 10 the memhers of the
general public who wish 10 participate I laule and Broome elarily that the ability of
interested persons to attend should he one hea\ily weighted factor, hut State re-
sources. tra\el restrictions, and other factors must also he considered
Recommendation #6
If a citizen petition under (\\.\ vj5<>5( h)(2) demonstrates that a permitting authority arbi-
trarily denied the petitioner s request lor a hearinu. I-P.\ should object to issuance of the
permit
In l-'aror (10): Powell. Palzer. kee\er. Van I'rank. Owen. Schwartz. Ilodanhosi. Raettig.
Sliwinski. I laule
Opposed (I): Morehouse
Abstentions (5): freeman. Paul. Wood. Broome. (iolden
Clarifications: Opposition and abstentions are based in part 011 the suggestion that States
are arbitrarily denying hearings (which these members do not helie\e is the case), and
it is unclear what the standard would be for a demonstration that a denial was arbi-
trary Powell clarifies that whether a decision is arbitrary depends 011 the facts of
each particular case She also clarifies that l-P.\ should interpret the term "arbitrary"
consistent with the well-established meaning set forth in case law (i.e.. when a State
fails to pro\ide a reasoned explanation, or when its explanation (a) relies 011 a factor
that the State should not ha\e considered. (b) runs counter to the e\idence before the
State. (c) fails to consider a rele\ant factor, or (d) is so implausible that it could not be
ascribed to a difference in \icw or the product of agency expertise )
Related Topics: Public Notice
Attachment: Relevant Testimony
Information sessions
Heather Abrams, Georgia EPD: Especially if someone is requesting us to have a public
hearing, which is different than our question-and-answer, we go ahead and we'll have a
meeting to do the question-and-answer well in advance of holding a hearing, and we
contact those individuals that have requested the hearing to make sure that they're in-
volved.
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Melissa Scanlan, Midwest Environmental Advocates: I think the public hearing by itself
with people just showing up probably would not have been too informative because you
are just listening to the three-minute testimony. But we were able to use the Title V
permit as an educational tool with the community prior to the hearing to show them what
the permit limits were, and then they were able to use that to inform their testimony and it
led to a large turnout at the hearing. So I think it's the combination of having the Title V
process available but also having nonprofit serving as that intermediary bridge role to
help use Title V as a way to educate people about what the permit terms are and what that
means for public health in the community.
Location of hearing
MS. KADERLY: And just one other quick question. When they hold hearings, do they
hold hearings in your area, where the facility may be located, or are they held in
Springfield? I wasn't quite sure.
Kathy Andria, American Bottoms Council: For the most part they're in our area. One
interesting one, we've got a pool of gasoline petroleum products under the Hartford area
from the refineries, and there was a public hearing that was scheduled to be there, and it
had to be moved because they said the building could explode that night. So we've got
challenges to that. Then they had one that they combined two power plants. One was in
a southern Illinois community, one was up in the Alton area, and they held it in between,
halfway in between, which was totally unacceptable because neither community — I
mean, it was a wide area. I mean, it made sense, I guess, but it was not convenient to the
community participants.
Location/Timing of hearing
Marian Feinberg, Better Bronx: So then we're left with a situation of really asking for
there to be mandates and part of the Title V program and saying, well, if we're giving this
power to the State to do this, then the State has to fulfill these mandates. And one of
them really needs to be a broad public notification in sufficient time and starting with
some of the things that the State does in order to evade public participation. For example,
you know, in one situation where they persistently set up public hearings five days, ten
days before Christmas, for example, when — and the fact that community members still
come out 150 or 200 people to respond to something even at that time is a real tribute to
the level of interest. And one might wonder if it weren't five days before Christmas how
many people might have been able to come out. So we feel like sometimes it's not only
carelessness but deliberate in terms of trying to keep down the numbers of people who
can come out or who can comment.
Susan Zingle, Lake County Conservation Alliance: One of the things that they did during
the construction permit phase, they would schedule the hearings on the night that the
village board meets. So local officials who need to know what's going on or may have
questions to ask are denied that opportunity. We raised all kinds of grief. And when they
did the Title V permits, they did it again. They have scheduled hearings on religious
holidays. So the church across the street has 400 cars in the parking lot, and two or three
of us are sitting over at the Title V hearing. Those people want to know. They should be
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both places. And at some point — those kinds of things have happened often enough that
it's — it's not an accident. At the very least they are just simply refusing to look at the
outside elements if not deliberately scheduling around them. Scheduling in meeting
rooms that don't have air conditioning in the middle of August. Ah, come on, you know.
What does it take?
Avram Friedman, Canary Coalition: When the first four power plant Title V permits
came up for review in 2002, the DAQ did grant two hearings that combined permits of
two plants at each. The hearing for the Belluse Creek and Dan River facilities were held
in Rockingham Community College. The hearing for the Roxboro and Mayo plants were
in Roxboro Community College. For those of you who may not be familiar with the
geography of North Carolina, these are remote sparsely populated regions that are, to say
the least, inconvenient to get to, especially on a weekday or working night. The hearings
were minimally publicized beforehand in the local newspapers of the hearing venue
despite the fact that the emissions from these plants affect hundreds of thousands of
people in large urban areas downwind of the facilities. Speakers who traveled up to four
hours to be heard were granted three minutes to comment on the content of both 40-odd
page documents. Experiencing this set of circumstances can only leave the impression
that the hearings are viewed by DAQ officials as a mere formality rather than as a mean-
ingful part of the decision-making process. Important issues were raised of great public
concern to the public. For instance, it was brought to light that the Roxboro and Mayo
Power plants were being licensed to incinerate toxic wastes such as used oils, solvents,
ethylene glycol, waste ammonia citric acid boiler cleaning solution, and coal fly ash
mixture from the nearby Cogentrics plant if there was no follow up to comments or any
indication that comments had influenced either the terms of a particular permit or general
policy by the DAQ. There's a prevailing and sinking feeling that participants have
wasted valuable time in researching the issues, preparing a statement, and traveling long
distances to deliver them, that written comments will be filed and forgotten to no avail,
that the public's interest is not being served.
MR. SCHWARTZ: You mentioned a couple of public hearings that were granted and
that did occur, and I could be mistaken, but it sounded like they were held in the
community near where the facility was.
Avram Friedman, Canary Coalition: That's correct.
MR. SCHWARTZ: And I was wondering what — yet you sounded critical of that, and I
wondered what exactly was wrong with that and what other — what you would propose
instead as far as a location for a public hearing.
Avram Friedman, Canary Coalition: Well, I think for anything that pollutes to the extent
of a coal burning power plant that's owned by a public utility, you have to look down-
wind and look at the major urban areas that are affected by the emissions. For instance,
Winston-Salem, Greensboro, Raleigh or Durham would have been a much more appro-
priate place for those hearings to be held.
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Conduct of hearing
Bob Hall, Nevada Environmental Coalition: We have had some public hearings and —
well, first, let me put it this way. I shouldn't say public hearings. We've requested hear-
ings and then we go into a room. Those hearings are not published. No one else knows
about them. They have never published, to the best of my knowledge, publicly published
the hearing was ongoing, and that's at the county level.
Amy Mann, Delaware DNR: The public's frustration has also manifested itself in the
form of verbal abuse and theatrics at public hearings. These inflammatory comments and
actions divert attention away from the important issues surrounding the permit and take
up valuable time, which makes it difficult for other community members to submit com-
ments to the record. The agency recognizes the importance of public review in the Title
V process and is simply suggesting that measures be taken to provide the public with
guidance that would enable communities to more clearly articulate concerns on any given
permit without resorting to unproductive, canned objections.
Susan Zingle, Lake County Conservation Alliance: Jim Ross, who was an acting permit
manager, said: And now some comments on tonight's hearing. We are here to provide
you with information and, perhaps more importantly, to listen to your comments and
concerns. Your comments can and do often affect the content of the permit or even the
final action that is to be taken on the application. So please make your concerns known
to us. That's exactly right. Couldn't have said it better. Now all we have to do is make
sure that they mean it.
Agency consideration of comments made at a hearing
Bob Hall, Nevada Environmental Council: We from time to time both on this and Title
V have requested hearings. It's a waste of time. Our comments are documented. When I
say they're excruciatingly documented, we have a group of people that are technical
experts that either worked for the agencies or they worked for sources of air pollution or
something like that where they have the technical experience. We put those in single-
spaced documents that total 20, 40, sometimes 60 pages of single-spaced detailed as to
why that site should not be permitted and we don't even get a reply.
Standardfor holding a hearing/hearing request rejections
Scott Gollwitzer, Appalachian Voices: In North Carolina, the public notice net is cast in
very narrow geographic range. The circumstance generally results in no one, other than
our organization, requesting a public hearing. This allows the director of DAQ to
impermissibly use a critical mass standard to determining whether to hold a public hear-
ing. DAQ's track record during our Stack Watch campaign is abysmal. Between May
13, 2003 and September 16, 2004, 76 out of roughly 80 requests for public hearings were
summarily denied. Better public notice protocols as outlined above will help eliminate
the director's use of this critical mass standard. If DAQ refuses to approve the public
notification protocols, at a minimum they should periodically check the public's pulse by
holding some public hearings on permits for large facilities and heavily populated areas.
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Gollwitzer: Second, we need more public hearings in North Carolina. In North Carolina,
the public notice net is cast in very narrow geographic range. The circumstance generally
results in no one, other than our organization, requesting a public hearing. This allows
the director of DAQ to impermissibly use a critical mass standard to determining whether
to hold a public hearing. DAQ's track record during our Stack Watch campaign is abys-
mal. Between May 13, 2003 and September 16, 2004, 76 out of roughly 80 requests for
public hearings were summarily denied. Better public notice protocols as outlined above
will help eliminate the director's use of this critical mass standard. If DAQ refuses to
approve the public notification protocols, at a minimum they should periodically check
the public's pulse by holding some public hearings on permits for large facilities and
heavily populated areas.
MR. PALZER: I would like to let you know something that we do in the State of Oregon
and see what you think how it would satisfy your request for making it easier to be able
to get a hearing held when you have issues even though you don't have this, what you
call, critical mass. In our State whenever there's a request by ten individuals or an or-
ganization representing ten individuals, the State is obligated to grant a hearing. What do
you think of that idea?
Gollwitzer: I'd probably defer any particular answer at this time, although I do like the
idea. I think that would go at least in one direction to kill this critical mass standard that
is currently being used by the North Carolina Division of Air Quality. And I would
certainly be happy to address that as well in my written comments.
Avram Friedman, Canary Coalition: Aside from the documentation of the permit itself,
the administration of the Title V process is deeply flawed in North Carolina in several
ways. Although in the past it was promised by the State agency that public hearings
would be part of the review process of all Title V permits for utility owned coal burning
power plants, the DAQ has not followed through. Public hearings were denied for the
Buck Steam Station, the Allen Steam Station, the Cliffside Steam Station, the Riverbend
Steam Station and others citing, quote, lack of significant public interest, unquote, despite
written requests by multiple organizations who represent thousands of affected citizens
throughout the State.
Bill O 'Sullivan, New Jersey DEP: We don't get much public interest in our permits.
When there's a request for a public hearing, we generally honor that request. I don't think
we've ever turned down a request for a public hearing, but we don't get many of them.
When we get a request to accept public commentary, we do that as well. We don't be-
lieve that there should be the need to reissue a public notice if there's a request to extend
the comment period.
Marian Feinberg, Better Bronx: And we would like very much to have public hearings
be made mandatory following a simple request as is done in many other States but not in
New York.
Feinberg: Second, failure to respond to community requests for a Title V hearing. The
New York State DEC responds to requests for public hearing by saying well, we'll see if
there's sufficient interest. They have never made public nor perhaps do they even have
any objective criteria for what constitutes sufficient interest. Thus, community groups
with scarce human and financial resources go into a frenzy of activity trying to get better
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community members, elected officials to the DEC asking for such a hearing. Sometimes
they say yes, other times no. The time and resources spent on getting DEC to agree to a
hearing would be better spent analyzing the permit, educating community members about
the permit and the Title V process and preparing comments.
MS. KADERLY: Shelley Kaderly with the State of Nebraska. I was wondering whether
you were provided a reason why you were denied a request for public hearing.
M. Boyd, CARE: Yes. It's in my response. Basically they said that the information I was
seeking wasn't relevant, that the NOV wasn't relevant to the — to my comment basically,
that it wasn't relevant to the — that I could have still — they still provided me — they claim
they still provided me enough information to provide both meaningful and informed
participation, my position being that they provided me an opportunity for maybe mean-
ingful at a stretch, but they didn't give me informed participation because they didn't
provide me the records.
Alexandra Gorman, Women's Voices for the Earth: It's [our State agency is] also very
amenable to public hearings on Title V permits. We've requested those a few times in the
past and they have always granted those. So that has been — not been a problem in my
experience with Title V.
MS. POWELL: You said that Louisiana has denied requests for public hearings and I
wondered what kind of standard Louisiana is applying in deciding whether a hearing is
warranted.
John Suttles, Tulane Environmental Law Clinic: Well, I'm not sure. I can give you a
fairly recent example of one that really rankled a lot of members of a community group
that represents about 2,000 people. ExxonMobil had applied for what they call a Clean
Air Act commitment permit that was 14 Title V sources — there were 12 Title V sources
they were rolling into a single permit and they announced that there was going to be a
town hall informational meeting. And at the meeting they were specifically asked —
DEQ was present and Exxon's PR department was present — and they were specifically
asked do you propose this in lieu of a public hearing, because we would object if you do.
We don't have the information we need to make adequate comments and we're not pre-
pared to participate in a public hearing at this time. We're just seeing these permits for
the first time. We were assured that was not the case. We filed written comments on
behalf of one of our member groups, and the members — some of the individual members
and the group itself requested a public hearing. It was denied, and one of the reasons for
the denial was that there had been this town hall meeting. So it's hard to say — that was
under the prior administration. And the current administration seems to be trying harder
to engage the public a bit more. But I can't say what standard the old administration
operated under. But it shouldn't be — this type of thing should not be at the whim of an
administration. There should be more of a consistent rule that the public can have some
faith be applied across the board.
John Suttles, Tulane Environmental Law Clinic: Finally, regulatory agencies must re-
spect citizens' right to public hearings. In Louisiana there are many people affected by air
pollution who lack the formal education and training to provide meaningful written
comments, yet they're deeply concerned about their health, their family's health and the
well-being of their community. Nevertheless, regulatory agencies often refuse to hold
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public hearings by stating that the Clean Air Act merely requires an opportunity to re-
quest a hearing, it does not guarantee a right to a public hearing. To be effective in Lou-
isiana, however, regulators must — they cannot take such a dismissive approach to public
involvement in permitting decisions.
Deborah Masters, Community Board 1, NAG: Another Title V permit, Diamond As-
phalt, we call this company DAC. The company proposes to reopen adjacent to the
sewage treatment plant, also in the heaviest industry area two blocks from an EJ commu-
nity. It will produce one-third of New York City's asphalt. DEC did not attend the public
information meeting. There was no transcript. 35 community members made educated
statements based on a careful reading of the air permit. Ten politicians or their represen-
tatives also asked educated questions and made informed statements. Yet we were not
granted a public hearing.
Peter Hess, Bay Area AQMD: I'd like to conclude my remarks by touching on an area
that we think is working very well within the Title V program. And that is the manner in
which a decision is made to hold public hearings for proposed permit actions. A public
hearing can be a useful way to solicit comments on a proposed permit; but effective
hearings can be very resource-intensive because of the required extensive outreach and
need to be held in community locations during after-work hours. Currently in the Bay
Area, we even hold workshops to educate the public on how to comment and inform
them of the Title V permit process. The current regulations — giving the permitting
agency discretion to deny a request for a public hearing if public interest is limited or
adequate justification is not otherwise provided — is appropriate. Again, we believe this
approach is working very well.
Keri Bandies, Environmental Law and Justice Clinic: Our experience in the past has
been that when a facility is, I think, clearly a problem in the community, like the Red Star
Yeast facility or the refinery, that hearings are — the air district just goes ahead and holds
a hearing. But when that's not the case and the community — maybe a single member of
community or a public community member — asks for a hearing, the standard is a lot
higher; and public hearings haven't been granted as a matter of course in the Bay Area.
MS. OWEN: Going back to the hearing, I'm a little bit confused that the public has to
submit significant comments first and then have a hearing. Is there an additional public-
comment period after the hearing, or why do you hold a hearing after you receive com-
ments?
Jeff Kitchens, Alabama DEM: Well, we feel like if we can — if the public has comments
and submits those comments during public-comment period, and we can adequately
address those concerns, we see no need to hold a public hearing. Let me clarify a little
bit. In their comments, they have to specifically request a public hearing. It's just not —
we don't do it if we receive a large number of comments. The commenters (sic) have to
specifically request a public hearing.
MS. OWEN: How many hearings have you had?
Kitchens: Well For Title V permits?
MS. OWEN: Yeah, the last year or two.
Kitchens: Well I can't remember any.
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Jeff Kitchens, Alabama DEM: We hold public hearings when we receive significant
comments that are directly determined warrant a public hearing.
Susan Zingle, Lake County Conservation Alliance: The one thing I will praise the [Illi-
nois] EPA on, that they are generous with their public hearings. During the peaker-plant
process they just made a blanket decision that they were going to have hearings on all of
them. And although that's dwindled somewhat now that the crisis is over, normally if we
want a hearing, we get one without any kind of fuss. And I would encourage everybody
else it take that model.
Value of public hearings
Genasci, NW District Assoc. Health & Env: Overall we value Title V. We've been
through two hearings, two Title V hearings with the foundry. The most important thing
for us has been the public hearing requirement. This has given us a chance to really get
public awareness in the whole neighborhood. And also we feel that there's a very strong
right to know need for the neighborhood. The people who suffer from this kind of pollu-
tion need to know what it is they're breathing and they can go to the hearings. And we
have had excellent expert testimony there as well as the neighbors.
Peter Hess, Bay Area AQMD: Well, here on the Left Coast, people are very active in the
permitting. And we see, on the major facilities and the controversial facilities that are
facilities close to neighborhoods. And if there is an environmental justice issue related to
the facility, people want to have a hearing. They want to have a meeting. They want to
know. They want to express their concerns. Very seldom is there a resolution of the
issue at the hearing; however, the issues are placed on the table. And it gives the permit-
ting agency — us — and whoever else is in attendance, namely, the facility and the re-
gional office, a good sense of what the issues are at the facility. Some of those issues
cannot be resolved in the Title V issue — they're outside the Federal enforceability, like
odor nuisance or something like that. But at least they're brought to the attention; and it
can be addressed elsewhere.
Melissa Scanlan, Midwest Environmental Advocates: From a community activist per-
spective, there are also significant benefits from this program. I have helped several
community groups comment on Title V permits, and it's been a good process to educate
the public about what's really going on with the facility in their neighborhood. In La
Crosse, Wisconsin, just as one example, over 50 people showed up to testify on a Title V
permit for the French Island incinerator, which is a municipal waste incinerator. The
Title V permit and the hearing process definitely helps make the regulations, which are
very complicated, make the regulations clearer and more transparent for the general
public.
Lyman Welch, Mid-Atlantic Environmental Law Center: I think that both the agency and
our organization learned a lot about the Title V program by going through that process.
There were many people when we had a public hearing on this. Many people came out to
speak, to talk about the problems of air pollution and the impact on them from this facility,
and by having the Title V program involvement, I think it was helpful. One of the things
that came out of this process is that Delaware is now looking at developing new laws to
reduce pollution from power plants, because they found that existing laws were not actually
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able to reduce the pollution that was coming out of coal-fired power plants, and that new
laws were required. So, when the public came to complain, one of Delaware's responses is,
well, we can't do much under current law, but we're taking a look at new laws to actually
accomplish pollution reduction. So, it helped us participate in the process, and one of the
problems is that here is part of Title V, and there isn't a lot as far as a coal-fired power plant
and there's not a lot of legal requirements that actually can be used to reduce the pollution
from that kind of facility. Hopefully, Delaware is now serious about actually trying to
reduce the air pollution through new requirements. We'll see if that actually comes to pass,
but that's what they said in response to comments on that.
Kathy Andria, American Bottoms Council: We view the public hearing as the most
important opportunity to ask questions because when we ask questions in a public com-
ment and written form, we never get any answers. In several cases they've extended the
public comment period, which we very much needed, given that we had so many within a
short time.
Merrijane Yerger, Clean Up Louisiana: As it turned out, when we had our public hear-
ing on this issue, we had the greatest turnout I believe the EPA said they had ever seen.
We had over just about 200, 250 people show up. And it was right here in the neighbor-
hood at a high school, and it can house that many people.
MS. HARAGAN: Hi, this is Kelly Haragan with the Environmental Integrity Project,
and I had a question about your public-participation comments. It sounded like when you
read that letter, someone was making a general comment about monitoring and asking for
a hearing and extra time to make more specific comments. Did you grant that request for
hearing or give them time to make more specific comments? I know when I try to review
some of these, you know, 200-page permits, a 30-day comment period is very short. So I
don't always have time to review everything, and extra time can help me make more
specific comments.
Amy Mann, Delaware DNR: We did hold a public hearing on this specific permit. I can't
remember off the top of my head if the three-day process was extended. But, typically,
what we'll do is, at the close of a hearing, if people express the fact that they need more
time to look at the requirement or to comment on issues that came up at the hearing, we'll
keep the comment period open for a few more weeks after the public — or the public
hearing closes.
Frequency of requests for public hearings
Mohsen Nazemi, South Coast AQMD: And public hearings have been requested for less
than two percent of our Title V permits. We have initiated a lot of meetings — public
consultation meetings — without any request, especially like for refineries because we
knew there was public interest. But, certainly, this level of participation does not consid-
ered as extensive but rather sporadic.
Heidi Hollenbach, Michigan DEQ: Public hearings aren't extremely common. I think in
our State maybe we've had 20 public hearings to date for Title V permits. A lot of times
the comments tend to be more New Source Review permitting comments that we can't
address through the Title V process. But I do believe if there are comments that are
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appropriate, that our staff try to make the appropriate change in the permit if it is relevant
and appropriate to do so.
MR. PAUL: We've had no requests for public hearings.
Notice of hearing
Bob Hall, Nevada Environmental Coalition: We have had some public hearings and —
well, first, let me put it this way. I shouldn't say public hearings. We've requested hear-
ings and then we go into a room. Those hearings are not published. No one else knows
about them. They have never published, to the best of my knowledge, publicly published
the hearing was ongoing, and that's at the county level.
Related issue: Pre-Comment Period Public Involvement
PALZER: Well, one of the points that he [Steve Murawski] made, and I was going to ask
a follow-up question, but I asked another one instead, but I thought I might ask you, he
was recommending that the EPA and the State agencies should have a pre-public
comment review by the prospective permittee before the permit is issued. That is to, you
know, to avoid problems that you have down the line later. My question to you is, do
you feel that it would be helpful for the public to be involved in a process before a public
hearing occurs, rather than getting a permit that's been negotiated between the permittee
and the regulatory agencies?
Bruce Nilles, Sierra Club: I think some additional safeguards to avoid sort of the situa-
tion where you have a public hearing, and it's sort of a fait accompli. That here is the
permit, and you basically take it. Because we've seen multiple instances here in Illinois
where the agency and the company show up at a hearing or right before a hearing and
say, "Here is the draft permit," and we raise very serious concerns, like where is the
underlying Title I obligations, and they're forced to rescind the entire permit and start
over. So from a resource perspective, there may be a lot of value in soliciting public
input at an early stage, avoiding the scenario like we've seen in multiple permits in East
St. Louis, where the permits come out, allegedly the by-product of a negotiation between
the State and the industry, we point out serious defects, and they're back to the drawing
board for another six months or more.
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5.4 Topic: Public Notice Throughout Process
Issue Observation/Description:
What This Paper Addresses: This paper addresses the degree to which public notifica-
tion of permit proceedings has been effective, the extent to which comments have been
made on permits, and what potential improvements could be made to address any prob-
lems that do exist in State implementation of notice requirements.
Legal Requirements: The Clean Air Act Amendments of 1990 provide specific require-
ments for public notification and participation in the Title V permit process to help ensure
that permits comply with the Act's requirements. Specifically, Section 502(b)(6) requires
permitting authorities to include in the State programs:
adequate, streamlined, and reasonable procedures for .. processing ... ap-
plications, for public notice, including offering an opportunity for public
comment and a hearing, and for expeditious review of permit actions, in-
cluding applications, renewals, or revisions, and including an opportunity
for judicial review in State court of the final permit action by the appli-
cant, any person who participated in the public comment process, and any
other person who could obtain judicial review of that action under appli-
cable law.
EPA implemented the above statutory provision in Section 70.7(h) of the Title V regula-
tions, stating:
Except for modifications qualifying for minor permit modification proce-
dures, all permit proceedings, including initial permit issuance, significant
modifications, and renewals, shall provide adequate procedures for public
notice including offering an opportunity for public comment and a hearing
on the draft permit."
EPA went on to require that public notice be provided:
by publication in a newspaper of general circulation in the area where the
source is located or in a State publication designed to give general public
notice [and] to persons on a mailing list developed by the permitting au-
thority, including those who request in writing to be on the list; and by
other means if necessary to assure adequate notice to the affected public."
40 CFR § 70.7(h). Part 70 also specifies a series of items that must be included in a
public notice, including (1) identification of the affected facility, (2) permittee's name
and address, (3) permitting authority's name and address, (4) the activities involved in the
permit action, (5) the emissions change involved in any permit modification, (6) contact
information for a person from whom interested persons may obtain additional
information, (7) a brief description of the comment procedures, and (8) the time and place
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of any hearing, including a statement of procedures to request a hearing (unless a hearing
has already been scheduled). Id. Part 70 does not provide for public notification of when
a permitting authority forwards a proposed permit to EPA for review or issues a final
permit. Nor does Part 70 speak to public notification of the start of the 60-day public
petition period.
Summary of Comments Received
Most of the comments on this issue were submitted by representatives of environmental
organizations ("environmental group commenters"). However, State agencies also com-
mented on the cost of newspaper notices and provided input on various ways they use to
apprise the public that a draft permit is available for comment. All of the environmental
group commenters emphasized the need for better public outreach. Three local agency
representatives and one State representative testified that they had received few or no
comments on their draft Title V permits.
Newspaper notices: Several State and environmental group commenters stated that legal
notices in newspapers are often ineffective at notifying the general public of permit pro-
ceedings. One local agency representative and two State agency representatives serving
on the Task Force noted that newspaper notices are very expensive and that their cost
seems high given how few people they appear to be reaching. However, two environ-
mental group commenters reported that there had been times when a member of the
public had come to them for help after reading a legal notice. Those environmental group
commenters who were asked whether they supported eliminating newspaper notices
indicated that they thought newspaper notices should continue to be required but could be
made more useful. They stated that there are many people who read newspapers but
don't use the internet. One environmental group commenter stated that a newspaper ad
written in plain, non-legalistic language is far more effective than a legal notice. ("If it is
so technical and it talks about Title V or CAAPP, people still don't know what that is.
Get it down to the level that someone reading the newspaper—say this is a power plant,
and this is your chance to talk about what it emits, and is it complying, and come to the
hearing. Market it a little bit instead of just narrowly complying with the technical lan-
guage in the law.") (Zingle). Two commenters urged the Task Force to recommend that
newspaper notices be published both in English and in the second language that is preva-
lent in the community where the permit applicant is located. Some environmental com-
menters were concerned that the limited geographic distribution of newspapers used to
publicize permit proceedings could lead to parts of the affected community never receiv-
ing actual notice of a permit for a facility in their area. An example given was of a facil-
ity located near the border of two communities, where notice was provided only in the
newspaper applicable to one of the communities. One commenter explained that his
State applied a "critical mass standard" in deciding whether to hold hearings, and the
limited geographic scope of the newspaper notices "generally results in no one, other than
our organization, requesting a public hearing." Thus, the commenter reported that public
hearings on Title V permits were almost never held in his State. Several commenters
stated that it was difficult to know which paper was the "official" paper where public
notices would appear.
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Internet notices: In general, environmental group commenters were highly supportive of
State efforts to publicize permit proceedings using the internet. Both State and environ-
mental group commenters described helpful State websites that include information
regarding where permits are in the permitting process as well as key documents such as
draft permits and statements of basis. Several environmental commenters stated that
email notification of permit proceedings is very effective. While supporting internet
tools to provide notice, when asked these environmental group commenters stated that
newspaper notices were still important. Several commenters expressed concern that
while email notice is a great way to alert employees of environmental organizations,
other members of the public may not have regular internet access. One commenter clari-
fied that it is insufficient for a State merely to publish a notice on their website without
providing direct notification to interested individuals.
Mailing lists: Some commenters indicated that they had asked to be placed on mailing
lists or had subscribed to internet email notification devices that had worked well in
providing them with notices on particular facilities or on all facilities in a State. Several
environmental group commenters suggested that permitting authorities should maintain a
mailing list that includes not just people who notify them in writing that they want to be
included on a mailing list, but also other potentially interested parties such as community
groups, environmental groups, local government entities, churches, and individuals who
have participated in prior permit proceedings affecting the permit applicant. Two com-
menters criticized their State agencies for failing to notify them of the start of the public
comment period on Title V permits for particular facilities, even though these comment-
ers had previously been involved in other types of permit proceedings affecting these
facilities and were clearly concerned about these facilities. One commenter reported that
her State was not complying with the requirement to maintain a mailing list of interested
parties. One local agency commenter and one State agency commenter reported that their
agencies maintained a broad mailing list of all parties that they believed might be inter-
ested in a permit proceeding.
Other forms of public outreach: Some commenters noted that States had held public
information meetings in advance of a draft permit in order to help the public around a
particular facility understand the Title V process. A suggestion made in the testimony
was for permitting authorities to enlist the assistance of community and environmental
organizations in notifying affected communities of upcoming permit proceedings. One
environmental group commenter suggested that notices should be posted at public librar-
ies. One State agency representative on the Task Force explained that his agency re-
quires permit applicants to post a notice of their upcoming permit proceeding on the
outside of their building, and one environmental group commenter confirmed that she
thought that was a good idea. One environmental group commenter suggested that per-
mitting authorities should contact potentially interested parties by phone. One environ-
mental group commenter suggested that permitting authorities should ask radio and TV
stations to run public service announcements. One environmental group commenter
noted that she only knew to look for Title V notices after attending an EPA training
session on how to review Title V permits (and the author of this paper reports that nearly
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all of the environmental commenters have attended such a session at some point during
the past five years).
Ability to track upcoming permit proceedings: One environmental group commenter
stated that it would be helpful if there were a way that his organization could know when
permits for various facilities were likely to be ready for public review, so that the organi-
zation could plan out its work on Title V permits.
Public notice offinal and proposed permits/start of public petition period: One envi-
ronmental group commenter reported that he had filed comments on a draft permit, but he
did not receive notification of when the permit was proposed to EPA or of when time
period for petitioning EPA to object to the permit began. He had an expectation that the
permitting authority would have communicated with him when these milestones in the
process occurred. He stated that because the permitting authority failed to notify him of
these actions, he missed the deadline for filing a petition for an EPA objection and in-
stead had to depend on EPA's willingness to reopen the final permit. An industry repre-
sentative on the Task Force indicated that typically a permitted facility is also not given
any notice that its permit has been forwarded to EPA or when the time period for peti-
tioning to EPA to object to a permit would begin and end.
Public notice delay: One industry commenter voiced concern about the delay in getting
a public notice published.
Discussion
Alternatives to newspaper notice: State agency Task Force members noted that newspa-
per notices can be very expensive in large metropolitan areas and are not necessarily
effective in communicating with the public. One industry member stated that at least in
smaller towns, newspaper notices seemed very effective and not too expensive. A State
agency member indicated that in larger urban areas, a newspaper notice can cost as much
as $5,000 just for a small legal notice. Another State member explained that in a large
urban area in his State, the notice could cost as much as $10,000. These members ex-
plained that this was the cost of a notice in small print in the legal section of the paper; a
notice printed in larger print in a different section would cost even more. Thus, these
members believed that it was unreasonable for the Task Force to recommend that these
notices be expanded or made more prominent. All members present at the discussion
agreed that newspaper notices in large urban areas were very expensive considering
testimony and personal experience suggesting that these urban notices do not seem very
effective at alerting people to permitting actions.
The Task Force spent a significant amount of time discussing whether it would be feasi-
ble to allow permitting authorities to replace newspaper notices with other public notice
mechanisms under certain circumstances. Several members expressed concern that at
least with a newspaper notice, all community residents at least have the opportunity to
find out about a permit proceeding. By contrast, other notification mechanisms have a
more limited audience. These members recognized, however, that in reality, the vast
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majority of residents in urban areas did not read a newspaper's legal notices. Several
alternatives were discussed. One industry member noted that the legal requirement is to
provide notice either in a newspaper or in the State's analog to the Federal Register.
Thus, this member suggested States that have a "register" type document could use that
rather than newspaper notice and then find other, more effective ways to alert the public
around a facility with the money that would have been spent on the newspaper notice.
One pointed out that an ad on a cable television station is much less expensive than a
newspaper notice, and that such an ad would probably reach many more people. Another
Task Force member pointed out that the problem with a TV ad is that it goes by very
quickly and you usually don't have time to write down information before the ad is over.
A Task Force member suggested notices in utility bills. Several members agreed that
utility bill notices were fairly effective, but that such a notice may not be published in a
timely fashion. Task Force members discussed a variety of other options, including
enlisting community groups to circulate notice of permit proceedings, posting notices at
grocery stores, day care centers, and community centers, and circulating a press release
announcing a public hearing, if one is to be held. One State agency member informed the
Task Force that from what he has seen, his State's requirement that a source post notices
around the perimeter of the facility is far more effective at notifying the public of the
permit proceeding than is a newspaper notice.
In discussing the possibility of a recommendation that EPA revise its rules to authorize
permitting authorities to replace newspaper notices with other public notification mecha-
nisms, Task Force members sought to craft a recommendation that would account for the
tremendous variability among communities (e.g., whether or not internet access is uni-
formly available). In communities where it was feasible to publish a larger-sized notice
than the typical legal notice, most Task Force members believed that these notices were
probably fairly effective and should be continued. Task Force members agreed that the
problem was with tiny but expensive legal notices in large urban areas. Members agreed
that the effectiveness of a particular type of notice would vary depending on a commu-
nity's demographics and geography. One Task Force member suggested that perhaps
EPA could undertake a pilot project designed to find out what types of public notices
work best, e.g., by surveying people who attend a hearing to find out how they found out
about the proceeding. Other members voiced concern that how people ultimately find out
about a particular permit proceeding is often unique to that proceeding, and that it would
be extremely difficult to translate a survey of public participation in one or even several
permit proceedings into a generalized finding of which types of public notice are most
effective.
Ultimately, all members present at the discussion agreed to a recommendation for EPA to
allow permitting authorities to replace newspaper notices with alternative notification
mechanisms, but only where the permitting authority finds that the alternative notification
mechanism will be "more effective in informing a cross section of the affected public
including those members lacking routine access to the internet." Task Force members
wished to emphasize that this finding was not to be a generalized finding for all notices in
a State, but that the permitting authority must instead "consider geographic and demo-
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graphic differences." Task Force members clarified that a decision to utilize alternate
notification mechanisms must be based on "objective criteria."
Newspaper Notice Content: Environmental group members expressed concern that
newspaper notices are not communicating to the public what is at stake in a particular
permit proceeding. One environmental group member explained that it is often difficult
to know from a public notice what type of facility is being permitted, and thus, it is diffi-
cult to determine by looking at the notice whether to get involved in the particular pro-
ceeding. Other Task Force members agreed that it would be helpful for a notice to spec-
ify the type of facility being permitted, e.g., a steel mill. All members present at the
discussion agreed to a recommendation that EPA require that a notice include this infor-
mation.
The Task Force also discussed a recommendation made in testimony that notice content
be expanded to better inform the public of how they can participate in the permit pro-
ceeding. An environmental group member explained that, aside from representatives of
the regulated facilities, most of the public does not know about Title V, and so it is im-
portant for the notice to explain what a Title V permit is and how a person can participate
in the process. Several State agency members suggested that newspaper notices were
already too expensive and that it would be prohibitively expensive to expand the content
of the notices—at least with respect to notices published in large urban newspapers.
Likewise, an industry member pointed to testimony by industry representatives that the
program is already extremely expensive, and suggested that it does not make sense to put
additional money into expanding newspaper notices since the vast majority of permits
receive no public comment. Environmental group representatives suggested that low
public participation is not indicative of a lack of public interest in industrial permitting,
but is due in part to poor public notice of what is at stake and how the public can influ-
ence the permitting process. Industry members and one State agency member suggested
that low public participation in the permitting process was not reflective of insufficient
notice, but instead indicates that the public generally relies on the State agency and EPA
to represent their interests and issue good permits and has confidence in the State permit-
ting system to record properly the applicable requirements.
One industry member stated that notices are not meant to "market" a permit proceeding,
but only to notify the public of the proceeding. Environmental group members disagreed
with that statement. Their view was that the public relies on agency officials to notify
them of when something is happening that may affect them and to educate them regard-
ing how they can influence the process.
Given the disparate views on this issue, the Task Force chose not to make additional
recommendations relating to the content of newspaper notices. However, many Task
Force members were able to agree on ways that a permitting authority could better inform
the public of Title V proceedings using other outreach mechanisms. Those discussions
are described below.
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Newspaper notice distribution: The Task Force also discussed how it might address
testimony describing circumstances where a facility was located near a county line, and
newspaper notice was published only in a newspaper serving the county in which the
facility was located, and not in a newspaper serving residents of the adjacent county.
One Task Force member pointed out that this issue also arises where a facility is located
near a State line.
One Task Force member suggested, and others agreed, that the best way to tie a recom-
mendation on this point to the existing Part 70 regulations would be to recommend that
EPA clarify that under circumstances where a facility is located near a county or State
line, the phrase "affected public" in § 70.7(h) includes residents of the adjacent counties
or States. See Recommendation #7.
Mailing lists: The Task Force spent a significant amount of time discussing testimony
that criticized permitting authorities for not providing notice of a permit proceeding to
people who had previously expressed concern about the facility being permitted. Envi-
ronmental group representatives suggested that permitting authorities should be required
to add someone to their mailing list if they have reason to believe that person might be
interested in the permit proceeding. While many Task Force members agreed with this
general concept, there was extensive discussion regarding how to identify people who
might be interested in a permit proceeding. Several members of the Task Force were
concerned about requirements based on such a vague standard and whether this could
invalidate a permit or a permit revision if it was later determined that the permitting
authority should have known that someone would be interested in a permit proceeding.
In addition, there were concerns raised about cost. In an effort to put more specific pa-
rameters around this issue, the Task Force discussed the possibility of requiring permit-
ting authorities to notify a broad range of people within a specified geographic range of a
facility, such as elected officials, day care providers, schools, community centers, and
public interest groups. Many Task Force members were concerned that such a require-
ment would waste agency resources because most of the people receiving these automatic
notices would not be interested in the permit proceeding. These members suggested that
outreach efforts should be focused on people who were more likely to be interested.
Some Task Force members noted that the rules already provide a way for interested
parties to receive notice of proceedings and questioned why people who are interested in
Title V proceedings would not sign up on the Title V mailing list that is required by the
rules. Environmental group representatives responded that most people do not know that
there is such a thing as a Title V mailing list. One member asked how States went about
notifying people of the opportunity to sign up on a mailing list. Task Force members
generally agreed that permitting authorities do not appear to be doing much outreach to
notify the public of the opportunity to sign up on a mailing list. One Task Force member
noted the testimony of South Coast AQMD which indicated that agency had done exten-
sive outreach but still did not received significant public comment. This Task Force
member took that as an indication that the lack of comment on permits could indicate that
members of the public are not truly interested in the permit proceedings, even with efforts
to get them interested.
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Ultimately, most Task Force members agreed to recommend that EPA strongly encour-
age permitting authorities to add people to their mailing lists who recently have expressed
interest in air emissions from the facility being permitted. The Task Force members
agreed that, among others, people who have commented on a construction or operating
permit for the facility should be included.
Internet notification: All Task Force members agreed that internet notices are very
effective as a supplement to newspaper or State register notices. Task Force members
agreed that internet notices should not replace newspaper and State register notices,
because some people lack regular access to the internet, or do not look on the internet
regularly enough to receive timely notice of permit proceedings. However, Task Force
members agreed that internet notices are the most effective way to notify environmental
professionals (including industry and environmental group employees) of permit pro-
ceedings. All Task Force members present at the discussion agreed that the internet is the
primary way that they learn about permit proceedings.
Task Force members agreed that some States have developed excellent websites that
provide notice of draft permits and permit modifications. Examples raised of good web-
sites were Indiana, Michigan and the San Francisco Bay Area Air Quality Management
District. An industry member pointed out that Pennsylvania provides its State register
online, but that this website is not as effective as the websites mentioned above because it
is difficult to download permit documents.
Task Force members noted that there are two ways that States use the internet to provide
public notice. Some States post public notices and relevant documents on a webpage.
Some States email interested parties when they update their webpage, or when the public
comment begins on a particular draft permit, or both. In addition, some States provide an
email notification regarding particular facilities to people who have expressed interest in
that facility, although the Task Force heard from one commenter that though he ex-
pressed interest to his permitting authority in certain facilities, he did not receive notifica-
tion of permit proceedings.
Ultimately, all Task Force members agreed to recommend that EPA encourage States to
utilize the internet to better publicize permit proceedings by providing guidance with
suggestions on how to do that. In addition to posting notices and certain permit-related
documents online, Task Force members thought that EPA should encourage States to
utilize the web to educate the public about what the Title V program is and how to par-
ticipate in permit proceedings.
One specific improvement that Task Force members agreed needed to be made with
respect to most State sites is better public notice of the opportunity to sign up on a Title V
mailing list. Several members noted that they seldom saw any information about Title V
mailing lists on State websites. One permitting authority representative stated that infor-
mation about the Title V mailing list is available on his State's site, but recognized that
this information was not provided in the same place on the website as other information
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about the Title V program. Task Force members generally agreed that it was important
for information about how the public can get involved in Title V proceedings to be pro-
vided in the same area of an agency's website where other Title V information is located.
Supplemental outreach efforts: The Task Force discussed whether permitting authori-
ties should be supplementing their traditional public notice with additional outreach
efforts. One environmental group member pointed out that the Part 70 regulations re-
quire that a permitting authority provide notice "by other means if necessary to assure
adequate notice to the affected public." Task Force members offered various ideas for
extra steps a permitting authority might take to better inform the public of a permit pro-
ceeding.
One industry member suggested that there should be a way to identify those facilities that
are likely to be of interest and to go the extra step with notice in those situations, rather
than creating broad recommendations to be implemented for every permit. That member
noted that the vast majority of permits (according to one State agency about 97%) re-
ceived no comments from anyone but the facility. An environmental group representa-
tive noted that the lack of comments on a facility's permit does not necessarily mean that
the facility is non-controversial, but may instead reflect poor public notice of the permit
proceeding. However, that representative did not object to tailoring supplemental out-
reach efforts to those facilities that are most likely to be of public concern. One permit-
ting authority representative indicated that his State knows which facilities are likely to
be controversial and supported the concept of tailoring supplemental notice recommenda-
tions to those facilities. One industry Task Force representative noted that a person's
view as to the adequacy of notice likely was related to their view as to what Title V
authorizes and requires. For example, a person who views Title V's purpose as simply
ensuring that all applicable requirements are incorporated accurately into a single permit
likely would view notice to be adequate if it was designed to reach people who were
interested in that somewhat limited process. On the other hand, those who view Title V's
purpose as including the addition of new requirements to address comments regarding
"compliance assurance" likely would want notice to go to anyone who was interested in
addition of such requirements to a facility's permit.
The Task Force then discussed when supplemental outreach might be appropriate. Many
members agreed that supplemental outreach may be warranted in some circumstances,
such as where a facility is located in a community that is disproportionately affected by
emissions from stationary sources, or where the permitting authority knows that the
facility being permitted is or recently has been the subject of significant public interest
due to its size and/or actual or anticipated environmental impacts. There was also general
agreement that additional outreach may be warranted if a facility had compliance issues
in the past. With respect to this last category, however, several members advocated
against recommending additional outreach whenever a facility has been found to be in
violation of a requirement. These members explained that permits contain numerous
recordkeeping and monitoring requirements and missing occasional records, while a
deviation that needs to be reported, is not an indicator that there is a compliance problem
generally with a facility. Moreover, they noted that EPA's high priority violator (HPV)
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policy has taken an approach that sweeps sources into the HPV category even if the
violations do not indicate exceedance of emission limits.
Recommendation #8 includes a list of supplemental outreach strategies with an indication
of when they might be appropriate, and suggests that EPA issue guidance to States re-
garding use of such strategies. Several members suggested that EPA's Office of Envi-
ronmental Justice should be involved in preparing this guidance. While this recommen-
dation identifies a variety of different supplemental outreach approaches, the Task Force
recognized that the effectiveness of various outreach methods would vary depending on
the characteristics of the community. In addition, several of the Task Force members
supporting the recommendation as well as those opposing it indicated that not all of these
methods are appropriate in all cases but that they need to be tied to the likely interest in
an individual facility and the resources required to implement them. In particular, per-
mitting authority representatives on the Task Force especially wanted to ensure that this
would be a menu of options from which they could choose and that EPA guidance would
not be perceived as being mandatory. In addition, an industry Task Force member ob-
jected to some of the language used in the recommendation. For example, she objected
to the suggestion that EPA ask States to make determinations about disproportionate
impacts from emissions. She also objected to the suggestion that States "know" whether
sources are violating requirements, unless the issue has been adjudicated, because often
those issues are disputed. She also felt that the suggestion that States "explain what can
be achieved through participation in the permit proceeding" was inappropriate, given that
the view on what can be achieved is tied to issues that are not resolved (e.g., the extent of
authority to add new requirements).
Notice of events after the close of public comment period: Environmental group repre-
sentatives felt strongly about the need for improved public notice regarding when a per-
mit moves from one step to the next in the process. These members explained that under
the current Part 70 rules, there is no requirement for a permitting authority to notify
commenters when it forwards a permit to EPA for review. Likewise, there is no rule
requirement that the permitting authority or EPA notify a commenter of the start of the
60-day period for filing a petition seeking the EPA Administrator's objection to a permit,
or of when a final permit is issued. They noted that some permitting authorities have
been known to wait for a year or even more before forwarding a proposed permit to EPA
for review after the close of the public comment period. Because the time lag between
the close of the public comment period and the start of the public petition period can be
significant, it is easy for a public commenter to lose track of where the permit is in the
process, and therefore, to miss all or part of the public petition period. Recommendations
#4 and #5 were designed to address this issue.
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Recommendations
Recommendation #1
State programs should be able to include in their rules alternatives to newspaper notifica-
tion, provided the alternative is more effective in informing a cross section of the affected
public including those members lacking routine access to the internet.
In Favor (17)*: Schwartz, Paul, Wood, Hodanbosi, Powell, Raettig, Owen, Morehouse,
Hagle, Freeman, Sliwinski, Kaderly, Broome, Keever, van der Vaart, Golden, Palzer
Opposed:
Abstentions:
Clarifications: Effectiveness needs to be evaluated based on objective criteria and con-
sidering geographic and demographic differences.
*Note: Number in parentheses () is the total number of Task Force members voting for this position.
Recommendation #2
The content of a public notice should include the type of facility (e.g., steel plant, chemi-
cal manufacturing).
In Favor (17): Schwartz, Paul, Wood, Hodanbosi, Powell, Raettig, Owen, Morehouse,
Hagle, Freeman, Sliwinski, Kaderly, Broome, Keever, van der Vaart, Golden, Palzer
Opposed:
Abstentions:
Clarifications'. Voting in favor of this recommendation does not indicate that other
improvements to the form of the notice are or are not needed.
Recommendation #3
States should improve their Title V websites to provide better notice and access to rele-
vant documents in a permit proceeding, emulating agencies that have developed websites
with information on public notice and draft permits. EPA should issue guidance to per-
mitting authorities with suggestions for how to utilize the internet to publicize permit
proceedings. That guidance should encourage permitting authorities to:
a) provide interested members of the public with the option to receive notifica-
tion of draft permits via electronic mail instead of traditional mail;
b) maintain a website that includes, among other things, public notices, draft,
proposed, and final permits, statements of basis, a table of draft permits out
for review and the date the comment period will end, the dates that final per-
mits are issued and will expire, and a description of any permit revision made
following initial permit issuance.
c) Include information on their website about what the Title V program is, how
to obtain more information about the program and the sources subject to it,
and how to sign up to be included on a mailing list.
In Favor (17): Golden, Paul, Palzer, Powell, Hagle, Schwartz, Morehouse, Raettig,
Owen, Wood, Keever, Sliwinski, Kaderly, Broome, Freeman, van der Vaart, Hodan-
bosi
Opposed:
Abstentions:
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(Clarification for Recommendation #3)
Clarifications: Freeman, Broome, and Wood clarify that listing of draft, proposed, and
final permits in (b) does not imply agreement that the draft and proposed permits need
to be separate documents or that serial review is required, van der Vaart supports
contingent to ability to provide alternates to newspaper notice rather than making this
a cumulative recommendation.
Recommendation #4
EPA should revise its rules to require that the permitting authority notify any person who
makes comments on the record on a draft Title V permit when it forwards a proposed
permit to EPA for review. That notice should inform the commenter:
• of when EPA's 45-day review period will end;
• that if EPA does not object to the permit, the State can issue the permit as fi-
nal;
• that if EPA does not object to the permit within its review period, the public
will have 60 days during which it can petition the EPA Administrator to ob-
ject to the permit;
• of the projected beginning and ending dates of the public petition period, as-
suming that EPA does not object during its review period;
• what happen if EPA objects to the permit, and
• of the availability of a document that describes any differences between the
draft and proposed permit and how to receive a copy free of charge (elec-
tronically or by mail, if requested).
The revised rules should also require a permitting authority to notify those same indi-
viduals when it issues the permit as final.
In Favor (9): Sliwinski, Palzer, Powell, Hagle, Schwartz, Raettig, Kaderly, Owen,
Keever,
Opposed (7): van der Vaart, Broome, Paul, Freeman, Wood, Golden, Morehouse
Abstentions:
Clarifications: Morehouse and Paul oppose because of the recommendation to revise the
Part 70 rules. Paul believes these recommendations should be best practices, but not
require rule changes. Freeman agrees that this information should be available to the
public, but does not agree with the recommendation for rule revision. Wood clarifies
he does not object to notification of those commenting, but does not believe a rule re-
vision is necessary or appropriate. Golden clarifies that, while he supports these as
best practices, he does not believe rule requirements are appropriate.
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Recommendation #5
I'lW should re\ise its rules lo require a permitlinu authority lo retain the name and mail-
inu address of tiny person who comments 011 a draft Title V permit, where such inlbrma-
tion is pro\ided In the commenter II" l-P.\ objects to the proposed permit durinu its 45-
day re\iew period. I'PA must notify persons 011 lhi.il list of the objection ancl (a) pro\idea
copy of the objection, or information reuardinu how a copy of the objection am be ob-
tained free of charue. (b) explain the process by which the objection will be addressed,
and (c) explain when the public will ha\e the opportunity lo petition l-IW to object to
other aspects of the permit, or lo the objectionable permit terms once they are rc\ ised
In favor (HI): Palzer. Sliwinski. Powell. I lade. Schwartz. Raettiu. Owen. kee\er. \an
der Vaart. kaderly
Opposed (6): Freeman. Broome. Paul. W ood, (iolden. Morehouse
. 1 Intentions:
Clarifications: Paul and Wood oppose because they belie\e that this recommendation
can be accomplished without re\isinu the Part 7<) rules (iolden and Morehouse clar-
ify that while they support these as best practices, they do not belie\e rule require-
ments are appropriate Broome opposes the rule chanue element and the mandatory
nature of the recommendation
Recommendation #6
I11 addition to notifying people who request to be included 011 a Title V mailinu list. I-PA
should stronuly encouraue permitlinu authorities to directly notify people (by puttinu
them 011 the mailinu list or otherwise) who ha\e recently expressed concern about the air
emissions from the facility People who ha\e expressed an interest in the air emissions
from the facility include, amonu others, those that commented 011 other air permits or
permit rc\ isions for the facility (construction or operating permits)
In l-'aror (15): llodanbosi. Palzer. Raettiu. Powell. kee\er. Van frank. |}roome. I lade.
Owen. Paul. Sliwinski. kaderly. (iolden. Morehouse. Wood
Opposed:
. 1 bstentions (I): I reeman
Clarifications: IJroome. Morehouse. Wood, and (iolden clarity that they do not support
a regulatory requirement in this reuard kaderly clarities that she supports this rec-
ommendation with the understandinu that the person expressing concern about the fa-
cililv has not requested that their name and address be held in confidence
Recommendation #7
EPA should clarify that where a facility is located near a county or State line, the term
"affected public" in § 70.7(h)(1) includes affected residents in the adjacent coun-
ties/States.
In Favor (12): Sliwinski, Powell, Keever, Wood, Schwartz, Palzer, Paul, Raettig, Owen,
Van Frank, Hodanbosi, Kaderly
Opposed (1): van der Vaart
Abstentions (4): Freeman, Broome, Hagle, Morehouse
(Clarification on next page)
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(("larificalion for Recommendation 7)
Clarifications: kaderly emphasizes lhat I-PA musl he clear as lo what il means to he
"near " I lodanhosi clarilles thai he is in la\or as lonu as there is a reasonable standard
applied to the notification re(.|iii rements for people in nearhy States (c.i;.. for a I a rue
source near a Stale holder, notification would not need to he any urcater than the im-
mediate neiuhhorinu couniv)
Recommendation #8
l-l\\ should issue unidance to pcrmitlinu authorities reuardinu how to implement the 4<>
CIR $ 7i).7(Ill's directi\e that notice he pro\ided "hy other means il" necessary to assure
adequate notice to the affected public " That unidance should encouraue permittinu
authorities to take extra steps to publicize permit proceedings, especially those that in-
\ol\e (l)a facility located in a community that is disproportionately affected by emis-
sions from stationary sources, particularly if the community is composed primarily of low
income or minority residents, or (2) a facility that has pre\iously been the subject of
significant public interest, or that the permittinu authority knows is now the subject of
significant public interest due to its size and or actual or anticipated en\ironmental im-
pacts. or (.i) a facility that the permittinu authority knows to be in persistent \iolation of
applicable emission limits Supplemental outreach efforts could include, anionu other
tliinus
a) contacting community uroup leaders and elected officials by telephone prior
to the start of the public comment period and in\itinu them to assist with out-
reach efforts.
h) postinu notice of the permit proceeding alonu the perimeter of the facility.
c) requestinu that local radio stations notify the public in a public ser\ice an-
nouncement:
d) postinu notices at locations that rccei\e significant foot traffic, such as urocery
stores, day care, senior, and community centers, and churches.
e) ensurinu that notices are written in plain lanuuaue. and that they explain what
can be achie\ed throuuh participation in the permit proceeding.
I") circulatinu a press release announcing a public hearinu. if a hearinu is to be
held.
u) publishing notices in both l-nulish and in any other lanuuaue spoken by siu-
nillcant numbers of people in the community where the facility is located.
h) pro\ idinu an outreach coordinator to take an acti\ e role in notifyinu the public
about permit proceedings, educating interested members of the public about
how they can participate, and responding to questions from the public about
permit proceedings in a timely manner.
i) where a lanuuaue other than l-nulish is spoken by a significant number of
people within the community where a permit applicant s facility is located,
publishing notice of an upcoininu permit proceeding in that lanuuaue in a pub-
lication printed primarily in that lanuuaue. and or circulatinu other outreach
materials to the affected community in that lanuuaue (in addition to l-nulish
notices):
(Recommendation continued on next pagej
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(Recommendation X continued)
j) periodically. hul ill least annually. undertaking outreach lo notify the general
public of the opporliinily lo sign up on a Title V mailing lisl. ()nlreach male-
rials should pro\ide basic information about the Title V program and how the
public can participate
In Favor (II): Powell. Palzer. Kee\er. Owen. Raettiu. Van I'rank. Sliwinski. Schwartz.
Ilodanbosi. Kaderly. I laule
Opposed Broome. freeman. Paul. W ood. Morehouse. \an der Yaart. (iolden
. \bstentions:
Clarifications'. Paul. Broome and I'reeman clarity that they support outreach when
appropriate but belie\e that it should be more targeted Therefore, their opposition is
not to the concept of increasing outreach but to the inclusion of such a wide range of
measures without specifically tying them to the need in a particular case Paul is also
concerned that I'PA guidance might be percei\ed as a mandate and that this list could
at most rise only to the le\el best practices to be selected by the permitting authority
on a case-by-case basis \an der X'aart opposes use of the word "supplemental" in
this recommendation if he used any of these suggestions. he would want to replace
something he is currently doing {i.e.. newspaper notices) Ilodanbosi. I laule and
Kaderly clarity that they are in la\or of this recommendation as long as the guidance
pro\ides examples 011 how lo impro\e the onlreach lo communities, and lliey would
oppose mandatory actions that must be completed by permittinu authorities. They
also note that while the recommendation pro\ides many good examples of ways to
impro\e outreach, they would be concerned about the resources needed to complete
all the acti\ ities that are identified Kaderly adds that resources would also be an is-
sue if the measures were mandatory.
Related topics: Response to Comments on Draft Permits, Public Hearings, Public
Access to Documents.
Attachment: Relevant Testimony
Usefulness and cost of newspaper notices
Lyman Welch, Mid-Atlantic Environmental Law Center: Lyman Welch, MAELC: Dela-
ware may be better than other States, even though we've had our problems there, but, you
know, just knowing when a Title V permit is available for comment or to ask for a hear-
ing, can be difficult. I mean, there are requirements to put legal notices in newspapers,
but not everyone is going to see those types of notices.
Welch: I think the newspaper public notice is important, and there are many people in the
community who don't have Internet access or do read the newspaper more often and see
those notices and would call us up or become involved through that newspaper notice.
Susan Zingle, Lake County Conservation Alliance: I think the newspapers have to be
done. Because there's the — the freaks like me that need to get a life and do this all the
time. The av— this is meant to benefit the average person in the neighborhood; and
they're not going to go to an Internet to look to see if there's a hearing on a permit that
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they don't even know exists. You have to get it in front of their face, and you have to get
it in terms that they can understand.
Zingle: People are very concerned about what goes on near them; and they are inherently
suspicious of something that — that — a big plant that may make noise or may emit things
near them. So the newspaper ads as opposed to the legal notices are a very good thing.
And the bigger they can be, the better. But there's been a new trick coming on where
they'll list several projects in one notice. And I think that that is confusing and unfair;
because you may read the top line and not realize that your project is farther down the
list. Each one deserves its own notice and its own explanation of what's going on there.
Steve Hagle, Texas: "in Texas we do a newspaper notice elsewhere in the paper, some
other section of the paper; and it's just a very short notice, a little blurb. And it directs
people to the legal section where we have a long explanation of the processes that people
can go through, and what the facility is emitting, and all of that kind of information. And
that's — in some of the major cities like Houston and Dallas that's a pretty expensive.
Now for the Dows and Exxons of the world, that may be okay. But we do have some
smaller Title V sites, and we're talking 3- to 4,000 dollars for that notice, especially the
piece elsewhere in the newspaper. And so — and what we found is we really don't get a
lot of comments or responses to the notice."
John Suttles, Tulane Environmental Law Clinic: "Well, of course, there are public notice
requirements and sometimes the public will come to us with a permit that's been noticed
in their local official journal, which, by the way, is not a terribly effective method. I don't
know how many people even know what their official journal is. But sometimes the
public will come to us having seen a permit that's been proposed. You can also, in Lou-
isiana, you can ask the Department of Environmental Quality to send you public notices
either for any permit they're considering or permits in a particular area or permits that
pertain to a particular medium. So we typically get them from the Department of Envi-
ronmental Quality. Sometimes we will — that's got been a perfect technique. Sometimes
we don't get a notice for one reason or another, but we check the web site periodically.
So between those two methods we hope to catch most or all of the permits that are pro-
posed."
Peter Hess, Bay Area AQMD: The first issue I'd like to address is public noticing re-
quirements. We feel that these need to be modernized. Newspaper noticing requirements
are largely an ineffective means of outreach. They also can be very expensive. The use
of Internet postings or e-mail distributions should be allowed as an alternative. We feel
that the permitting agency should be given the flexibility to use other creative means of
notifying, based on input received from community groups.
R. PAUL: Very quick. Part of the fact-finding role here. Do you know how much your
agency spends on public notices that are published in the newspaper per year?
MR. HESS: Yes, I do. And I would provide that to the committee.
MR. PALZER: Thank you for coming. You mentioned that there should be different
approaches to having public notice. And it seems to me that in the use of the Internet,
would certainly be a good way of doing that. And I have a question: How would you
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suggest getting out a notice by the Internet, keeping in mind that there is a segment of the
society that isn't plugged into the Internet?
MR. HESS: Yes. And we have faced that problem. And what we have done is we've
used the community groups who are interested in providing notice to neighborhoods.
We've enlisted the support of neighborhood groups and — to get out the word to people
that we're having a hearing, come, voice your — your — your opinion on the permit. It's
very important to have public participation. And we do not want to — shall we say, sty-
mie or limit that; but there are better ways to get the word out to people that we're going
to have the hearing, whether it's direct mailing or — but newspapers are not the only way
to do it. A lot of people don't read newspapers anymore.
MR. VAN DER VAART: But I also agree with the use of the Internet as a less expen-
sive way than newspapers. It's an amazing cost.
Bulletin notices
Lyman Welch, MAELC: In Pennsylvania, stuff is published in the Bulletin, but there is no
way that you can track when a Title V permit is coming up for review. We've called Penn-
sylvania and asked them, you know, how do we know what facility is coming up? And it's
like, there's no way. We don't know. Even the engineers are working on permits. They
don't know when they are going to be made available for public comment, and they've got
this — they have sort of a website system, but it doesn't really work for commenting on
permits or when comment deadlines become open. So from a State point of view, it's — you
know, you have to get the Bulletin where they put the legal notices, but there's not an easy
way for citizens to find out, you know, when can we ask for a hearing? And often, dates are
missed; hearings are not requested, because the date passes and then the thing is put in final
form, and citizens just don't have that opportunity.
Overall level of interest and comment on Title V Permits
Michael Lake, San Diego County APCD: I would note that when we issue Title V per-
mits, we do provide public notice of those proposed permits, and this includes significant
modifications to Title V permits. We provide website notice, and we also provide direct
notice to interested parties that have indicated their interest in receiving notice of Title V
permits. And, to date, for all the Title V permits that we've issued, we have received no
public comment, we've received no public objections or expressions of any public or
interest-group objections or areas of concern.
Chris Korleski, Honda: And it's a good question, because — and I'm going to struggle
with that, because, to my knowledge, we've never had a comment. We sometimes re-
quest our own public hearings to expedite to getting a permit through. But we've never
had public comments on any of our permits. ...
Mohsen Nazemi, South Coast AQMD: And I'd just like to quickly go to public participa-
tion. The Title V program provides for an increased opportunity for public participation
and other citizen actions in case of noncompliance. The goal of enhancing public partici-
pation and one that we truly support. And as a leader in environmental justice program,
we have held town hall meetings in — many town hall meetings — in areas to address
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specific concerns by the communities. However, we have had mixed results with our
public participation in the Title V program. To give you a sense of EPA and public
participation of the Title V program, we have issued — sorry — Title V permits we have
issued today, we have received comments from EPA on about five percent of our permits.
Public and environmental organizations have provided comments on less than three
percent of our permits. And public hearings have been requested for less than two per-
cent of our Title V permits. We have initiated a lot of meetings — public consultation
meetings — without any request, especially like for refineries because we knew there was
public interest. But, certainly, this level of participation does not considered as extensive
but rather sporadic.
Bill O 'Sullivan, New Jersey Dept. of Env. Protection: Public outreach. We don't get
much public interest in our permits.
MS. BROOME: Have you had any public comments [on any draft permit]?
MR. PAUL: Not that I'm aware of.
MS. BROOME: That's why I said it's kind of asking for something that you probably didn't
think about before you came in here.
MR. J. PAUL: I know we've had comments from the region. I know we've had comments
from the company. So I don't think we've had any comments from the public.
Heidi Hollenbach, Michigan DEQ: Public hearings aren't extremely common. I think in
our State maybe we've had 20 public hearings to date for Title V permits. A lot of times
the comments tend to be more New Source Review permitting comments that we can't
address through the Title V process. But I do believe if there are comments that are
appropriate, that our staff try to make the appropriate change in the permit if it is relevant
and appropriate to do so.
Use and effectveness of electronic notices
Heather Abrams, Georgia EPD: "We post [the notice] on our website."
Lyman Welch, Mid-Atlantic Environmental Law Center: But the website and Internet
notice, I think, should be in addition to the newspaper or legal notice, and, ideally, I would
like to have a website where it would put, here's a notice of the facility, and, in the ideal
situation, you'll be able to click on that and get a copy of the draft permit, as well as the
statement of basis or the technical memorandum.
Welch: In Delaware what they done is, they've established a website, and on that website,
you can go and you can look at all the public notices that are currently open. So, for any
facility that currently you could comment on or ask for a hearing on, you can go to a page on
DNREC's website and it will list all the public notices that, you know, are just basically an
electronic copy of what was printed in the paper, and it's available on their website, and you
can click on it and see how to go about requesting a hearing. So, if I'm on vacation for a
week or two, and I come back and I say, well, what's going on? I can click on this web page
and I can see, well, here's what I could comment on or ask for a hearing on. The public
finds this very valuable, instead of trying to look through the paper every day to figure out,
you know, if there is a public notice going on. Also, Delaware allows you to sign up so that
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you can get e-mail notices, so when they put a public notice on the website, I get an e-mail
that says here are all the public notices that have gone up this day. And, you know, I use
that; I subscribe to that; I get these notices, and that's very valuable. I don't think every State
offers that opportunity.
Welch: All right, EPA has done a good job when it gets to their level. They have a
website of noting, you know, here are the permits that are under our review; we got them
on this date and we've got a 45- day review period, and it ends on this date, and then
there's a 60-day public petition period that's open. And EPA has a good — at least in
Region III, anyway, has a web page that you can get all that information from, and it's
updated every week or so, and that's helpful. I guess the problem is, from the public
standpoint, is that EPA would prefer that we get involved at the State level, and if the
States don't notify us about when we can ask for hearing, then all we're left to do is, well,
we have to petition the EPA to fix the problem that would have been better corrected at
the State level, and EPA doesn't like that.
Kelly Haragan, Environmental Integrity Project: On the notice and getting things up on the
web, I think that's fantastic and one of the best things that you can do for public participation
because, first, it makes sure that all of the documents are really there when you put them up
on the web. It is a lot easier access. If people don't have computers at their homes, they can
still go to the agency and pull the documents up on the agency's computers or in the files.
But, for a lot of people, they do have computer access and it makes it so much easier to be
able to pull the notice, the draft permit, the underlying permits off the web. I know Texas
started a notice process where they've got a webpage. At least all of the facilities that have
been authorized to go to public notice, so it's actually a little bit before the 30 days actually
starts. It's a great system because you can actually go and look and see which facilities are
going to be coming up for notice and you can plan a little bit for how you want to comment,
which ones you want to prioritize.
Jeff Kitchens, Alabama DEM: "[W]e put the — we put our statement of basis, public
comments, and public notice in the draft permit on our website which can be downloaded
free of charge."
Scott Gollwitzer, Appalachian Voices: I would like to commend [North Carolina] DAQ
for doing an admiral job in providing interested parties electronic notification of draft
permits. Specifically they provided a copy of the draft permit and the permit application
review at the same time they provide notice that the permit is open for public comment.
Heidi Hollenbach, Michigan DEQ: Public participation is an important component of
Title V. In Michigan, all draft Title V permits are public noticed both on website and in
the department's calendar, a bimonthly publication mailed and e-mailed to a large con-
stituency. Controversial permits are also noted in the newspaper and/or through direct
mailing. Information regarding the date by which EPA must receive petitions is also
outlined on the permit web page.
MS. HARAGAN: Do you know — do you think providing more documents electroni-
cally on the Web is a useful thing?
Bradley Angel, Greenaction: I do. I think that's important. But realize, again, that a lot
of community folks — particularly in the three case-examples I mentioned briefly — it
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wouldn't have helped a lot of the people there, but it certainly is something; and it's easy
enough to do.
Swati Prakash, West Harlem Environmental Action: I think that e-mail alert — I don't
know if environmental news bulletin has — I don't know how — I don't know the details
of how this would work, but there are a lot of groups that are lucky enough to have staff
like we have. A lot of us do use e-mail on a fairly regular basis, and it's just one step.
There could be some sort of alert for any time a Title V draft permit is issued.
Notice Content
Susan Zingle, Lake County Conservation Alliance: If the law requires public notice in
the newspapers, then — then I still think it's valuable. I think a lot goes in to how it's
worded. If it is so technical and it talks about Title V or CAAPP, people still don't know
what that is. Get it down to the level that someone reading the newspaper say this is a
power plant, and this is your chance to talk about what it emits, and is it complying, and
come to the hearing. Market it a little bit instead of just narrowly complying with the
technical language in the law.
Geographic Scope of Notice
Scott Gollwitzer, Appalachian Voices: In North Carolina, the public notice net is cast in
very narrow geographic range. The circumstance generally results in no one, other than
our organization, requesting a public hearing. This allows the director of DAQ to
impermissibly use a critical mass standard to determining whether to hold a public hear-
ing.
... DAQ should make every effort to cast the widest net possible in terms of soliciting
public comment. This could be accomplished by broadly defining the affected commu-
nity. Although no bright line has been established for defining the extent of an affected
community, the Clean Air Act provides some congressional guidance. For instance,
section 766Id requires that the permitting authority submit proposed permits to States
lying within 50 miles of the polluter. Hence, at a minimum, DAQ should provide public
notice in all communities lying within a 50-mile radius of a polluter. In casting this
wider public net, the public will be well served if DAQ would enlist the help of radio and
TV stations that regularly run public service announcements. Likewise, where appropri-
ate, public notice should be announced through non-English speaking media outlets. The
public benefit associated with casting this wider public notice net cannot be overstated.
Our experience to date demonstrates that if each county within 50 miles of a particular
polluter were included as part of the affected community, DAQ would be better equipped
to achieve the spirit of Title V's environmental justice considerations. In fact, when one
calculates the number of low income African-American and Latin — excuse me, Latino-
American residents within this broader affected community in North Carolina, one in-
variably finds a disproportionate number of one or more of these subsets of North Caro-
lina's population residing within the shadows of the polluter's facility. I would like to
mention another less obvious benefit of casting this wider net. If one considers the fact
that many polluters are large employers within the immediate vicinity of their facility,
there's little doubt that many residents are intimidated for fear of losing their job or an
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Public Notice Throughout Process
opportunity to get one to speak out against any polluter. These fears, whether real or
imagined, have a chilling effect on the public's willingness to engage in the Title V proc-
ess. Casting a wider public notice net will not only alleviate this chilling effect, but
would go a long way to ensure — and I'm quoting EPA here — that no group of people,
including racial, ethnic or socioeconomic groups should bear a disproportionate share of
the negative environmental consequences resulting from industrial, municipal, and com-
mercial operations or the execution of Federal, State, local, and tribal programs and
policies.
Kathy Andria, American Bottoms Council: I wish there were some way of making uni-
form what is a paper of record. Things go into a community, and if it's a little town that
it's that newspaper that gets it, I mean, there is not a wall around there. The next commu-
nity over doesn't get that paper, but they're breathing that air. So I think there needs to be
better enhanced outreach on that.
Hamilton, Ogden Dunes: Additionally, according to Charlotte Reed of Save the Dunes
Council, in the 14 years since the Title V program began, none of the largest permits have
been public noticed in our region. After expressing interest in the Title V process to both
IDEM and EPA at a meeting in our community last November, one or more Title V
permits in Burnes Harbor have gone through the public comment phase without our town
being noticed via mail or e-mail. Citizens clearly need more help through the process.
Alexandra Gorman, Women's Voices for the Earth: I have missed like a permit comment
period or two. One of the problems we do have in Montana, since it's a fairly rural State,
and the public comment notice, you know, requirements are to run in the local paper and
sometimes the local paper serves only a very small audience. So I work and live in Mis-
soula. There are often papers, they're not on-line, and I can't actually purchase them in
Missoula, so I sometimes I miss those public notices.
Friedman, Canary Coalition: The hearings were minimally publicized beforehand in the
local newspapers of the hearing venue despite the fact that the emissions from these
plants affect hundreds of thousands of people in large urban areas downwind of the facili-
ties.
Additional Public Outreach
Heather Abrams, Georgia EPD: "We have a listing of people we notify anytime that we
hold a public meeting ...We also do outreach in the communities themselves. We usu-
ally have a pretty good indication of those folks in the area that are interested, either
through past comments that we received or complaints that we received in that area. And
we have the phone numbers and addresses, and we'll send them letters to let them know."
Susan Zingle, Lake County Conservation Alliance: I think the IEPA still may be a little
concerned about the intensity of public comment. When all those speak peaker plants
were going on, they were contentious, and we went to hearings that routinely had 3- and
400 angry people. And the hearings routinely went on until eleven o'clock or midnight.
Well, so now it comes time for the Title V permit, all those people had to sign in to get
into that hearing. As a follow-up, did the EPA go back to those people and say, okay,
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Public Notice Throughout Process
this plant's been running now for a couple years and we've got its Title V permit, why
don't you come to the hearing and let's talk about it? No. They did not. Do they go — do
they get a GIS map or go to the tax assessor's office and look at the PIN numbers and get
those properties that are closest to the plant? No.
Steve Hagel, Texas: The other thing that we do in Texas is require them to put signs up
around the facility.
Susan Zingle, Lake County Conservation Alliance: That's a good idea.
Hagel. And those signs don't contain hardly any information except they're going to
build X, Y, Z here at the site. And that's where I feel like we get more comments from
the public, especially the local public.
Zingle: I hadn't even thought about signs at the site. That's a wonderful idea. And we do
that here with development permits; why wouldn't we do it with Title V or construction
permits as well? The follow-up on — on post cards aren't cheap exactly; but you know in
advance when that hearing's going to be. You could mail bulk. And you could mail to a
certain radius around that plant and have something go right into their homes. But again,
put it in layman's English; what this means to you as a citizen. Not the technical EPA
Title V language that nobody but people that have taken the course know what it means.
Marian Feinberg, Better Bronx: The DEC has failed to really set up an environmental
justice program and the EPA kind of pushed them to do that several years ago. There
were hearings held all over the State and one of the major things that people testified on
is this issue about community notification. And there were recommendations that were
raised at that time ... in New York City there's readily available lists from community
boards and from programs from city officials lists of community-based organizations,
lists of State-based institutions, et cetera. And it really needs to be broad notification to
the institutions that really the information conduits in the community. Posting something
in some obscure place on the DEC web site does not constitute public notification. And
the DEC, you know, I mean at least to notify people who testified at prior hearings at the
same facility, that would be nice. That would be an advance to where — you know, to
where we are now. They don't seem to take this question seriously at all. The informa-
tion, public information you know the whole idea of an informed citizenry is totally
essential to the issue of democracy and totally essential to the issue of really allowing
public comment Often community-based organizations and churches in our commu-
nity do not find out about a comment period until the last minute or even after a deadline.
Although I personally have helped organize the public outcry for a Title V hearing on the
NYOFCO plant two years ago and had testified at that hearing, even I didn't receive
notification that a comment period had now opened just this past fall for revisions.
Swati Prakash, West Harlem Environmental Action: So this is in reference to the Title V
permits for the North River Waste Water Pollution Control Plant, and April 27th of 2001
the nearest New York State DEC issued a notice of complete application for the draft
Title V permit for that facility, which the draft permit was noted in the May 2, 2001
edition of the New York State DEC's Environmental News Bulletin. I actually was not
aware of the Title V program at the time and I didn't make comments during that draft
period. It wasn't until I went through the Title V training cosponsored by EPA Region 2
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Public Notice Throughout Process
and the Earth Day Coalition in November of 2001 that I knew to be on the lookout for a
revised permit for North River.
MS. POWELL: So I had a question for you about community notification. You men-
tioned that is one of your key concerns and I wanted to know if you had some ideas about
what would be effective notification for the availability of draft permits and public hear-
ings.
MS. PRAKASH: Yeah. I think that e-mail alert — I don't know if environmental news
bulletin has — I don't know how — I don't know the details of how this would work, but
there are a lot of groups that are lucky enough to have staff like we have. A lot of us do
use e-mail on a fairly regular basis, and it's just one step. There could be some sort of
alert for any time a Title V draft permit is issued. Because right now what we have to do
— there's two ways that there's notification. One is you have to sort of check the envi-
ronmental news bulletin on a regular basis, which is not so practical, and then the second
is that they do send hard copies to the local community boards, which is one, I think,
good way to conduct community notification, but I would say it's not sufficient. So
there's e-mail list and then — if there's a way to expand the number of organizations that
receive hard copy, just letters even of notification directing people to either a web site, an
updated and accurate web site, or to the physical location of the permit, that would be
helpful. The permit — I believe revised permits were sent to — they were with one local
DEC office, they were with one local community organization, and it was with the com-
munity board. But if you're not sort of physically near those areas, it's hard, I think, to
stop by and read the copies in-house. That's just sort of off the top of my head response.
MS. POWELL: Just to let you know, Swati, I think that DEC maintains a mailing list
that you can sign up for, so you might want to get on that. So you think if they were
effectively maintaining a mailing list or e-mailing notification, that that would be
enough?
MS. PRAKASH: You know, there's a whole spectrum of community notification.
There's the sort of Cadillac version and then there's the, okay, we can live with this ver-
sion. And I think that good hard copy mailing list, good electronic mailing list, updated
web sites and — would be probably just as a threshold of adequate, yeah. And then
there's the next batch of things, which would be — the way I was notified ultimately was
through a phone call from folks, which I realize is not that practical, but that's another, I
think, resource for groups that really are not on-line regularly. And then finally, public
libraries actually — although they're severely underfunded — do serve as a source of
information for many communities. That's another realm that I think shouldn't be under-
estimated.
Bradley Angel, Greenaction: But public participation doesn't just mean you have a proc-
ess and you advertise it on the obituary page of a newspaper. It means that you actually
notify the community. It means that you actually notify them in the language spoken by
the community impacted by the facility for which a decision is being made.
... .There should also be, you know, real research into — for each particular community —
both languages, if there's multiple languages spoken; what are the media that absolutely
reach out; enlisting the help of community organizations in the impacted area.
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Public Notice Throughout Process
Scott Gollwitzer, Appalachian Voices: "In casting this wider public net, the public will
be well served if DAQ would enlist the help of radio and TV stations that regularly run
public service announcements. Likewise, where appropriate, public notice should be
announced through non-English speaking media outlets."
Notice ofproposed permit/final permit
George Hays: I see I have a couple minutes left, so let me just touch on another issue
that I had experienced that I find problematic. And that is the notice of the actual Title V
permits. I had a situation where we commented on a permit that the State in question was
proposing to issue, they got our comments and said they were going to address them. We
never heard another word from them. The State went ahead and issued the permit with-
out issuing any notice at all. And then EPA apparently published on its website the fact
that their clock had now started. There was no notice to any of the actual commenters,
which we were included with, that the permit had actually come out. And so that caused
a real problem for us because, number one, we didn't know about the Region 4 website.
Of course, we know about it now. But, number two, I think that this is a real problem —
that the agency — well, if your clock is going to start ticking, at least show notice to all
the commenters. That's a problem that I see. So I think that's something that you all
ought to correct as well. And I'll just leave it at that.
MS. VIDETICH: Hi, George. I think — can you clarify what happened under this notice
scenario that you were explaining at the very end. You commented, as I understand it, on
a State permit. They did not respond to your comment?
MR. HAYS: They did respond.
MS. VIDETICH: Oh, they did respond?
MR. HAYS: They responded to the comment and said, "We are going to address these
when we issue the permit."
MS. VIDETICH: Then you-
MR. HAYS: And then they waited to get the permit.
MS. VIDETICH: And you saw the EPA propose -
MR. HAYS: No, we didn't. What happened was that we went, you know — a few
months went by and we thought, "Gosh, whatever happened to that?" So then we did
some checking around and, lo and behold, found that the State had issued the permit
without providing any notice; that EPA had put it on their website for Region 4, which
we didn't know about so we weren't checking. So our clock expires. Then we petitioned
EPA anyway, saying that there was a problem with this; and we subsequently — we also
asked for a reopener if they didn't accept our argument that there was no notice. So what
EPA said was, "Okay. We're going to reopen this," thereby dancing around the notice
issue, because, you know, they basically were going to give us the relief that we want by
examining this without getting into whether there's a notice deficiency or not.
MS. VIDETICH: So are you here to talk about that particular instance or to State that
there's something wrong with this system and you need EPA or someone to address — the
Task Force — to address an overarching problem or not?
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Public Notice Throughout Process
MR. HAYS: I think there is an overarching problem. And that is that if you — if a citi-
zen comments on a permit, the citizen needs notice of when the State takes final action on
that permit, because their rights are going to be affected at that point. And, right now, the
way the system is set up, there is no notice that goes to the citizens, you know. The State
forwards the permit to EPA and that's it. But it's all, you know, an internal process, if
you will. And unless you're bird-dogging it every day or every week, you're not going to
know.
MS. VIDETICH: So you didn't even know when it got sent to EPA for its 45-day review
and when that review period was up?
MR. HAYS: We didn't. No.
Mailing list notification
MS. POWELL: I just had a question about public notice. Does Montana maintain a
mailing list to notify interested members of the public?
Alexandra Gorman, Women's Voices for the Earth: They don't maintain a list. There's
no Title V list for all Title V permits, but it seems to vary by department in DEQ. There's
some departments for certain type of permits where they do keep those main lists for
certain industry areas, but there's no consistency. So sometimes, you know, with certain
permit writers I have to write them and tell them, okay, anything that happens with this
facility, please let me know, and that sometimes gets me on the list, sometimes it doesn't,
but there doesn't seem to be any consistency there.
MS. POWELL: So you don't have the ability to sign up to just get notices on everything?
MS. GORMAN: That's right.
Public notice delay
D. Kalina, RR Donnelley. In addition to that, even though the comment periods may only
be 30 to 45 days, we have had delays — and this may sound trivial, unless you're — you've
got the backhoe out there waiting to start moving dirt around to do the installation —
where it has taken a week to ten days for the public notice to get out of the agency to be
published in the newspaper to begin the 30-day public comment period.
Related issue: Technical Assistance
Dona Hippert, Northwest Environmental Defense Center: I contacted someone at Region
10 EPA to see if I could get some technical help. They said that EPA had declined to
review the permit because nobody there really knew anything about Title VI. So I con-
tacted EPA's toll-free ozone hotline, but was never called back. And, by the way, some-
thing I would really like to State is that this sort of thing would be very helpful in the
Title
V program, preferably with someone actually returning the calls.
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Process Issues
Statement of Basis
5.5 Topic: Statement of Basis
Issue/Observation Description
EPA's implementing regulations for Title V require that each draft permit be accompa-
nied by "a statement that sets forth the legal and factual basis for the draft permit condi-
tions (including references to the applicable statutory or regulatory provisions)." The
permitting authority is required to send this "statement of basis" to EPA and "to any other
person who requests it."
40 C.F.R. § 70.7(a)(5).
The primary issues identified by the Task Force regarding statements of basis are:
• Are agencies producing statements of basis as required by the rule?
• What should be included in statements of basis at initial issuance, at renewal, and for
a permit revision?
• Is the existing statement of basis guidance adequate and is it being followed?
• How are statements of basis being used by the public, permittee and/or agencies?
Supporting Information
In the preamble to the proposed Part 70 rules, EPA explained that it could object to the
issuance of a permit where "the materials submitted by the State ... do not provide
enough information to allow meaningful review. . " 56 Fed. Reg. 21750 (1991).
While EPA headquarters has not issued guidance on the statement of basis requirement, a
variety of EPA orders on petitions for objection, letters and guidance exist on the issue.
One of the most detailed and specific is a guidance letter from EPA Region V to the Ohio
Environmental Protection Agency.
In December of 2001, the Chief of the Air Programs Branch in EPA Region V issued a
letter to Ohio providing guidelines on the "content of an adequate statement of basis
(SB) " In that letter, EPA Region V explained that:
. . . the regulatory language is clear in that a SB must include a dis-
cussion of decisionmaking that went into the development of the Ti-
tle Vpermit and to provide the permitting authority, the public, and
the EPA a record of the applicability and technical issues surround-
ing issuance of the permit. The SB is part of the historical permit-
ting record for the permittee. A SB generally should include, but
not be limited to, a description of the facility to be permitted, a dis-
cussion of any operational flexibility that will be utilized, the basis
for applying a permit shield, any regulatory applicability determi-
nations, and the rationale for the monitoring methods selected. A
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Statement of Basis
SB should specifically reference all supporting materials relied
upon, including the applicable statutory or regulatory provision.
(Emphasis added). While Region V did not provide an exhaustive list of what should go
in a statement of basis, the Region went on to discuss what it described as several areas
that are important to meet the intent of Part 70, including the following:
• Discussion of applicability and exemptions. "The SB should include a discussion of
any complex applicability determinations and address any non-applicability determi-
nations. ... If no separate determination letter was issued, the SB should include a
detailed analysis of the relevant statutory and regulatory provisions and why the re-
quirement may or may not be applicable. ..."
• Explanation of any conditions from previously issued permits that are not being
transferred to the Title V permit. If the permitting authority determines that an
"applicable requirement no longer applies to a facility or otherwise [is] not Federally
enforceable and, therefore, not necessary in the Title V permit in accordance with
EPA's 'White Paper for Streamlined Development of the Part 70 Permit Applica-
tions' (July 10, 1995) . . . [T]he SB should include the rationale for such a determi-
nation and reference any supporting materials relied upon in the determination."
• Discussion of streamlining requirements. "When applicable requirements overlap
or conflict, the permitting authority may choose to include in the permit the require-
ment that is determined to be most stringent or protective as detailed in EPA's 'White
Paper Number 2 for Improved Implementation of the Part 70 Operating Permits Pro-
gram' (March 5, 1996). The SB should explain why the State concluded that compli-
ance with the streamlined permit condition assures compliance with all the overlap-
ping requirements."
• Other factual information. "The SB should also include factual information that is
important for the public to be aware of Examples include: 1. A listing of any Title V
permits issued to the same applicant at the plant site, if any. ... 2. Attainment status.
3. Construction and permitting history of the source. 4. Compliance history including
inspections, any violations noted, a listing of consent decrees into which the permittee
has entered and corrective action(s) taken to address noncompliance.
(Emphasis added). The letter also stated that the statement of basis must contain "a
discussion on the monitoring and operational restriction provisions that are included for
each unit."
Although the letter was sent by Region V, the EPA Administrator has referenced the
guidelines in the letter in several orders on petitions for objection and other related
documents. EPA has also addressed the content of statements of basis in ways that are
not entirely consistent with the Region V letter in several orders responding to petitions
for objection.
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Statement of Basis
Testimony and Comments Received
The Task Force received a number of comments related to statements of basis. Generally
the comments indicated dissatisfaction with the quality of the statements of basis pro-
vided by some States, and complaints that some States did not provide a statement of
basis at all. There was variation among the States regarding the format and the label
applied to the statement of basis, as well as the means for public access to the document.
Although few comments were received regarding the substance of the guidance in Region
V's 2001 letter specifically, several commenters identified the areas addressed in EPA's
guidance as important to the statement of basis. One State (Ohio), however, objected to
EPA's development of piecemeal guidance through letters and responses to petitions, and
urged the Task Force to support use of Federal rulemaking proceedings to specify the
content of a statement of basis. Several State permitting officials also commented on the
burdens associated with producing detailed statements of basis. None of the comments
addressing whether the content of statements of basis for renewals and permit revisions
should be different from initial issuance.
The following is a summary of some of the specific comments received:
A number of commenters noted that a number of States were producing statements of
basis and that they were helpful. One commenter said that the statement of basis, or
technical memorandum, was very valuable and was the first thing he would review when
commenting on a draft permit. He also suggested that statements of basis be made avail-
able on-line. (L. Welch, Mid-Atlantic Env. Law Center). A number of commenters did
not believe that the statements of basis produced by some States were sufficient. For
example, several commenters said that the statements of basis they reviewed, which were
called a "project summary," did not provide sufficient detail and questioned whether the
format met the regulations. (S. Zingle, Lake County Cons. Alliance; K. Andria, Ameri-
can Bottom Conservancy). Another commenter also did not believe the statements of
basis they had seen, which summarized regulations but did not list the actual emission
limitations, provided enough specificity for public comment. (S. Prakash, WE ACT).
Another commenter noted that they often comment on programmatic issues, like the
failure to produce a statement of basis. (K. Haragan, Env. Integrity Project; see, e.g.,
OAR-2004-0075-0058). One commenter expressed frustration that differences between
items identified in the statement of basis, called the "Technical Support Document" in
Indiana, and the permit were not always explained. (R. Van Frank, Improving Kids'
Environment, OAR-2005-0075-0031).
Several commenters referenced submission of a petition for objection to EPA regarding a
statement of basis. One commenter stated that their petition to EPA regarding "inaccura-
cies and flaws and holes" in the statement of basis was quickly denied. (B. Angel,
Greenaction for Health and Env. Justice). Another commenter said that their petition on
failure to produce a statement of basis was granted. (M. Boyd, CARE).
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Statement of Basis
One commenter noted that one State (Kansas) required that the applicant include a state-
ment of basis with its permit application and that it was helpful to educate the permit
reviewer about the source. (N. Dee, National Petrochemical & Refiners Assoc.).
Several State permitting officials provided information on their treatment of statements of
basis. One State permitting official commented on the burdens of producing statements
of basis and that their usefulness depended on whether there was a significant prior per-
mitting history for the source, and how well the source of each applicable requirement is
identified in the permit itself. (M. Nazemi, SCAQMD; OAR-2004-0075-0091). Another
State permitting official commented that the statement of basis was extremely important
and that it is subject to the same management review as the draft permit. (N. Jerabek,
New Mexico Env. Department (NMED)). A State permitting official from Michigan
stated that they had developed "detailed template documents" for their permits and state-
ments of basis, which they refer to as the "staff report," so they have adequate detail and
consistency throughout the State. (H. Hollenbach, Michigan Department of Env. Qual-
ity).
The most detailed comments from a State permitting official were submitted by Ohio
EPA, which objected to EPA's development of piecemeal (and sometimes inconsistent)
guidance on the content of statements of basis, expressed concern regarding the amount
of resources needed to satisfy some of EPA's suggestions regarding the content of state-
ments of basis, and requested that EPA use rulemaking to clearly and consistently define
the legal requirements of a statement of basis. Absent rulemaking, Ohio EPA requested
that EPA issue national (not regional) guidance to clearly define the minimum elements
of a statement of basis. (R. Hodanbosi, Ohio EPA, OAR-2004-0075-0082).)
Several State permitting officials touched on the content of their statements of basis in the
context of testimony on other issues. One State noted that one of the issues they address
in the statement of basis is the streamlining of emission limits where there are overlap-
ping requirements. (H. Abrams, Georgia Env. Protection Division). Another State per-
mitting official said that they include a list of qualified insignificant activities in the
statement of basis and, where there are questions regarding MACT provisions, which are
incorporated into the permit by citing specific sections, that information is included in an
addendum to the statement of basis. (N. Jerabek, NMED). With respect to inclusion of
compliance history, one State permitting authority said that they would discuss compli-
ance history in the statement of basis if something was included in the permit as a result
of an enforcement action or negotiated settlement. (A. Mann, Delaware Dept. of Natural
Resources and Env. Control (DNREC)).
Several commenters stated that to the extent explanations of MACTs were provided, they
should reside in the statement of basis rather than in the permit language, which should
be limited to citations. (Alliance of Automobile Manufacturers, OAR-2004-0075-0056;
Air Permitting Forum, OAR-2004-0075-0074).
With respect to access to the statement of basis, one State permitting official said that
they make the statement of basis available on-line. (J. Kitchens, Alabama Department of
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Statement of Basis
Env. Management). Another State permitting official said that they have a hard copy of
the statement of basis at all of their offices and that they try to provide them in electronic
format when requested by email. (A. Mann, DNREC). One commenter noted that they
did not have any problem getting access to statements of basis because the public access
laws were very good in the State they were in. (A. Gorman, Women's Voices for the
Earth).
Task Force Discussion
The Task Force generally discussed the purpose of the statement of basis under Title V,
its content, and how EPA should address States that do not provide a statement of basis.
Regarding the purpose of the statement of basis, one environmental group Task Force
member explained that the statement of basis helps the public decide if a particular permit
is one that they should invest time and resources in reviewing, and that the information in
the statement of basis helps guide the public in focusing their comments on the most
significant aspects of the permit. According to the Task Force member, the statement of
basis also is an essential tool in helping the public understand permitting decisions, and
that decisions need not be complex to warrant explanation in the statement of basis. For
example, the Task Force member felt that it is important to the public that the statement
of basis explain why the permitting authority believes that the monitoring included in the
permit is sufficient to assure compliance with the applicable requirements or why certain
monitoring is not required.
One State agency Task Force member believed that the statement of basis is also useful
for permitting authorities because it documents why the permitting authority made the
decisions that it did in the past, which makes it easier for the agency employee charged
with handling future revisions or renewals. Since there is a lot of turnover in agency
staff, the Task Force member felt that the statement of basis provides vitally important
continuity to the process.
As for the content of the statement of basis, although the Task Force agreed that permit-
ting authorities would benefit from consistent guidance on the minimum criteria for
statements of basis, the Task Force did not agree on what those minimum criteria should
be or the mechanism by which EPA should communicate those criteria (e.g., guidance,
best practice examples, or rule).
Some Task Force members felt that the statement of basis should be used as a mechanism
for communicating to the public a broad array of information about the source and its
operation. For example, some Task Force members felt that the statement of basis should
include a discussion about the compliance history of the source, applicability issues, and
historic New Source Review decisions. Other information some Task Force members
would like to see in a statement of basis include the inspection history of the source,
including the date of last inspection, the inspection results, and the typical frequency of
inspections. Some Task Force members also supported using the statement of basis to
provide an explanation of complicated MACT requirements. One Task Force member
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Statement of Basis
stated that when you have emissions from a major source that deviate significantly from a
source test, permit limits, or other emissions factors such that it may cause a violation of
SIP requirements and be a factor in exceeding NAAQS standards in the SIP, this infor-
mation should be required in the statement of basis.
Task Force members who did not support including that type of additional information in
the statement of basis felt that it went beyond what was needed to support the legal and
factual basis of permit conditions, and that permitting authorities should not be required
to develop or summarize a lot of information that was not relevant to a specific permit-
ting decision. Some Task Force members felt that the regulatory requirements for state-
ments of basis should be limited to explaining the basis for actual permit conditions and
that permitting officials should not be required to spend time and resources explaining
noncontroversial decisions or obvious applicability determinations that could be ex-
plained in the permit by citing to the underlying rule or previously issued permit. In
some cases, Task Force members felt that the real issue was whether the public should
have access to the additional information in other forms. As a result, the Task Force
agreed to defer some of those issues to the discussion of the public's access to docu-
ments.
The Task Force also spent a fair amount of time discussing the degree to which enforce-
ment related material should be summarized in the statement of basis, including discuss-
ing the various types of formal and informal material (e.g., warning letters, notices of
violation, administrative and judicial papers) that might exist and various time frames
over which they might be examined by a permitting authority. Although the Task Force
generally agreed that permitting authorities should consider enforcement related material
during their review of a permit application and source's compliance certification, the
Task Force did not agree on the relationship between that review and the statement of
basis in cases where the review did not result in a specific permitting decision (see Rec-
ommendation #1.8). The Task Force also discussed the permitting authorities' review of
enforcement material in the context of its discussion of compliance schedules.
One point upon which Task Force members agreed was that any complex permitting
decisions should be explained in the statement of basis. There also was some consensus
about some other items that should be covered in a statement of basis (see Recommenda-
tions #1.1 - 1.6).
With respect to permit renewals and revisions, the Task Force developed recommenda-
tions aimed at ensuring that the information in prior statements of basis were available for
review without requiring permitting authorities to repeat previously developed informa-
tion (see Recommendations 2 and 3).
With respect to permitting authorities that were not producing statements of basis, some
Task Force members were concerned about recommending specific EPA action that did
not provide discretion for failures that might be considered de minimis or that did not
result in any prejudice to the public. However, the Task Force ultimately did reach con-
sensus on several recommendations (see Recommendations 4 and 5).
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Statement of Basis
Recommendations
Recommendation #1
EPA should clarify to States what it expects to be included in a statement of basis. The
Task Force considered the following items as appropriate for inclusion:
1.1 A description and explanation of any Federally enforceable conditions from pre-
viously issued permits that are not being incorporated into the Title V permit.
1.2 A description and explanation of any streamlining of applicable requirements
pursuant to EPA White Paper No. 2.
1.3 A description and explanation of any complex non-applicability determination
(including any request for a permit shield under section 70.6(f)(l)(ii)) or any determi-
nation that a requirement applies that the source does not agree is applicable, includ-
ing reference to any relevant materials used to make these determinations (e.g.,
source tests, State guidance documents).
1.4 A description and explanation of any difference in form of permit terms and con-
ditions, as compared to the applicable requirement upon which the condition was
based.
1.5 A discussion of terms and conditions included to provide operational flexibility
under section 70.4(b)( 12).
1.6 The rationale, including the identification of authority, for any Title V monitoring
decision.
In Favor (18)*: Palzer, Sliwinski, Schwartz, Raettig, Owen, Keever, Kaderly, Golden,
Freeman, Paul, Morehouse, Hodanbosi, Wood, van der Vaart, Hagle, Powell,
Broome, Van Frank
Opposed:
Abstentions:
Clarification:
The Task Force did not reach consensus on the following two Recommendation #1 sub-
items regarding the Statement of Basis, and the relative support for these is indicated
below.
1.7 A list of all construction permits for the portion of the facility being permitted
that are applicable to the facility as of the date of the draft permit if they are not al-
ready listed in the Title V permit, and all Title V permits issued to the facility.
In Favor (16)*: Palzer, Sliwinski, Paul, Powell, Freeman, Hagle, Morehouse, Raettig,
Owen, Hodanbosi, Wood, Keever, van der Vaart, Broome, Golden, Van Frank
Opposed (1)*: Schwartz
Abstentions (1)*: Kaderly
Clarification:
(Recommendation sub-item 1.8 on next page)
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Statement of Basis
(Recommendation sub-item 1.8)
1.8 - A list of formal enforcement documents over the last five years and the status of
implementation, and any active consent decrees.
In Favor (9)*: Palzer, Sliwinski, Schwartz, Raettig, Owen, Keever, Kaderly, Powell,
Van Frank
Opposed (9)*: Golden, Freeman, Paul, Morehouse, Hodanbosi, Wood, van der Vaart,
Hagle, Broome
Abstentions:
Clarification: Van Frank clarifies that this should include all unresolved notices of
violation. Palzer joins Van Frank's clarification.
*Note: Number in parentheses () is the total number of Task Force members voting for this position.
Recommendation #2
The statement of basis for renewal need only address changes since the last Title V per-
mit issuance, provided that the statement of basis issued for prior revisions and the origi-
nal statement of basis are available.
In Favor (18): Palzer, Sliwinski, Paul, Powell, Freeman, Hagle, Schwartz, Morehouse,
Raettig, Owen, Hodanbosi, Wood, Keever, van der Vaart, Broome, Kaderly, Golden,
Van Frank
Opposed:
Abstentions:
Clarification: Powell, Palzer, and Van Frank clarify that they consider the best practice
to be to prepare a single comprehensive statement of basis for a renewal permit,
thereby eliminating the need to refer back to prior statements. Kaderly clarifies that
the previously completed statement of basis must be an accurate reflection of opera-
tions at the facility.
Recommendation #3
Statements of basis for revisions do not need to address matters that are outside of the
scope of the revision.
In Favor (18): Palzer, Sliwinski, Paul, Powell, Freeman, Hagle, Schwartz, Morehouse,
Raettig, Owen, Hodanbosi, Wood, Keever, van der Vaart, Broome, Kaderly, Golden,
Van Frank
Opposed:
Abstentions:
Clarification:
Recommendation #4
EPA should object to Title V permits without a statement of basis.
In Favor (18): Palzer, Sliwinski, Paul, Powell, Freeman, Hagle, Schwartz, Morehouse,
Raettig, Owen, Hodanbosi, Wood, Keever, van der Vaart, Broome, Golden, Kaderly,
Van Frank
Opposed:
Abstentions:
(Clarification on next page)
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Statement of Basis
(("larificalion for Recommendation 4)
Clarification: Morehouse, Broome. aiicl Freeman clarify lhat this recommendation is not
intended lo impose on FP.\ a re(.|iiirenienl lo re\ie\\ each permil just lo determine if
there is a statement of basis. this recommendation does not address the content of the
statement of basis. and that l-IW would not need to object if the same information
was contained elsewhere in the permitting record or in another document that satis-
lied the intent of the statement of basis kaderly clarifies that l-IW should object only
if the permit does not contain the information that a statement of basis would
Recommendation #5
EPA should issue a Notice of Deficiency for State programs that routinely do not issue a
document satisfying the intent of the statement of basis with their permits.
In Favor (18): Palzer, Sliwinski, Paul, Powell, Freeman, Hagle, Schwartz, Morehouse,
Raettig, Owen, Hodanbosi, Wood, Keever, van der Vaart, Broome, Golden, Kaderly,
Van Frank
Opposed:
Abstentions:
Clarification:
Related Topics: Public Access to Documents, Title I/Title V Interface, Compliance
Schedules, Monitoring, Incorporation of Applicable Requirements,
EPA Review of Proposed Permits, Program Costs and Benefits, Insig-
nificant Activities/Emission Units
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5.6 Topic: Responses to Public Comments on Draft Permits
Issue Observation/Description
What this paper addresses: This paper addresses concerns by commenters and Task
Force members that some permitting authorities are not providing a written response (or
any response at all) to public comments on draft permits. It also addresses concerns
raised about the difficulty in determining what changes have been made to a permit fol-
lowing the public comment period.
Legal Requirements: CAA § 502(b)(6) requires the Administrator to promulgate regula-
tions that include "[ajdequate, streamlined, and reasonable procedures for expeditiously
determining when applications are complete, for processing such applications, for public
notice, including offering an opportunity for public comment and a hearing, and for
expeditious review of permit actions, including applications, renewals, or revisions, and
including an opportunity for judicial review in State court of the final permit action by
the applicant, any person who participated in the public comment process, and any other
person who could obtain judicial review of that action under applicable law."
CAA § 505(a)(1): "Each permitting authority—
(A) shall transmit to the Administrator a copy of each permit application (and any appli-
cation for a permit modification or renewal) or such portion thereof, including any com-
pliance plan, as the Administrator may require to effectively review the application and
otherwise to carry out the Administrator's responsibilities under this chapter, and
(B) shall provide to the Administrator a copy of each permit proposed to be issued and
issued as a final permit."
40 CFR § 70.7(h): Public participation. Except for modifications qualifying for minor
permit modification procedures, all permit proceedings, including initial permit issuance,
significant modifications, and renewals, shall provide adequate procedures for public
notice including offering an opportunity for public comment and a hearing on the draft
permit. The procedures shall include the following: .... (5): "The permitting authority
shall keep a record of the commenters and also of the issues raised during the public
participation process so that the Administrator may fulfill his obligation under section
505(b)(2) of the Act to determine whether a citizen petition may be granted, and such
records shall be available to the public."
Discussion
All Task Force members but one agreed that it is important for a permitting authority to
prepare a written response to public comments on a draft permit. Several Task Force
members explained that such a response was necessary to assure commenters that their
comments had been received and considered. Task Force members also noted the impor-
tance of a response to comments to form a record for any appeal.
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Task Force members noted that often a permitting authority will not provide any response
at all to comments on a draft permit. They described circumstances where facility repre-
sentatives and other commenters submit extensive comments on a draft permit, but re-
ceive no explanation from the permitting authority for why requested changes are not
made. Industry representatives on the Task Force also noted that often a permitting
authority will change a permit even though no comment was made by any party, and
without offering an explanation for the change. Several industry and environmental
group representatives expressed frustration with permitting authorities who fail to even
acknowledge their comments.
Task Force members noted that some agencies consistently respond to comments and
discussed what they consider agency "best practices" responding to comments. Most
Task Force members agreed that it was important for a response to comments to explain
any difference between the draft, proposed, and final permits, and that the response to
comments should highlight not only changes made in response to public comments, but
also any change made in response to comments by the EPA. Several Task Force mem-
bers described experiences where a permitting authority changed a draft permit without
explanation, and then, when pressed, responded only that EPA requested the change. A
State agency representative stated that not only is an explanation of changes important to
industry and the public, but it is also beneficial to the permitting authority to be able to
refer to the record to see what changes it made and why it made them. That representa-
tive explained that if the reason for the change is not documented, it is difficult to defend
the change if it is challenged.
Most Task Force members agreed that an effective way to show changes made to a draft
permit is to record the changes using the "redline/strikeout" format available in word
processing software. One industry member identified Indiana's "technical support
document" as an example of a very useful response to comments. According to that
member, Indiana repeats the comment and then uses a redline/strikeout format to show
how the permit condition was changed in response to the comment.
The Task Force also discussed how the response to comments should be made available
to the public. Most members agreed that any person who submitted written comments
during the public comment period should be notified automatically when the response to
comments is complete, and receive a copy free of charge. Task Force members generally
agreed that in many cases, it would be sufficient to provide the response to comments
electronically, either by email or by posting the document on a website and providing the
commenter with the web address. However, most Task Force members recognized that
some people have difficulty accessing the internet and should be given the option of
receiving a free paper copy by mail.
Task Force members expressed differing views regarding how the response to comments
document should be provided to people who attend a public hearing. Some members
expressed concern that not everyone who attends a public hearing will be interested in
receiving a response to comments and that it can be costly to personally distribute re-
sponses to everyone who attends a hearing. They observed that people attending a public
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Responses to Public Comments on Draft Permits
hearing often just want to hear what is going on, and the hearing itself answers most of
their questions. One member responded that any person who goes to the trouble of at-
tending a hearing is likely to be interested in the permitting authority's response to com-
ments. Another member stated that is reasonable to require hearing attendees who are
interested in receiving a copy of the response to comments to communicate that request
to the permitting authority.
Some members suggested that the permitting authority may not have the names and
addresses of every person who attends a hearing. Several members responded that it is
standard practice for an agency to have a registration table at a hearing. They explained
that the permitting authority can provide a sign-up sheet at the table for anyone who
wishes to receive the response to comments.
Generally, the Task Force agreed that a permitting authority should not be required to
automatically send the response to comments to every person who attends a hearing, but
that each person who attends should be given the option of receiving the response.
An environmental group representative described one State's approach that she viewed as
very effective. In that State, the permitting authority pre-prints notification postcards
announcing the availability of a response to comments, and providing the web address
where the response will be posted. If someone wants notice of when the response is
ready, they fill out a card with their address. When the permitting authority posts the
response to comments on the internet, it simultaneously mails out the postcards. Simi-
larly, a State agency representative described her State's procedure as follows: "We ask
at the time of the hearing whether they wish
to receive the responsiveness summary, and how—email or [traditional] mail. This goes
for anyone in attendance at the hearing, whether or not they provided testimony. Some
are interested in the outcome, but are too shy to speak up at the hearing. We place some-
one at a table near the entrance for signing up."
The Task Force generally agreed that this would be an effective approach to notifying
public hearing attendees of a response to comments. Again, however, several members
emphasized that hearing attendees must also have the option to receive a free paper copy
by mail.
Environmental group members explained that it was essential for commenters to receive
a copy of the permitting authority's response to comments prior to the start of the 60-day
period for petitioning EPA to object to a proposed permit, so that they can take the per-
mitting authority's response into account when drafting a petition.
While nearly all Task Force members agreed on the general recommendation that permit-
ting authorities should respond to public comments, Task Force members were divided as
to whether EPA needs to revise Part 70 to incorporate this requirement. Some members
explained that the requirement that a permitting authority respond to public comments is
already embodied in administrative law; therefore, they contended that there is no need to
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Responses to Public Comments on Draft Permits
revise Part 70 to State this requirement expressly. Indeed, a 2003 EPA order issued in
response to a citizen petition declares: "It is a general principle of environmental law that
an inherent component of any meaningful notice and opportunity to comment is a re-
sponse by the regulatory authority to significant comments." See In the Matter of Con-
solidated Edison Company, Hudson Avenue Generating Station, Petition 11-2002-10 at 8
(Sept. 30, 2003)(citing Home Box Office v. FCC, 567 F2d 9, 35 (D.C. Cir. 1977)). Other
members expressed concern that while they agreed that general principles of administra-
tive law require a response to comments, the most effective way to ensure that permitting
authorities prepare such responses is to spell out the requirement in Part 70. Other Task
Force members did not believe that this issue rises to the level of needing a rule revision
but instead should be promoted through use of best practices to better take into considera-
tion the differing practices across the States. They expressed concern that prescriptive
requirements in regulations would soon be outdated by advancements in technology and
may not take into consideration acceptable ways of approaching these issues that could
exist in some States. These members suggested that States already addressing the core
concerns should not be required to change their approaches.
Several members stated that it was important for EPA to receive a copy of the response to
comments for its use during its review of a proposed permit. Though no Task Force
member present at the discussion opposed providing EPA with a copy of the response to
comments, some members were concerned that a recommendation that EPA be provided
with its copy prior to the start of its 45-day review period might interfere with "concur-
rent review," {i.e., allowing EPA's 45-day review period to run concurrently with the 30-
day public comment period). As explained in the paper entitled "EPA Review of Pro-
posed Permits," some Task Force members support the idea of concurrent review, while
others do not. The wording of Recommendation #2 reflects an effort to craft a recom-
mendation that members could support regardless of whether they support concurrent or
sequential review. As reflected in the "EPA Review of Proposed Permits" paper, those
who support concurrent review generally agree that if a member of the public submits
significant comments germane to the draft Title V permit, the review process should
switch to "sequential" review {i.e., EPA's 45-day review period will start at or sometime
after the close of the 30-day public comment period). However, those members do not
believe that review should switch to sequential under circumstances where the only
commenter is the permit applicant. In an effort to reach consensus on a recommendation
(without taking any position on concurrent versus sequential review), Recommendation
#2 states that EPA should be provided with a response to comments for consideration
during its 45-day review period if "the permitting authority received public comments
from anyone other than the permittee during the public comment period."
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Recommendations
Recommendation #1
If a permitting authority receives comments on a draft permit, it is essential that the
permitting authority prepare a written response to comments. The response should (1)
respond to each public comment, and (2) identify and explain any changes to the draft
permit reflected in the proposed permit (including all changes from public/EPA/permittee
comments, either written or oral).
Upon issuance of a final permit, if there is any difference between the proposed and final
permit, it is essential that the permitting authority prepare a final response to comments
that (in addition to the information provided in the initial response) identifies and ex-
plains any difference between the proposed and final permits.
The permitting authority should provide a copy of the initial response available to the
public prior to the start of the 60-day period for petitioning the EPA Administrator to
object to the permit. Any person who participated in the public comment period on the
draft permit should be provided with a copy of the initial and final responses to com-
ments, as follows:
• When the initial response to comments is completed, the permitting authority
should notify the permittee and any person who submitted a written comment
on the draft permit that the response is complete and provide a copy free of
charge, electronically and by mail upon request. The same procedures should
apply with respect to the final response to comments, if the permitting author-
ity amends its initial response.
• The permitting authority should provide any person who attends a public hear-
ing or information session on a draft permit the option to be notified when the
initial response to comments is available, and to receive a copy free of charge
(electronically and by mail, if requested). The same procedures should apply
with respect to the final response to comments, if the permitting authority
amends its initial response.
In Favor (18)*: Raettig, Van Frank, Powell, Keever, Paul, Golden, Owen, Palzer, Hagle,
Wood, Broome, Freeman, Morehouse, Hodanbosi, Kaderly, Schwartz, Sliwinski,
Golden
Opposed (1)*: van der Vaart
Abstentions:
(Clari fications on next page)
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Process Issues
Responses to Public Comments on Draft Permits
(Clarifications for Recommendation #1)
Clarifications'. "Public comment" refers to a comment made during the public comment
period either in writing or orally at a public hearing. The public includes the facility
being permitted. Hodanbosi clarifies that he supports this recommendation because it
describes what he views as the "desired State." He does not believe that his agency
could have followed this recommendation for initial permit issuance, but believes his
agency should be able to respond as described above when issuing renewal and new
source permits. Kaderly clarifies that if EPA makes comments on a proposed permit,
her agency would probably prepare a separate response to their comments rather than
revising the initial response to public comments. Sliwinski clarifies that he does not
support the idea of providing commenters with a paper copy of the response to com-
ments free of charge. He believes that this could become a burden on the permitting
authority for controversial permits with hundreds of commenters. Schwartz clarifies
that the permitting authority should be able to use an economical means of providing
its response if there are a large number of commenters.
*Note: Number in parentheses () is the total number of Task Force members voting for this position.
Recommendation #2
If the permitting authority received public comments from anyone other than the permit-
tee during the public comment period, the response to comments described in Recom-
mendation #1 should be provided to the EPA for consideration during its 45-day review
period.
In Favor (16): Raettig, Van Frank, Powell, Keever, Hodanbosi, Schwartz, Wood, Palzer,
Owen, Hagle, Broome, Morehouse, Paul, Sliwinski, Freeman, Golden
Opposed (2): van der Vaart, Kaderly
Abstentions:
Clarifications: Kaderly clarifies that she opposes this recommendation because she
thinks that EPA should have the benefit of seeing a response to the permittee's com-
ments in addition to a response to comments from other members of the public.
Freeman, Golden and Broome clarify that nothing in this recommendation should be
read to preclude the use of concurrent review or to suggest that EPA should not re-
ceive a response to comments by the permittee when that would not interfere with
concurrent review. Hodanbosi makes the same clarification as he does for Recom-
mendation #1.
Recommendation #3
EPA should revise 40 C.F.R. Part 70 to require permitting authorities to implement the
procedures described above in Recommendation #1.
In Favor (8): Raettig, Van Frank, Powell, Keever, Schwartz, Palzer, Owen, Sliwinski
Opposed (10): van der Vaart, Hodanbosi, Broome, Hagle, Paul, Kaderly, Wood, Free-
man, Golden, Morehouse
Abstentions:
(Clarification on next page)
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((larification for Recommendation 3)
Clarifications: I lochinhosi aiicl Wood clarify lhat they do not think lhat adopting reuula-
lions is the best way lo accompiish Recommendations I and 2 because nuances of
the different State permitting programs would make it difficult lor permitting authori-
ties lo modify their programs to comply with whate\er l-PA might prescribe Kaderly
and (iolden clarify that instead of re\ising Part 7<). I-PA should carefully re\iew each
State s process of responding to comments to determine whether it is elVecti\e and
deal specifically with those States where there is a problem
Recommendation #4
If a permitting authority tails to prepare a written response lo comments on a draft permit,
and lo make this response a\ailable to the public in a manner consistent with the abo\e
recommendations. I-PA should object to issuance of the permit pursuant to (\\.\ $
5"5(b)
In l-'avor (10): Raettig. Van frank. Powell. kee\er. Palzer. Owen. I lade. Schwartz.
Sliwinski. Kaderly
Opposed C): \an der Vaart. Ilodanbosi. Morehouse. Wood. Broome, freeman, (iolden
. 1 bstentions (I): Paul
Clarifications: I lade and Schwartz, clarity that I-PA should not object where comments
were insignificant or irrele\ ant Kaderly clarities that regardless of the comment, she
thinks it is inappropriate not to respond at all she \iews that as a sign of disrespect
to the indi\idual who took the time lo re\iew and comment on the permit Ilodan-
bosi. Wood, (iolden. and Broome clarity that they are opposed because they think
that the mandatory penalty is too I a rue for w hat could be a minor administrate e error
They belie\e that if the permittinu authority consistently does not pro\ide a copy of
the response lo comments. I'PA should ha\e the ability lo use the objection process,
but an objection should not be mandatory freeman also clarities that all failures to
comply with the abo\e recommendations should not result in an I'PA objection to the
proposed permit As an example, she explains that a permittinu authority's fail lire to
pro\ide a copy of the response to comments to someone who attended a hearing but
did not testily or comment should not result in an objection
Recommendation #5
The permitting authorities should clearly document the changes made to a draft Title V
permit. A recommended way to document changes is using redline/strikeout in edited or
amended versions of the proposed Title V permit or by describing the changes in a trans-
parent manner (e.g., in the technical support document/statement of basis).
In Favor (17): Powell, Keever, Raettig, Owen, Palzer, Van Frank, Broome, Freeman,
Schwartz, Paul, Sliwinski, Morehouse, Kaderly, Hodanbosi, Wood, Golden, Hagle
Opposed:
Abstentions:
Clarifications:
Related topics: Public Notice, Public Hearings, Statement of Basis
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Attachment: Relevant Comments
Susan Zingle, Lake County Conservation Alliance: Some technical things that have come
up with Title V permits that did impact us, one is streamlining. I am all for streamlining.
Let's make everything as quick and easy as we can. But let's identify what we took out.
Let's not use streamlining as an excuse to gut regulations out of existing permits and
make us proofread every single line of every single permit to find what was changed.
Kathy Andria, ABC: The Illinois EPA FOIA policy is very good. They provide not-for-
profits free copying and make the material available to us. There is a lot of time that's
involved to the public in reviewing Title V permits because we take it seriously. We first
read the permit. We look to see what we need. We FOIA the material. We have to drive
all the way to Springfield to look at the material, to request the different things that we
need. We then have to drive all the way back, prepare for the public hearing, prepare
questions, listen to the questions, wait for the transcript, wait for the answers — which for
the most part never come that we are promised to have something that they say. "We'll
get back to you" — and then write our comments. And somewhere down the line here we
forget that we have to look to see what changes, if any, are made. Finally — this is a
wonderful success that I view — we got a copy of a permit with the tracking changes, and
we could finally see that there were changes. Now, a couple were our suggestions, that
we got reporting and recordkeeping and testing added, at least in words, to the permit, but
also we noticed that they changed the Title I emission limits. So that hadn't gone through
the public process. We didn't have an opportunity to comment. But in my reading of it,
and I just saw it in the last two days, it went from talking about pounds per hour, the
annual emission limits seemed to go down to either monthly or pounds per hour, and I
thought, "Gee, you know, that's okay. You're talking about operational flexibility. But if
you're a child who has asthma who lives in that neighborhood, it's not acceptable."
Scott Gollwitzer, Appalachian Voices: I have yet — and, again, it's based on our own
resources — to see any significant changes in permits. By the same token, I must admit
it's really tough to review a proposed permit after we've submitted draft comments.
Again, it's one of the reasons why we would like to see written responses to our
comments. If. in fact, the DAQ took the time to file a written response to my comments.
I could read that much quicker than looking at a proposed permit and comparing the
proposed to the draft and going back to my comments to see how everything fit into that
puzzle.
MR. HODANBOSI: I think this will be pretty quick, this question. Certainly, you appear to
have been involved with Delaware in providing a number of comments. I was just
wondering, you've provided comments on a draft permit. Do you have followup with the
agencies? Do you talk with them? Do they call you? Do you get to see a final permit and
you compare and say, oh, you took our comment and changed it? I just want to know how
much interaction there is after you've filed comments.
Lyman Welch, Mid-Atlantic Environmental Law Center: We have requested hearings on a
number of the permits, so there is that opportunity to present oral comments and additional
written comments at the public hearing. After that, it's really up to the agency. We have no
contact with them after that. I'm sure we could call and ask them questions, if we had a
question about what was going on, but they don't make any effort to reach out to us and
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involve us in the process after that. They do make an effort to involve the permittee. They
will go to the permittee and say these are all the comments that we've received from the
public. What's your response? And they will often put the permitee's response into the
record, and when they do issue the permit, Delaware now is being much better at having a
written comment and response document so there is a response to comment documents that
the agency will prepare, which gives some explanation about how they either ignored our
comment or made a change.
MS. OWEN: Okay. Thank you. Do you respond to comments?
MS. HOLLENBACH, Michigan DEQ: Yes
Our Children's Earth (written comments): Submitted a summary of issues raised at an
environmental justice session held at Golden Gate University. One issue was that there is
"no response to comments from the community." The proposed solution was to require
agencies to respond to questions and concerns raised at public hearings, and to make
transcripts of hearings available on the internet.
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5.7 Topic: Permit Re-Opening, Revisions and Operational Flexibility
Issue/Observation Description
Among the most significant challenges to the Title V program are maintaining the permit
to reflect current applicable requirements, expeditiously processing permit revisions, and
maintaining operational flexibility for sources. If one of the primary benefits of the Title
V program is that the permit is a compilation of all the applicable requirements for an
individual source, then an effective process for revising the permit is important to pre-
serve that benefit. A permit that is not current does not inform the public or the source
about the applicable requirements. Furthermore, it may lead to confusing compliance
circumstances for sources if the permit and the applicable regulatory requirements are out
of sync. At the same time, as new requirements come into effect, either through revised
or new construction permits or new regulations, complying with and implementing these
requirements may need to be accomplished before a permit revision can be completed.
Many different factors challenge permitting authorities' ability to keep the permit current.
There are many reasons why a permit may not reflect current requirements or need revi-
sion. New regulations are promulgated and existing ones are revised. In some cases, the
new or revised rules are incorporated into a SIP. In addition, the permit may contain
errors or omissions. The source may be making changes to its operations or adding new
equipment. With all of these factors creating circumstances to update the permit, permit-
ting authorities may not have enough resources to process all the changes in a timely
manner. This in turn may unreasonably delay projects, prevent opportunities for public
participation, or put sources in jeopardy of noncompliance. Furthermore, confusion
about which permit revision process applies may create stress, inefficiency, and delay in
the system.
The Task Force initially identified a number of questions it had about the implementation
of the Title V permit revision and operational flexibility provisions. Those questions are
listed below.
• Classification of Permit Modifications: Is the permit modification process working
well? If not, how should it be changed? Are modifications being addressed in a
timely manner?
• Reopenings: Does every reopening have to follow full issuance procedures? Should
Part 70 be changed to allow some simpler reopenings to occur without public notice?
For instance, should incorporation of a new Federal standard require full process?
How should States identify and reopen existing permits when a generally-applicable
regulation is promulgated or revised? Are there ways other than reopening to incor-
porate newly promulgated requirements?
• Operational Flexibility: Is the provision for "section 502(b)(10) changes" in §
70.4(12)(i) working well? Is it being used or not, and if not, is that good (z'.e.,does
lack of use indicate well written permits or lack of education regarding available op-
erational flexibility in the rules)? Are the other operational flexibility provisions in-
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eluded in Section 70.4(b)(12) being utilized effectively? Is the "off-permit" authority
of 70.4(b)(15) being used effectively? If not, how can their use be improved?
Upon hearing testimony and receiving written comments, the Task Force identified addi-
tional discussion questions about permit revisions and operational flexibility. These
include the following:
1. Are current Title V permit revision procedures impeding companies' ability to make
changes quickly enough to remain competitive, or unreasonably delaying environ-
mentally beneficial projects? If so, does the delay arise from the rules, themselves, or
from some other factor? If the problem is with the rules, can they be streamlined in a
way that would still allow for effective oversight by the permitting agency, EPA, and
the public?
2. Do current permit revision procedures provide adequate opportunities for public
notice and comment? If not, how can they be revised to address this problem? Is the
public participating in the permit modification process?
3. Is there confusion regarding which permit revision procedures apply to particular
types of changes? If so, how can this be remedied?
4. How are major and minor NSR permitting requirements affected by or affecting Title
V permit revisions?
Background
Legal Requirements: Statute. The Clean Air Act includes the following provisions that
address reopening or revision of Title V permits and operational flexibility.
CAA § 502(b)(6): The Administrator shall promulgate regulations that include "ade-
quate, streamlined, and reasonable procedures for expeditiously determining when appli-
cations are complete, for processing such applications, for public notice, including offer-
ing an opportunity for public comment and a hearing, and for expeditious review of
permit actions, including applications, renewals, or revisions, and including an opportu-
nity for judicial review in State court of the final permit action by the applicant, any
person who participated in the public comment process, and any other person who could
obtain judicial review of the action under applicable law."
CAA § 502(b)(9): The Administrator shall promulgate regulations that include "a re-
quirement that the permitting authority, in the case of permits with a term of 3 or more
years for major sources, shall require revisions to the permit to incorporate applicable
standards and regulations promulgated under this chapter after the issuance of such per-
mit. Such revisions shall occur as expeditiously as practicable and consistent with the
procedures established under paragraph (6) but not later than 18 months after the promul-
gation of such standards and regulations. No such revision shall be required if the effec-
tive date of the standards or regulations is a date after the expiration of the permit term.
Such permit revision shall be treated as a permit renewal if it complies with the require-
ments of this subchapter regarding renewals."
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CAA § 502(b)(10): The Administrator shall promulgate regulations that include
"[provisions to allow changes within a permitted facility (or one operating pursuant to
section 7661b(d) of this title) without requiring a permit revision, if the changes are not
modifications under any provision of subchapter I of this chapter and the changes do not
exceed the emissions allowable under the permit (whether expressed therein as a rate of
emissions or in terms of total emissions: Provided, That the facility provides the Admin-
istrator and the permitting authority with written notification in advance of the proposed
changes which shall be a minimum of 7 days, unless the permitting authority provides in
its regulations a different timeframe for emergencies."
CAA § 505(a)(1): "Each permitting authority—(A) shall transmit to the Administrator a
copy of each permit application (and any application for a permit modification or re-
newal) or such portion thereof, including any compliance plan, as the Administrator may
require to effectively review the application and otherwise to carry out the Administra-
tor's responsibilities under this chapter
Regulations. The Part 70 rules contain several procedural mechanisms for reopening or
revising Title V permits or addressing other changes at the source. These are summa-
rized below. Actual rule language appears at the end of this document.
Permit reopening [40 CFR 70.7(f) and (g)J: The permit reopening provisions enable the
permitting authority to add new or revised applicable requirements to a permit without
the permittee requesting the change. The rules contemplate reopening for such purpose if
more than three years remain of the permit term when the new requirement becomes
applicable. In addition, the permit reopening provisions authorize a permitting authority
or EPA to revise a permit if it determines that the permit contains a material mistake or
that "the permit must be revised or revoked to assure compliance with the applicable
requirements." If a permitting authority reopens a permit, it must follow the full Title V
review and public participation process to revise the permit.
Administrative permit amendments [40 CFR 70.7(d)]: Administrative permit amend-
ments provide a simple and quick process to address ministerial changes to the permit
[typographical changes; changes in ownership], changes that incorporate requirements
from preconstruction review permits that have already undergone agency review and
public participation procedures, and changes that require more frequent monitoring or
reporting by the permittee. The Part 70 rules also allow other changes of a similar nature
to the previously described changes if the EPA approves those types of changes into the
permit program.
Minor permit modification [40 CFR 70.7(e)(2)]: Minor permit amendments provide a
source the opportunity to make its change quickly - upon the submittal of the application
if allowed by the State — but the process for actually revising the permit entails adjacent
State notification and EPA review of the change. No public participation is required
under the Part 70 rules, but some States require public participation. The criteria for the
types of changes eligible for minor permit modification are subjective; as a result States
and EPA regions have interpreted the criteria both broadly [many types of changes qual-
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ify for minor permit modification], and narrowly [few changes qualify for minor permit
modification].
Significant permit modification [40 CFR 70.7(e)(4)]: The significant permit modifica-
tion process is the default permit revision process. Any change that requires a permit
revision and does not qualify as an administrative permit amendment or a minor permit
modification must be processed as a significant permit modification. In addition, signifi-
cant changes in monitoring requirements and relaxations of record keeping and reporting
requirements must also be processed as significant permit modifications. The process for
these modifications is the same as the process for the initial issuance of a Title V permit:
full public participation and EPA review before the modification goes into effect.
Operational flexibility. The Part 70 rules also include a number of "operational flexibil-
ity" provisions that enable sources to make changes without revising the Title V permit.
The availability of these provisions is limited in that the change may not be in violation
of applicable requirements, increase emissions above the emissions allowable under the
permit, or constitute a Title I modification. In most cases, these provisions require the
source to submit a notification to the permitting authority before making a proposed
change. Below is a list of these provisions:
• Section 502(b)(10) changes [40 CFR 70.4(b)(12)(i)]
• Trading of emission increases and decreases where provided by the applicable re-
quirement or SIP [40 CFR 70.4(b)(12)(ii)]
• Trading of emission increases and decreases for purposes of complying with an emis-
sion cap [40 CFR 70.4(b)(12)(iii)]
• So-called off-permit changes [40 CFR 70.4(b)(14)]
• Alternative operating scenarios [40 CFR 70.6(a)(9)]
Finally, the preamble to the final part 70 rules explains that permittees have inherent
flexibility in that emissions or other practices not prohibited by a permit are allowed,
providing that the revision and operational flexibility provisions of the rules do not
create:
any limit on the inherent flexibility sources have under their permits. A
permittee can always make changes, including physical and production
changes that are not constrained under the permit. For example, a facility
could physically move equipment without providing notice or obtaining a
permit modification if the move does not change or affect applicable
requirements or Federally-enforceable permit terms or conditions. Or a
painting facility with a permit that limits the VOC content of its paints can
switch paint colors freely as long as each color complies with the VOC
limit in the permit.
57 Fed. Reg. 32267.
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Supporting Information: Comments Received
Twenty-one persons providing oral testimony to the Task Force included the issues of
permit reopening, permit revision, and operational flexibility in the scope of their testi-
mony. Similarly, twenty-three of the written comments included discussion of these
issues. It should be noted that some of the written comments were submitted by the same
persons or organizations that provided oral testimony.
Nearly all of the testimony and comments on this topic were made by representatives of
permitting authorities, industry trade organizations, or individual companies. The pri-
mary points raised in the comments were as follows:
Permit reopenings
• Permitting authorities are not able to keep up with permit reopenings to incorporate
newly adopted or revised applicable requirements. Sources have adapted by applying
themselves for permit revisions or to utilize off-permit notification to comply with
new requirements, particularly MACT standards. [API, Michigan DEQ, IDEM,
Puget Sound, STAPPA/ALAPCO, Air Permitting Forum]
• The process to reopen Title V permits to address new or revised applicable require-
ments should not be a significant permit modification because it is too burdensome.
Instead the permit should be revised at renewal, by minor permit modification, off-
permit change, or some other simple process. [BAAQMD, NPRA, Michigan DEQ,
API, Indiana DEM, STAPPA/ALAPCO, Lilly, CASE]
Permit revisions
• The permit revision rules should not be changed because the rules are complex and
permitting authorities are just starting to learn to implement them. Revision at this
point in the process will create confusion. [ACC, Auto Alliance, Air Permitting Fo-
rum]
• Permitting authorities and sources are confused about which revision process applies
to specific changes. [RR Donnelly, Michigan DEQ, Alabama DEM, API, Lilly, Auto
Alliance, Ohio EPA, Air Permitting Forum]
• There is inconsistent application of the permit revision processes to types of changes
from jurisdiction to jurisdiction. [RR Donnelly, NPRA, Connectiv, Alabama DEM,
• The permit revision process is onerous or burdensome or overwhelming States.
[Michigan DEQ, Georgia EPD, San Diego APCD, DoD, Ohio EPA, Air Permitting
Forum
• EPA should issue guidance to clarify the types of changes that fall into the different
categories. [ACC, New Jersey DEP, CAPCOA, BAAQMD, Georgia EPD
• The permit revision process needs streamlining. [NPRA]
• Too many permit revisions are being processed as significant permit revisions.
[STAPPA/ALAPCO, Ohio EPA, CENSARA]
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• Permitting authorities are interpreting the scope of minor permit revisions too nar-
rowly. [BAAQMD]
• A significant portion of the Title I modifications that are being reviewed as signifi-
cant permit modifications do not warrant that much process because there is little en-
vironmental or compliance significance to the change. [BAAQMD, SCAQMD, Indi-
ana DEM, San Diego APCD]
• Title I modifications should be eligible for minor permit modification procedures.
[Indiana DEM]
• There is inconsistent guidance about what constitutes a Title I modification. [Indiana
DEM]
• Permit revisions take too long to complete or are burdensome, in particular significant
permit revisions. [RR Donnelly, API, ACC, Indiana DEM, NPRA, Air Permitting
Forum]
• Long permit revision times cause delay for environmentally beneficial projects and
projects necessary for sources to remain economically competitive. [AFPA, Indiana
DEM]
• Monitoring changes specified in a rule should not require significant permit modifica-
tion. [Indiana DEM]
• Monitoring, record keeping, and reporting changes should be processed as minor
permit modifications. [Ohio EPA]
• No public comment period should be required for minor permit modifications.
[ACC]
• States should be required to meet the regulatory time frames. [Murawski]
• States should offer expedited review processes for time-sensitive changes. [Mu-
rawski]
• Off-permit and minor permit modification procedures have proved to be crucial to
enable sources to make changes and should be retained. Immediate implementation
of changes under these processes is important. They are the only thing keeping the
permit revision system from becoming completely overwhelmed. [NPRA, ACC,
DoD, CAIP, Auto Alliance, CASE, Air Permitting Forum]
• States that do not offer off-permit processes should be required to adopt them.
[CASE]
• Confusion about off-permit processes discourages States from using it. [Air Permit-
ting Forum]
• When concurrent EPA review is used, minor changes from draft to proposed rule
should not trigger another 45 day EPA review. [Indiana DEM]
• Errors in the Title V permit should be corrected by administrative permit amendments
or minor permit modifications. [Lilly]
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• Minor permit modifications should only include changes requested by the source.
Some permitting authorities add new provisions in this process, and sources can only
appeal the modification if they disagree with the unsolicited changes. [UARG]
• Addition or revision of terms not requested by the source should be accomplished by
reopening or at renewal. [CASE]
Operational flexibility
• Operational flexibility is crucial for businesses to change to stay competitive. [API,
NPRA, GPA, 3M, ACC, NPRA]
• States should utilize operational flexibility provisions. [Murawski]
• Flexible permits based on advance approvals provide significant flexibility for
sources to make changes and remain economically competitive. [3M, Lilly]
• EPA should issue rules for flexible permits [CAIP]
• Permits should be written to retain inherent flexibility. [Lilly, Auto Alliance, RR
Donnelly]
Interaction with NSR permitting
• Multiple, duplicative, or overlapping permit review processes are inefficient, con-
sume resources, and delay startup of construction and operation. [NPRA, Honda,
AFP A, GPA, API, RAPCA, Alabama DEM
• Off permit provisions provide an opportunity to streamline NSR permitting into Title
V. [API, AFP A, Michigan DEQ]
• Minor permit modifications, administrative permit amendments, or other streamlined
processes should be used to incorporate NSR terms into the Title V permit. [API,
NPRA, Honda, Michigan DEQ, ACC, AFP A, GPA, Lilly, Auto Alliance, Alabama
DEM]
• EPA should clarify the meaning of the different minor permit modification gatekeep-
ers to address permit changes which were first processed in NSR permitting. [Auto
Alliance]
• Concurrent NSR and Title V reviews help reduce burden and delay. [AFPA]
• EPA should issue rules regarding concurrent NSR and Title V review procedures.
[CAIP]
• Sources should be able to begin construction and operation if an NSR permit has been
issued prior to final Title V permit modification. [New Jersey DEP, Honda, Auto Al-
liance]
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Task Force Discussion
The issues regarding the ability of the Title V program to keep the Title V permit up-to-
date can be distilled into finding the best allocation among three competing interests:
resources expended by the permitting authorities and sources [staff time and costs];
timeliness for the sources; and public awareness of and access to permit modification
information. Task Force members expressed strong views about how best to implement
permit revisions and operational flexibility requirements, and those views depended
greatly on which of the three interests [resources, timeliness, and public ac-
cess/awareness] was most important to each member of the Task Force.
Notwithstanding these differences, the Task Force members generally agreed with the
concept that the amount of process associated with a permit modification should be pro-
portional to the level of discretion exercised by the permitting authority to incorporate the
changes into the permit, and to the degree of environmental significance associated with
that discretion. For example, if the permit modification is a change that entails a straight-
forward incorporation of previously established requirements into the permit, then the
permit modification process should generally be short and simple. The degree of discre-
tion being exercised by the permitting authority is in the context of revising the Title V
permit, and not the discretion within the underlying applicable requirement. One envi-
ronmental group Task Force member stated agreement with this general concept, but
expressed concern that when permits are revised without public notice, it is difficult or
impossible for the public to determine whether permitting authorities are correctly apply-
ing the proper permit revision process. That member also noted that there are substantial
differences of opinion regarding the circumstances under which a permit revision entails
an exercise of the permitting authority's discretion.
One Task Force member representing permitting agencies suggested, based on extensive
public comment and testimony, that if the complexity and burden of the permit revision
process is inhibiting permit authorities from revising permits, then the Title V program is
not achieving a goal of having the permit reflect the current requirements for the source.
After discussing the long history of failed attempts to "fix" the permit revision rules, the
Task Force did not reach consensus that the existing permit revision rules should be
changed. Most members agreed that while the current system is complex and burden-
some, future changes were more likely to increase the complexity and burden of the rules
than to reduce it. Many Task Force members suggested the most logical path for reduc-
ing the complexity and burden of the rules could be achieved through EPA education and
outreach to permitting authorities, and, if necessary, guidance or best practice documents,
rather than rule revisions. As a result of this recognition, the Task Force recommenda-
tions that appear later in this paper are divided into two categories: recommendations
that can be implemented under the Part 70 rules as they now exist, and recommendations
that would require a revision to the Part 70 rules. This approach allowed Task Force
members that believe the rules do not need revision to vote in favor of recommendations
in the latter category without being considered to agree with a rule change.
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When a permit revision is needed: Industry representatives on the Task Force suggested
that one way that EPA could reduce the complexity of the Title V program would be for
the agency to clarify that permit revisions are required only in specific circumstances:
when an applicable requirement is created or revised and off-permit procedures are not
available, or when the source proposes an activity that is inconsistent with or in violation
of existing permit terms. In the second instance, these Task Force representatives sug-
gested the permit should be revised to accommodate the proposed activity, but only if the
revisions are consistent with the underlying applicable requirements [/'.e.,MACT rule or
NSR permitting requirements], and all other Title V requirements are satisfied. Permit
revisions should not be required, however, in other situations. For example, while it
might be useful, or even desirable for a Title V permit to be revised when a source is
adding a new emissions unit to the facility or modifying an existing emissions unit, a
permit revision is not required if the change does not create any new applicable require-
ments or modify existing applicable requirements for the emissions unit. Environmental
group representatives on the Task Force did not agree with this proposed clarification.
New Applicable Requirements: Industry and permit agency Task Force members ex-
pressed concern with the amount of process required to add new or amended regulatory
requirements to a Title V permit through the permit re-opening process. They noted that
for most re-openings, there is little discretion exercised by the permitting authority, for
example, when new or amended MACT requirements are added to a permit. The existing
Part 70 rules, however, require significant permit modification procedures and additional
process to re-open the permit. Many Task Force members observed that permitting
agencies are either not re-opening permits or they are using alternative approaches such
as requesting sources file applications for permit modifications or using off-permit pro-
cedures.
Industry and permit agency representatives on the Task Force supported the idea that
minor permit modifications or off-permit procedures be used to update permits in lieu of
reopening. Consequently, the Task Force recommended that EPA encourage permitting
authorities to use minor permit modifications and off-permit procedures instead of re-
opening Title V permits as contemplated by Title V. This could be accomplished without
revising the Part 70 rules. Environmental group Task Force members opposed this rec-
ommendation because of concerns about reduced public awareness of and access to
permitting decisions.
Choosing a Type of Revision: Several industry Task Force members described the
confusion caused when permitting authorities and EPA regional offices inconsistently
apply permit revision procedures. The confusion often led to delays, which could be
prevented if there were clearer definition of the types of changes that fell into each permit
revision process. As a result, the Task Force recommended that EPA clarify the scope
and applicability of the various permit revision processes - primarily through training and
outreach efforts. Formal guidance is not necessary, but greater clarity is essential. This
could be accomplished without revising the Part 70 rules.
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Off-Permit Changes: Industry Task Force members reiterated the statements of many
commenters that the off-permit process was keeping the permit revision process from
collapsing under its own weight. These members encouraged greater use of the process.
The process should be supported more since it enables timely changes and employs
notification to permitting authorities. Furthermore, the process requires both the permit-
ting authority and the source to maintain copies of the notices and the applicable re-
quirements. The process could potentially be improved by increasing public awareness
of when off-permit procedures were employed. These Task Force members expressed
concern that some States did not adopt off-permit procedures. Based on these issues, the
Task Force suggested three recommendations to increase the use of off-permit procedures
and to increase public awareness of off-permit submittals. These recommendations could
be accomplished without revising the Part 70 rules. Environmental group Task Force
members voiced opposition to "off permit" changes because they make it so that the
public cannot rely on a permit as a comprehensive statement of a facility's Clean Air Act
obligations.
While the Task Force recognized that using off-permit notifications is somewhat incon-
sistent with the goal of keeping the Title V permit current, under the current program
most felt it necessary since it is the only way that a source can timely comply with new
requirements when the permitting authority has not revised the permit. While not agree-
ing that part 70 rules should be revised, the industry and permit authority members of the
Task Force agreed that if part 70 was changed, the off-permit procedure could be elimi-
nated, if sufficiently streamlined procedures were developed matching procedure with the
discretion in recording the requirement in the Title V permit and the significance of the
change to the permit. Environmental group representatives did not agree with this sug-
gestion.
Administrative Amendments: Industry Task Force members suggested that the adminis-
trative permit amendment procedures are under-utilized. They suggested that there are a
large number of changes to Title V permits that reflect no discretion on the part of the
permitting authority that could be good candidates for administrative permit amendments.
Most State regulations, however, are based on the default administrative permit amend-
ment categories described in the Part 70 rules. Permitting agencies are generally not
taking advantage of authority provided to them in 40 CFR 70.7(d)(l)(vi). This provision
allows EPA to approve a Title V program that allows administrative permit amendments
for permit revisions that are similar to those revisions specifically identified in the regula-
tions as suitable for inclusion by administrative amendment. As an example of a change
that should qualify for incorporation by administrative amendment, industry Task Force
members pointed to incorporation of new MACT or NSPS requirements into the permit,
or other similar changes where little or no agency discretion is exercised. Environmental
group Task Force members disagreed with this example, stating that incorporation of a
MACT or NSPS standard may entail an exercise of discretion because the permitting
authority is obligated to add monitoring, recordkeeping, and reporting obligations as
needed to assure a source's compliance with such requirements. Many Task Force mem-
bers supported a recommendation to encourage States to broaden the scope of changes
that can be incorporated into a permit by administrative amendment, and for EPA to
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approve Title V programs that have broadened administrative amendments appropriately.
This recommendation could be accomplished without revising the Part 70 rules.
Permit Flexibility: Representatives of industry and permitting authorities on the Task
Force agreed with several commentors that EPA should encourage greater use of tools to
make Title V permits flexible. Task Force members cited numerous techniques to retain
and create flexibility. For example, a number of Task Force members recommended that
permitting agencies should not issue permits that restrain the inherent flexibility of a
permit, that is, a permit should not restrict changes that have no impact on the applicable
requirements incorporated into the permit or flexibility explicitly provided in the applica-
ble requirements. In addition, a number of Task Force members recommended greater
use of advance approval provisions [as a form of alternative operating scenarios] that
allow a source to undertake changes upon notice provided that the type of change is
described in the permit and the applicable requirements relevant to the change are already
incorporated into the permit. These recommendations could be accomplished without
revising the Part 70 rules. Environmental group Task Force members opposed these
recommendations because of concerns regarding public awareness of the changes being
made.
Title I/Title V Revision Streamlining: Industry and permitting authority Task Force
members also agreed with commenters that there needs to be greater coordination and
streamlining between New Source Review and Title V permit revision procedures for
those permitting agencies that have separate construction and operating permit programs.
Many Task Force members joined in recommending administrative permit amendments,
minor permit modifications, and off-permit procedures as the preferred means of author-
izing operation of changes subject to pre-construction permits. This could be accom-
plished without revising the Part 70 rules.
Environmental group members on the Task Force pointed out that the current Part 70
regulations already allow a change that is processed under the Clean Air Act's "minor
new source review" procedures to be added to a Title V permit as an administrative
amendment, so long as the public process accompanying that change was substantially
equivalent to what Title V requires. Because EPA recently revised its New Source Re-
view regulations to allow many more changes to be processed under minor NSR, the
Task Force member explained that it was more important than ever to ensure that those
changes were subject to public review under either NSR or Title V procedures. Several
State and industry Task Force members disagreed with the need for public review of
minor NSR changes.
Permitting agency representatives on the Task Force requested that States be allowed to
use simultaneous public notice and permit processing for issuing pre-construction permits
and modifying Title V permits without needing some type of EPA approval to engage in
the simultaneous processing. Some States have found that EPA will not allow simultane-
ous processing unless the State has a memorandum of understanding or some other ap-
proval from the relevant EPA regional office. This could be accomplished without revis-
ing the Part 70 rules.
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Scope of Permit Revisions: Industry representatives on the Task Force expressed con-
cern that when a source submitted a request for a permit revision, some permitting au-
thorities were adding changes to the permit that were not relevant to the change requested
by the source, and in some cases, the source did not agree with the State-initiated
changes. This practice placed sources in a difficult situation. A source could end up
expending resources and time negotiating with the permitting authority on the disputed
changes, a process that could delay the changes being sought by the source when the
rules require that the permitting authority follow reopening procedures under such cir-
cumstances. Industry Task Force members noted that if a source applies for a permit
modification, that the modification is supposed to be limited in scope to changes sought
by the source, unless agreed to by the source. Adhering to this rule requirement could be
accomplished without revising the Part 70 rules. The Task Force also considered a rec-
ommendation that EPA should object to any permit modifications if a source petitioned
EPA to object on the basis that the permitting authority added terms through the modifi-
cation that were not requested and agreed to by the source - unless the permitting author-
ity accomplished the change through permit reopening procedures.
Notice procedures: Environmental group Task Force members expressed concern that
not all permit revisions undergo public notice and comment prior to being issued. This
prevents the public from adequately knowing when a permit is being changed, and pre-
vents the public from being able to express its concerns about a permit revision. These
members supported a general recommendation that Part 70 be revised to require public
notice and comment for all Title V permit revisions. Industry and permitting authority
representatives opposed this recommendation because of the additional cost and time
delays such as system would impose for all changes, including those which are minor in
nature or require no decision making on the part of the permitting authority. Environ-
mental group representatives noted that there were many possible approaches to provide
for public review of permit revisions, and that public participation procedures could vary
depending on the type of permit revision at issue. Due to the lack of interest among
industry and permitting authority representatives in this type of recommendation, how-
ever, environmental group representatives chose not to present more specific public
participation proposals for discussion.
Environmental group Task Force members expressed concern that the current minor
modification procedure allows permits to be changed without public notice or an oppor-
tunity for public comment, even where the public was heavily involved in the develop-
ment of the original permit. These members explained that members of the public could
obtain improvements in the initial permit, only to see these improvements eliminated in a
piecemeal fashion without public review. Industry representatives on the Task Force
noted that in their experience, permits are only modified if there is a new requirement or
equipment change and that it states do not revisit recently issued terms, particularly those
that had been the subject of comments.
Environmental group Task Force members also expressed concern that if a permit modi-
fication is made without public notice and an opportunity for comment, and the public
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later concludes that the modified permit terms are deficient, there is no regulatory dead-
line for EPA to respond to a public petition to reopen and revise the deficient permit.
They further explained that while the public has an inherent right to file a reopening
petition, and EPA has itself told participants at Title V training sessions about this oppor-
tunity, there are no regulations in place to guide the filing and processing of such peti-
tions. Environmental group representatives stated that the lack of a deadline for EPA to
act on such petitions is a significant problem, explaining that reopening petitions filed
many years ago are still pending before the agency. To address this concern, environ-
mental group Task Force members recommended revising the Part 70 rules to create
procedures for the public to petition permitting authorities and EPA to reopen/revise
permits for cause. The regulatory changes would include a deadline for the permitting
authority and/or EPA to respond to the petition. Industry and permitting authority repre-
sentatives expressed concern that reopening petitions might be used to argue decisions
that had been previously addressed in an earlier permitting process, and about the amount
of uncertainty/lack of finality this tool could add to the process. Environmental group
Task Force members responded that insofar as reopening petitions add uncertainty or lack
of finality to the process, that already exists because the public already has the right to
petition for a permit to be reopened, and EPA and permitting authorities already have the
right to reopen and revise a permit either in response to a petition or on their own accord.
They explained that by issuing regulations, EPA would be adding more certainty to the
process.
Potential Changes to Part 70 If Otherwise Reopened: Although not generally suppor-
tive of revising the Part 70 rules, Industry representatives on the Task Force stated that if
the Part 70 permit modification procedure are otherwise being revised, expanding admin-
istrative amendments to cover a broader range of changes to a permit is appropriate if the
permit revision requires little discretion by the permitting agency (e.g., incorporating a
new applicable requirement into the permit like a MACT standard or the terms of a con-
struction permit). Several permitting authority representatives on the Task Force con-
curred with this view but Environmental group representatives on the Task Force op-
posed this recommendation.
In addition, permitting agency and industry Task Force members also suggested that if
the part 70 rules were otherwise being revised, they should allow a Title V permit revi-
sion to be processed without additional public notice and comment if the process to create
a new or revised permit term already included public notice and comment (e.g., an NSR
permit that includes public notice and comment or rules), provided that the applicable
requirement contains those terms that are otherwise required under Section 70.6. This
would allow States to incorporate NSR permit requirements into the Title V permit using
the minor permit modification process instead of the significant permit revision process,
as is required currently for Title I modifications. This approach would also make clear
that incorporating regulatory requirements such as MACT standards or NSPS require-
ments could be accomplished through administrative permit amendments or minor permit
revisions.
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Recommendations
Recommendations #1-9 are based on implementation of the Part 70 regulations as they
currently exist - that is, the Task Force recommends implementing these recommenda-
tions without changing the Part 70 regulations.
Recommendation #1 [Permit reopening]
In implementing the current rules, EPA should encourage permitting authorities to use
minor permit modification or off-permit procedures to add new applicable requirements
to the Title V permit instead of using the permit reopening/ significant permit modifica-
tion track.
In Favor (11)*: Morehouse, Freeman, Paul, Hagle, Sliwinski, Broome, Wood,
Schwartz, Golden, Kaderly, Hodanbosi
Opposed (7)*: Owen, Van Frank, Palzer, Keever, Raettig, van der Vaart, Powell
Abstentions:
Clarifications:
*Note: Number in parentheses () is the total number of Task Force members voting for this position.
Recommendation #2 [Permit revisions]
In implementing the current rules, EPA should clarify the scope and applicability of the
various permit revision processes through training and outreach efforts. In particular,
EPA should provide examples of the types of changes that fit into each of the revision
tracks.
In Favor (17): Keever, Powell, Van Frank, Morehouse, Freeman, Paul, Hodanbosi,
Hagle, Wood, Raettig, Owen, Palzer, Golden, Schwartz, Kaderly, Broome, Sliwinski
Opposed (1): van der Vaart
Abstentions:
Clarifications: Hodanbosi supports with a request that the outreach and education mate-
rials include examples from permitting authorities, and that the examples clearly iden-
tify which modification track is applicable to the modification.
Recommendation #3(a) [Off-permit]
In implementing the current rules, EPA should encourage greater use of off-permit notifi-
cation changes to address new MACT standards, NSPS and minor NSR permit terms.
In Favor (10): Morehouse, Freeman, Paul, Hodanbosi, Hagle, Wood, Golden, Schwartz,
Kaderly, Broome
Opposed (8): Keever, Powell, Van Frank, Raettig, Palzer, van der Vaart, Owen, Sliwin-
ski
Abstentions:
Clarifications: Sliwinski clarifies that though EPA allows off-permit revisions, it should
not engage in promoting its use.
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Recommendation #3(b) [Off-permit]
In implementing the current rules. FP A should encourage Suites lhat ha\e not ack>plccl the
off-permit notification process to adopt ancl mili/e this process
/n Favor (V): Morehouse. Freeman. Pan I. I lodanhosi. Wood, (ioldcn. \ an dor Vaarl.
kaderly. Broome
Opposed (7): kee\er. Powell. \'an hank. Palzer. Owen. Raettig. Sliwinski
Abstentions (2): Schwartz. I lade
Clarifications: kaderly supports with clarification that while Part 7<) pro\ides an off-
perniit process, it is not a re(.|iiireel element Thus FPA should only encourage off-
permit procedures and not require them Sliwinski clarifies that though FPA allows
ol'l'-permit re\isions. it should not engage in promoting its use
Recommendation #3(c) [Off-permit]
In implementing the current rules, permitting authorities should develop methods to
increase public awareness of off-permit notifications that have been received.
In Favor (18): Morehouse, Freeman, Paul, Hodanbosi, Hagle, Wood, Kaderly, Keever,
Powell, Van Frank, Raettig, Palzer, Golden, van der Vaart, Schwartz, Owen, Broome,
Sliwinski
Opposed:
Abstentions:
Clarifications:
Recommendation #4 [Administrative permit amendment]
In implementing the current rules. FPA should exercise its authority under 4<) (TR
7<) 7(d)( I )(\ i) to appro\ e State permitting programs that allow the administrate e permit
amendment process to he used for changes similar to those in 7t) 7(d)(I )(i) through
(d)(I )(\ ) For example, administrate e permit amendments should he allowed lor
straightforward incorporation of new MACT. \SPS. other regulatory requirements, or
appeal settlements Changes eligible for incorporation as administrate e permit amend-
ments should he those that require little or no agency discretion
In Favor (12): (ioldcn. \ an der Vaarl. Morehouse. Freeman. Schwartz. Paul. Ilodanhosi.
Ilagle. Wood, kaderly. Broome. Sliwinski
Opposed (4): Raeltig. Powell. kee\er. Palzer
Abstentions (2): Van Frank. Owen
Clarifications: Powell opposes because she does not helie\e that the examples gi\en are
appropriate lor incorporation by administrati\e amendment Palzer joins Powell s
clarification.
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Recommendation #5 [Operational flexibility]
In implementing the current rules. I-IW should encourage greater use of llic operational
llcxihilily tools. such as inherent permit flexibility (I'-.y.. changes lhal ha\e no impact nil
applicahle re(.|iiirements. flexibility prox iclecl explicitly in applicable requirements), and
ad\ ancc appro\ al pro\ isions
In l-'tmir (12): Broome. Paul. Sliwinski. I lade. I loclanbosi. Wood, freeman. More-
house. \an der Vaart. Kaderly. Schwartz. Ciolden
Opposed ((>): Powell. Van Frank. Palzer. Kee\er. Raettig. Owen
. I Intentions:
Clarifications: Kaderly la\ors pro\ided the llexibilily does not compromise enforceabil-
ity
Recommendation #6 [Relationship between NSR and Title V]
In implementing the current rules, EPA should encourage greater usage of streamlined
procedures to accomplish incorporation of new minor and major NSR requirements into
Title V permits in States that have separate construction and operating permit programs.
Administrative permit amendments, minor permit modifications, and off-permit proce-
dures should be the preferred methods for authorizing operation of minor and major NSR
permit changes.
In Favor (II): Broome, Paul, Sliwinski, Hagle, Hodanbosi, Wood, Freeman, Schwartz,
Morehouse, Kaderly, Golden
Opposed (6): Powell, Van Frank, Palzer, Keever, Raettig, Owen
Abstentions (I): van der Vaart
Clarifications: Sliwinski favors provided that all of the Title V requirements are re-
flected in the NSR permit, the NSR permit was subject to public notice and comment
when it was issued, and the notice is clear that both the Title V and NSR requirements
are being addressed. Kaderly favors provided the minor NSR program provides for
public notice.
Recommendation #7 [Scope of source requested permit modification]
In implementing the current rules, EPA should discourage permitting authorities from
including agency-initiated permit modifications that are beyond the scope of the modifi-
cation being requested by a source unless the source explicitly agrees to the proposed
modification.
In Favor (10): Broome, Paul, Sliwinski, Hagle, Hodanbosi, Wood, Schwartz, More-
house, Golden, Freeman
Opposed (7): Van Frank, Palzer, Keever, Raettig, Owen, van der Vaart, Kaderly
Abstention (I): Powell
Clarifications: Broome, Freeman, Golden, Morehouse, Paul and Wood clarify that the
rules already limit the scope of the modification to that which is in the source's appli-
cation. EPA should not only discourage the practice of permitting authority-initiated
changes, but should object to permit modifications initiated by the permitting author-
ity to which the source has not agreed, unless reopening procedures are followed.
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Recommendation #8 [Relationship between NSR and Title V]
In implementing the current rules, States should have the ability to use simultaneous
public notice and permit processing for the construction permit and the modification of
the Title V permit without requiring a memorandum of understanding between the per-
mitting authority and the Regional office [or some other approval process]. This recom-
mendation does not pertain to the ability of States to make EPA and public review peri-
ods concurrent.
In Favor (17): Broome, Paul, Sliwinski, Hagle, Hodanbosi, Wood, Freeman, Schwartz,
Raettig, Van Frank, Morehouse, Kaderly, Golden, van der Vaart, Powell, Keever,
Palzer
Opposed:
Abstention (I): Owen
Clarifications: Powell clarifies that the notice must make it clear that both the construc-
tion permit and the Title V permit are being modified. Keever and Palzer join Pow-
ell's clarification.
Recommendation #9 [When is a revision required?]
In implementing the current rules, EPA should clarify that the existing rules require a
permit revision only under the following circumstances:
• When a new or revised applicable requirement applies to the source, and the
off-permit procedures are not available; or
• When a proposed activity at the source would cause operations to be inconsis-
tent with or in violation of an existing permit term.
In Favor (II): Broome, Paul, Hodanbosi, Wood, Freeman, Morehouse, Schwartz, Kad-
erly, Hagle, Golden, Sliwinski
Opposed (5): van der Vaart, Raettig, Powell, Keever, Palzer
Abstentions (2): Van Frank, Owen
Clarifications:
Recommendations #10-14 are based on revising the existing Part 70 rules. Voting in
favor of these recommendations does not indicate that the Task Force member agrees that
the part 70 rules should be revised.
Recommendation #10 [Permit revisions]
EPA should provide the public with notice of and an opportunity to comment on, all
revisions to a Title V permit.
In Favor (6): Powell, Keever, Raettig, Palzer, Van Frank, Owen
Opposed (II): Broome, Paul, Sliwinski, Hagle, Hodanbosi, Wood, Freeman, Schwartz,
Morehouse, Golden, van der Vaart
Abstentions (1): Kaderly
Clarifications:
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Recommendation #1 I [Permit reopening]
EPA should promulgate regulations formalizing procedures by which the public may
petition State permitting authorities and the EPA to reopen and revise permits for cause
under 40 CFR 70.7(f) and (g). Such regulations should include a deadline by which the
permitting authority and/or EPA must respond to a reopening petition.
In Favor (9): Powell, Keever, Raettig, Van Frank, Kaderly, Sliwinski, Schwartz, Palzer,
Owen
Opposed (8): Hodanbosi, Wood, Freeman, van der Vaart, Broome, Paul, Morehouse,
Golden
Abstentions (1): Hagle
Clarifications: Sliwinski clarifies that issues addressed previously cannot be challenged
again through this process. Kaderly clarifies that there must be safeguards in the
process to prevent petitions for issues that have already been addressed, and to assure
there is some finality to the permitting process (/'.e.,the petitioner must show why it
was impracticable to raise the issue during the public comment process). Paul clari-
fies that although the concept has merit, the lack of safeguards in the process to pre-
vent petitions that revisit issues, and the lack of finality to the permitting process cre-
ate too much uncertainty to support.
Recommendation #12 [Off-permit]
II" l-P.\ amends the permit ic\ision procedures, the eMail of procedure lor re\ising a
Title V permit should be proportionate to the degree of discretion a\ailable in the Title V
context and to the potential en\ironmaital impact associated with the exercise of that
discretion If the extent of procedure is matched to the significance of the change consis-
tent with these principles, the off-permit pro\isions of section 7t) 4(b)( 14) could be elimi-
nated in la\or of a process that updates the Title V permit contemporaneously with
changes at the facility
In Favor (II): Paul. Broome. I lagle. Schwartz. Kaderly. (iolden. Hodanbosi. Wood.
Freeman. Sliwinski. Morehouse
Opposed ("): Raettig. Van Frank. \an der Vaart. Owen. Palzer. Powell. kee\er
. 1 bstentions:
Clarifications: Broome supports with clarification that the degree of discretion exercised
by the permitting authority is in the context of the Title V re\ision as opposed to the
underlying applicable requirement
Recommendation #13 [Administrative permit amendments]
If EPA amends the permit revision procedures, the Part 70 rules should be amended to
clarify that the administrative amendment process should include any change to a permit
term that requires little discretion (t'.#.,incorporating a new applicable requirement into
the permit like a M ACT standard or the terms of a construction permit).
In Favor (12): Broome, Paul, Flodanbosi, Wood, Freeman, Morehouse, Hagle, van der
Vaart, Kaderly, Schwartz, Golden, Sliwinski
Opposed (6): Owen, Palzer, Van Frank, Keever, Raettig, Powell
Abstentions:
Clarifications: van der Vaart favors provided the permit shield is explicitly applicable.
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Recommendation #14 [Streamlined processes]
If EPA amends the permit revision procedures, the process to create a new or revised
permit term already includes public notice and comment (e.g., an NSR permit that in-
cludes public notice and comment or rules), public notice and comment should not be
required to incorporate it into the Title V permit, provided that the applicable requirement
contains those terms that are otherwise required under Section 70.6.
In Favor (12): Broome, Paul, Hodanbosi, Kaderly, Hagle, van der Vaart, Wood, Free-
man, Morehouse, Schwartz, Golden, Sliwinski
Opposed (6): Van Frank, Keever, Owen, Palzer, Raettig, Powell
Abstentions:
Clarifications:
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Appeals and Petitions
5.8 Topic: Appeals and Petitions
Issue/Observation Description
What this Paper Addresses: If a person disagrees with the terms of a Title V permit that
is proposed and issued, there are two paths provided in the rules to seek changes to the
permit. If the permit has been issued, a party may file an appeal of the permit. Typically,
this occurs through the State agency's administrative appeal process and then proceeds,
as necessary, to State courts. In general, permittees that disagree with permit terms will
follow the path of appealing the permit. The other path to challenge a Title V permit is to
petition the EPA to object to the permit. Typically, members of the public that object to a
permit petition EPA to object rather than filing an appeal through the State administrative
process. This paper addresses the problems that have arisen in each of these paths, with a
particular focus on the slow response time by States to appeals and by EPA to petitions.
Legal Requirements:
Permit Appeals: Section 502(b)(6) of the Act requires that a part 70 program provide
"an opportunity for judicial review in State court of the final permit action by the appli-
cant, any person who participated in the public comment process, and any other person
who could obtain judicial review of that action under applicable law." Section
70.4(b)(3)(x) of the Title V rules requires that each State program provide an opportunity
for judicial review in State court of the final permit action by the applicant, any person
who participated in the public participation process and any other person who could
obtain judicial review of such actions under State laws.
Petitions to EPA: Under Section 505(b) of the Act, any person may petition EPA to
object to the issuance of a Title V permit within 60 days after the expiration of the 45-day
EPA review period for a permit. The objections in the petition must have been raised
during the public comment period on the permit provided by the State permitting
authority, unless the petitioner shows that it was impracticable to raise the objections at
that time or that the grounds for the objection arose after that period. The petition does
not postpone the effectiveness of a permit that has been issued. Section 505(b)(2) states
that EPA must grant or deny any such petition within 60 days after it is filed. If EPA
denies a petition, the denial is subject to judicial review in the Federal appeals court.
EPA has implemented these statutory requirements in Section 70.8(d) of the Title V
rules.
Supporting Information: Comments Received
The overwhelming tenor of the comments received on this issue focused on a lack of
responsiveness by EPA to filed petitions and by State administrative bodies or State
agencies (regarding timely settlement discussions). The comments are summarized
below.
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Permit Appeals: While several people mentioned appeals in their comments, the most
detailed and substantive comments received were from the National Environmental De-
velopment Association's Clean Air Project, NED A/CAP. The NED A/CAP comments
are in the docket and are quite extensive. They cite to Indiana as an example of a State
with a permit appeal backlog, with 47 permit approvals being appealed in FY 04 alone
and that there are 150 appeals pending. NED A/CAP indicates in its comments that this
backlog is not unusual. This presents a problem for NEDA/CAP members because they
are required to comply with permit terms while appeals are pending, even if they are
wrongly imposed. In addition, if a company cannot comply with a permit condition, it
must submit deviation reports and disclose the deviation in its compliance certifications,
even if it believes the permit term does not accurately represent the requirements of the
Clean Air Act. NEDA/CAP explained that this puts a source in an unacceptable situation
and that there is currently no leverage to force a State to move forward with an appeal. In
addition, NEDA/CAP observes that some States are treating the permit appeal process as
part of the permit negotiation and not providing meaningful responses to comments filed
or opportunities for input prior to issuance of the permit. In addition, even when a permit
appeal is settled, the source is required to apply for a full permit revision. There is no
process to allow for expeditiously changing the permit once there is agreement that the
original terms were in error.
The examples provided in the comments are too numerous to repeat here but the follow-
ing is typical of the problems illustrated therein. In one case that was submitted to the
Task Force, a petrochemical plant received a draft permit in Summer 2001, which con-
tained numerous technical errors. The permit was issued in September 2001, nine weeks
after the close of comment, still with every error that the company had asked to be
changed in its comments on the draft and with no meaningful response to the company's
comments. The company appealed the permit in October 2001. During negotiations on
the permit appeal, the State agreed that the terms were incorrect and the company agreed
to apply for a significant permit modification. During the permit appeal, the company
filed numerous deviation reports, including two annual compliance certifications where it
could not certify continuous compliance; it explained in each that the deviation was not a
violation because of the permit flaws under appeal. Nonetheless, the State agency's
enforcement office began issuing NOVs with penalties. Final negotiations and settlement
of the enforcement action and the permit appeal were concluded shortly before the end of
2004, well over three years after the permit was issued.
In view of this and other examples, commenters to the Task Force expressed concern that
the length of time it has been taking to resolve appeals is more than half of the permit
term and sometimes can extend until renewal. This means that even though the permittee
appeals the permit, it has no effective avenue for relief because the appeal may not be
resolved before a renewal application is due 3.5 years later.
Petitions to EPA: Three major issues surrounding petitions were identified in public
comments. First, commenters stated that EPA is either slow or fails to respond to citizen
petitions. They indicated that petitioners are forced to file deadline lawsuits or new
petitions to force EPA to make decisions on petitions. Second, commenters noted that
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petitioners, the State agency that issued the permit, and other Title V sources and States
with an interest in resolution of any issues raised in the petition, are provided little or no
information about the decision-making process and no opportunity to provide input into
the decision. Third, commenters stated that the petition process is being used not just to
raise and resolve issues regarding the application of the facts of a particular permit to
established law, but also to create law on issues of critical importance to the Title V
program that they believed ought to be resolved through rulemakings or nationally appli-
cable final actions.
Timing of Responses: While not entirely complete or comprehensive, the Task Force
reviewed EPA's petition database to get a sense of the volume and response times for
petitions that have been filed since 1996. The data on the website as of December 1,
2005, indicated the following. The EPA petition database currently reveals that in 2005,
7 petitions were filed, but none have been decided. In 2004, 21 petitions were filed: 13
have final decisions, and 8 are still pending. In 2003, 30 petitions were filed, one regard-
ing Illinois' Title V program which is still pending, 13 of which were "dismissed", 10
others which are still pending, and 6 which have been decided. In 2002, 29 petitions
were filed, one regarding Wisconsin's Title V program, of which 20 have been decided.
In 2001, 27 petitions were filed, and all but 4 have been decided. In 2000 there were 54
petitions filed. Two of these were withdrawn. A number of the petitions addressed the
same facility but were filed by different parties, and 6 are still pending. From 1996 to
1999, there were 20 petitions filed. Three others are also still pending and one was with-
drawn.
See http://www.epa.gov/region07/programs/artd/air/title5/petitiondb/petitiondb.htm.
Transparency of the Response Process: The second issue involves the process used to
respond to petitions. While citizen petitions are being decided, stakeholders have little to
no input into the petition decision process, and it is not apparent that there is any sort of
standardized process for EPA to address petitions. Commenters to the Task Force
wanted to know what the process was for EPA's decision. Commenters reported that
typically when a petition is filed, EPA's statutory 60-day response period passes without
response or attempt by EPA to communicate with the citizen petitioner, facility or even
the State or local agency who issued the permit. Both citizen petitioners and the facilities
for which petitions were filed stated that they were excluded from EPA's decision proc-
ess. Decisions come a year or more after filing and often there is no interaction with the
involved parties (except the State agency). Commenters also requested information
regarding the precedent setting nature of EPA decisions on petitions - i.e., what, if any,
weight is given to other EPA petition decisions. Finally, the delay in obtaining decisions
on petitions has further complicated the permit issuance process in that the proposed or
final permit may undergo several revisions that may or may not be subject to public or
even facility input during the response process.
Nature of Issues Raised and EPA Responses. The third issue involves the nature of
issues being raised in petitions for objections and of EPA's responses. Commenters
submitted comments stating that the purpose of the EPA objection and citizen petitions
for objection is to determine and resolve issues regarding the application of the facts of a
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particular permit to established law. One commenter pointed out that, because a number
of important program issues have not been resolved through other means (e.g., through
rulemaking or nationally applicable interpretive rules), the EPA objection and petition
process is being used not just to apply law to facts, but to develop that law in the first
instance. The commenter pointed out that over that past ten years, EPA has been faced
with dozens of petitions for objection that raise important legal questions regarding basic
elements of the programs. The commenter believes that the short-timeframes for EPA
responses (i.e., 60 days), the lack of procedures for public input, and the limitations on
judicial review, make clear that Congress did not intend EPA to resolve important, na-
tionally applicable, legal issued by this mechanism. The lack of notices to and proce-
dures for participation by other parties affected by EPA's resolution raises issues of
fairness because, once EPA announces its view of the law the Agency is bound to follow
it in other permitting proceedings as well. The commenter felt that is the issues raised in
a petition involved significant interpretation of law, EPA has no choice but to deny the
petition pending completion of an appropriate proceeding to resolve the issue. Com-
ments of the Utility Air Regulatory Group, OAR-2004-0075-0055.
Task Force Discussion
Permit Appeals: The Task Force noted the extensive testimony provided regarding the
inability to resolve appeals in a timely manner and that some permits were actually com-
ing up for renewal before the appeals had been resolved. Some members indicated that
the State appeals boards had not been prepared for the volume of appeals that could ensue
from the Title V process. While this was arguably predictable given the overall number
of Title V permits, it did not appear that attorneys to handle appeals on behalf of the State
or the appeals boards' staff had increased in anticipation of Title V appeals. One Task
Force member observed that in his area there may be a lot of appeals but one or two
thematic issues are underlying all of them and if the State could resolve those issues, the
appeals would be reduced substantially. The Task Force generally agreed that if a term is
being appealed repeatedly, it makes sense for the State to address that issue on a system-
wide basis and to do so quickly to avoid the cost of litigating appeals. The issue of Indi-
ana's program was raised. There, the State recognized that the same types of terms were
being appealed by several parties and the State developed a programmatic fix to address
these concerns. In the meantime, however, the State did not respond to appeals and many
appeals languished for a few years.
The Task Force discussed potential recommendations to try to ensure that States respond
to filed appeals. It was generally agreed that State attorneys should return phone calls
from the permittee and should engage in settlement discussions early in the process to see
if the appeal is merely based on a misunderstanding or if a mistake was made on the part
of the State. Some Task Force members indicated their experience (and cited to testi-
mony) that in many cases, the permitting authority realized that a mistake had been made
and that there was no real substantive disagreement between the facility and the State
regarding the appropriate permit terms. The problem was that it took so long to have
meaningful settlement discussions that the source was placed in the difficult position of
certifying to deviations in the interim period. The Task Force generally agreed that the
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attorneys for the State should be more responsive to appeals that are filed and seek to
determine which issues can be settled and which represent true disagreements so that they
can be litigated and ultimately resolved. The Task Force generally agreed that it is not
acceptable for appeals to remain pending for 2 or more years and that States should take
steps to ameliorate this problem.
Petitions to EPA: With respect to petitions, the Task Force discussed that EPA's process
of responding to petitions is not at all transparent. In many instances, petitions are filed
and neither the party who filed it nor the permitted facility is given any sense of EPA's
reaction until a decision is issued. The general impression on the Task Force was that
EPA generally does not contact any interested parties (including the facility, the State or
the petitioner) during its decision-making process. One member of the Task Force noted
some examples of EPA reaching out to petitioners and the permitting authority to try and
understand the reasoning behind the petition issues. Decisions on petitions are often
delayed for months and years. Like the States with the appeals process, the Task Force
discussed that it seems as though EPA was unprepared for receiving petitions and for
developing timely responses. One Task Force member suggested that EPA should in-
volve itself earlier in the Title V permit process (e.g., during its 45 day review) in order to
try and lessen the number of petitions it receives.
Some Task Force members suggested that where the issues being resolved are important
legal issues that could set precedent for other sources, there should be some broader
consultation and public process before a final resolution is issued. Industry members of
the Task Force cited to a situation where EPA used responses to petitions to interpret, or
in some Task Force members' view to reinterpret, its rules or develop or revise its policy
on important issues, like monitoring. Industry Task Force members noted that judicial
review of such decisions may not be available to other parties due to standing issues.
Some environmental group representatives noted, partly in response to the comments
submitted regarding resolution of programmatic issues, that the statutory time frames and
the need to address the enforceability of individual permits often necessitates that pro-
grammatic issues will be resolved in the factual context of an individual permit petition.
These members stated that where individual Title V programs were inadequate or permit-
ting authorities were not complying with Title V regulations in issuing permits, the only
way the program or permits issued under the program could be improved is through the
individual Title V permit petition process. It was clarified by other Task Force members
that the concern really goes to where EPA has not resolved the legal issue, e.g., monitor-
ing, and the petition will set legal precedent.
Environmental group representatives noted that EPA only seems to respond to petitions
when it is sued for unreasonable delay and that if a petitioner does not have the resources
to sue EPA, the petition is placed at the bottom of the pile and decisions take years or are
never issued.
One Task Force member noted that it is unclear what information EPA uses to decide
how to resolve a petition. The petitioner may attach information they think is relevant
but it is unclear whether EPA is considering the information submitted or other informa-
FINAL REPORT
266
April 2006
-------
Process Issues
Appeals and Petitions
tion that is not available to the petitioner. A Task Force member cited situations where
she had attached what she believed to be relevant information to her petition and EPA
relied on other information to deny the petition without communication to her. One Task
Force member also wondered what it would take to get issues that repeatedly come up in
petitions and appeals in a certain State resolved when the cause is a programmatic flaw.
This Task Force member stated that EPA should work with States to resolve program-
matic issues.
One Task Force member also noted the conflict between a petition on a permit pending
before EPA at the Federal level and the potential for conflicting decisions from a State
permit appeal regarding the same permit.
It was generally recognized that EPA is trying to become current with petitions but that a
large backlog has developed. It was also recognized by most Task Force members that
all interested parties, the petitioner, the facility, the State agency and EPA, should be
involved in the resolution of a petition. In short, the process should be more transparent.
Recommendations
Recommendation #1
States should substantively respond to public comments to minimize the need for appeals
and petitions in the first instance.
In Favor (16)*: Broome, Freeman, Hagle, Kaderly, Keever, Morehouse, Owen, Palzer,
Paul, Powell, Raettig, Schwartz, Sliwinski, Wood, Golden, Hodanbosi
Opposed:
Abstentions:
Clarifications:
*Note: Number in parentheses () is the total number of Task Force members voting for this position.
Recommendation #2
States should resolve and address appeals in a timely manner.
In Favor (16): Broome, Freeman, Hagle, Kaderly, Keever, Morehouse, Owen, Palzer,
Paul, Powell, Raettig, Schwartz, Sliwinski, Wood, Golden, Hodanbosi
Opposed:
Abstentions:
Clarifications:
FINAL REPORT
267
April 2006
-------
Process Issues
Appeals and Petitions
Recommendation #3
In the context of an appeal. attorneys lor the State agency and the source should make
contact as early as possible to determine il'a slay ol'lhe appealed terni(s) is appropriate
In Favor (9): Broome. Paul. Wood. Morehouse. Freeman. Schwartz, (iolden. I lade.
I lodanbosi
Opposed (3): Kee\ er. Owen. Palzer
Abstentions (4): Sliwinski. Powell. Raettig. Kaderly
Clarifications: W hile kee\er and Owen are in la\ or of early communication between
the State agency and the source they oppose making a recommendation on the possi-
bility of a stay because it is a function of State administrate e law
Recommendation #4
Expedited stay proceedings should be available in the event that the parties are not able to
agree whether a stay is appropriate.
In Favor (8): Broome, Paul, Wood, Morehouse, Freeman, Schwartz, Golden, Hodanbosi
Opposed (3): Keever, Owen, Palzer
Abstentions (5): Sliwinski, Powell, Raettig, Hagle, Kaderly
Clarifications: Keever and Owen oppose making a recommendation on the possibility of
a stay because it is a function of State administrative law.
Recommendation #5
Permitting authorities and EPA should address issues that are raised repeatedly in appeals
and petitions, respectively, on a program-wide basis.
In Favor (16): Broome, Freeman, Hagle, Kaderly, Keever, Morehouse, Owen, Palzer,
Paul, Powell, Raettig, Schwartz, Sliwinski, Wood, Golden, Hodanbosi
Opposed:
Abstentions:
Clarifications: Keever, Raettig, Van Frank, Powell, Palzer, and Owen clarify that they
do not intend this to imply that EPA can use its plan to address an issue program-wide
as a reason for not substantively addressing an issue in a filed petition.
Recommendation #6
EPA should take action to address concerns with the transparency of the process in cases
where EPA is addressing a precedent-setting/programmatic issue in an objection or in
response to a petition for objection.
In Favor (9): Broome, Morehouse, Paul, Hodanbosi, Freeman, Wood, Golden,
Schwartz, Sliwinski
Opposed (7): Kaderly, Powell, Owen, Van Frank, van der Vaart, Keever, Palzer
Abstentions (2): Hagle, Raettig
Clarifications: Kaderly, Powell, Owen, Palzer, and Keever opposed because of concerns
about vagueness.
FINAL REPORT
268
April 2006
-------
Process Issues
Appeals and Petitions
Recommendation #7
When EPA publishes a Federal Register notice that it has responded to a petition, the
agency should include a list of the issues resolved in the petition.
In Favor (16): Broome, Freeman, Hagle, Kaderly, Keever, Morehouse, Owen, Palzer,
Paul, Powell, Raettig, Schwartz, Sliwinski, Wood, Golden, Hodanbosi
Opposed:
Abstentions:
Clarifications:
Recommendation #8
EPA's database for petitions should be more user-friendly—searchable and organized in
a manner that provides interested parties with notice that potentially precedent-setting
issues have been resolved.
In Favor (16): Broome, Freeman, Hagle, Kaderly, Keever, Morehouse, Owen, Palzer,
Paul, Powell, Raettig, Schwartz, Sliwinski, Wood, Golden, Hodanbosi
Opposed:
Abstentions:
Clarifications:
Recommendation #9
l-PA and permitting authorities should engage in a dialogue with interested parties when
a petition is filed to determine if the issues can be resoKed and the petition withdrawn (in
whole or in part) Interested parties include petitioners, the permittee, the permitting
authority and I-PA representinges. A dialogue among interested parties should occur
within on days of the tiling of a petition to attempt to reach agreement regarding a time-
line for EPA to complete its petition response
In Favor (16): Broome. Freeman. I lagle. Kaderly. Morehouse. Palzer. Paul. Powell.
Raettig. Schwartz. Sliwinski. Wood. Owen. kee\er. Golden. Hodanbosi
Opposed:
Abstentions:
Clarifications: Freeman and Broome clarify that the dialogue should not be used to
resoKe important legal or policy issues nfleeting other sources or States in a non-
public lorum
Recommendation #10
EPA should not delay in providing meaningful, substantive responses to petitions filed.
In Favor (15): Broome, Hagle, Kaderly, Keever, Morehouse, Owen, Palzer, Paul, Pow-
ell, Raettig, Schwartz, Sliwinski, Wood, Golden, Hodanbosi
Opposed:
Abstentions (1): Freeman
Clarifications: Additional resources are needed to accomplish the goal of timely petition
responses.
FINAL REPORT
269
April 2006
-------
Process Issues
Appeals and Petitions
Recommendation #11
I'lW should de\elop procedures consistent with the need to timely respond to petitions by
which interested parties may hrinu to l-P.Vs attention information rele\ant to the e\alua-
tion of the petition These procedures should pro\ide that any such information is pro-
\ided to the petitioners when l-P.\ rccci\cs it
/// l-'aror (l(>): IJroome. I'reeman. I lade. Kaderly. Morehouse. Paul. Schwartz. Sliwin-
ski. Wood. kee\er. Owen. Powell, (iolden. Ilodanbosi. Palzer. Raettiu
Opposed:
. 1 Intentions:
Clarifications: Powell clarities that "information rele\ant to the e\aluation of the peti-
tion" should he limited to the permit, permit-related documents such as the permittinu
authority's response to comments, and other information that was before the permit-
tinu authority when it made its decision 011 the permit Additional information should
only he considered if it became a\ailahle after the permittinu authority reached its de-
cision 011 the permit Palzerand Raettiu join Powell s clarillcation I'reeman clarities
that interested parties includes other sources and State auencies with an interest in
resolution ol'anv issues raised in the petition
Related Topics: Public Participation, Response to Comments, EPA Review of Pro-
posed Permits
FINAL REPORT
270
April 2006
-------
APPENDIX A
List of Speakers at Public Meetings on Title V Implementation
Experience
final report
April 2006
-------
-------
Appendix A. List of Speakers at Public Meetings on
Title V Implementation Experience
Speaker Name
Speaker Affiliation
liils/lllliflfHI. JH ' .l/iih' 200-1
John Paul
Regional Air Pollution Control Agency
John Walke
Natural Resources Defense Council
Lyman Welch
Mid-Atlantic Environmental Law Center
Glynn Rountree
American Forest & Paper Association
Kelly Haragan
Environmental Integrity Project
Wayne Penrod
Sunflower Electric Power Association
('hicci^o. //. Sc/'icmbcr 14. 2004
Steve Murawski
Gardner, Carton, & Douglas
John Metzger
3M
Bruce Nilles
Sierra Club
Bill Wilson
Environmental Integrity Project
Scott Evans
Clean Air Engineering
Steve Meyers
GE
Anne Slaughter Andrew
CASE Coalition
Kathy Andria
American Bottom Conservancy
Faith Bugel
Environmental Law Policy Center
Keith Harley
Chicago Environmental Law Clinic
Dale Kalina
RR Donnelley
Brian Urbaszewski
American Lung Association of Metro Chicago
Maureen Headington
Stand Up/Save Lives Campaign
('hicci^o. //. Sc/'icmbcr /.\ 2004
Bob Hermanson
American Chemistry Council
Ann Alexander
Illinois Attorney General's Office
Susan Zingle
Lake County Conservation Alliance
Carey Hamilton
Ogden Dunes Environment Council
Ellen Rendulich
Citizens Concerning The Environment
Ikillas. IX Xowwbcr /.\ 20(14
Marian Feinberg
For a Better Bronx
Michael Boyd
Californians for Renewable Energy, Inc. (CARE)
Robert Hall
Nevada Environmental Coalition
David Frederick
Frederick Law (TX)
Robert Ukeiley
Georgia Center of Law in the Public Interest
Gary Abraham
Concerned Citizens of Cattaraugus County (NY)
Sharon Genasci
Northwest District Association Health and Environment
Committee
Scott Gollwitzer
Appalachian Voices (NC)
Avram Friedman
Executive Director of the Canary Coalition
Merrijane Yerger
Clean Up Louisiana
John Wilson
Galveston - Houston Association for Smog Prevention
(GHASP)
Alexandra Gorman
Women's Voices for the Earth
Kathy Van Dame
Wasatch Clean Air Coalition (UT)
Melissa Scanlan
Midwest Environmental Advocates
FINAL REPORT
April 2006
-------
Appendix A. List of Speakers at Public Meetings
on Title V Implementation Experience
(Continued)
Speaker Name
Speaker Affiliation
John Suttles
Tulane Environmental Law Clinic
David Monk
Oregon Toxics Alliance
Swati Prakash
West Harlem Environmental Action (WE ACT)
Jane Williams
California Communities Against Toxics
Reed Zars
Citizen attorney
Deborah Masters
Community Board 1 (Brooklyn) and Neighbors Against
Garbage ( \Y)
San I rancisco. (1 / chr/iarv -V. 2011?
Chuck Layman
Central Stales Air Resources Agencies (CLNSAIIA) and
Central Regional Air Planning Association (CENRAP)
Tammy Wyles
American Forest & Paper Products Association (AF&PA)
Debra Rowe
Alliance of Automobile Manufacturers
Doug Campbell
Iowa Department of Natural Resources
Catherine Fitzsimmons
Iowa Department of Natural Resources
Jack Broadbent
State and Territorial Air Pollution Program Administrators
(STAPPA) and Association of Local Air Pollution Control
Officials (ALAPCO)
Matt Reis
New York State Department of Environmental Conserva-
tion
David Farabee
American Petroleum Institute
Peter Hess
Bay Area Air Quality Management District
Norbert Dee
National Petrochemical & Refiners Association
Leslie Ritts
NEDA
George Hays
Environmental attorney
Mohsen Nazemi
South Coast Air Quality Management District
Bradley Angel
Greenaction for Health and Environmental Justice
Keri Bandies
Environmental Law and Justice Clinic at Golden Gate
University
Roger Lin
Environmental Law and Justice Clinic at Golden Gate
University
John Admire
Gas Processors Association (GPA)
Chris Korleski
Honda of American Manufacturing, Inc.
Dona Hippert
Northwest Environmental Defense Center
Celeste Draisner
Citizens for Clean Air
Dennis Bolt
Western States Petroleum Association
Don Cuffel
Valero Refining Company
Heidi Hollenbach
Michigan Department of Environmental Quality
Bill 0'Sullivan
New Jersey Department of Environmental Protection
Lisa Rector
Northeast States for Coordinated Air Use Management
(NESCAUM)
Jeff Kitchens
State of Alabama
Heather Abrams
Georgia Environmental Protection Division
FINAL REPORT
A-2
April 2006
-------
Appendix A. List of Speakers at Public Meetings
on Title V Implementation Experience
(Continued)
Speaker Name
Speaker Affiliation
Amy Mann
Delaware Department of Natural Resources and
Environmental Control
Ned Jerabek
New Mexico Environment Department
Shannon Therriault
Missoula, Montana City-County Health Department
Michael Lake
San Diego County Air Pollution Control District
FINAL REPORT
A-3
April 2006
-------
-------
APPENDIX B
List of Additional Written Comments Received on
Title V Implementation Experience
(Submitted to EPA Docket No. OAR-2004-0075)
final report
April 2006
-------
-------
Appendix B. List Of Additional Written Comments Received on
Title V Implementation Experience
(Submitted to EPA Docket No. OAR-2004-0075)
Docket
Item
Number
Commenter
Commenter Affiliation
0005
Carey Hamilton
Chair
Town of Ogden Dunes Environmental Advisory
Committee
0007
Anonymous
0016
Gas Processors Association
0017
William O'Sullivan, P.E.
Director
Division of Air Quality New Jersey Department of
Environmental Protection
0018
Harry A. Krug
President
California Air Pollution Control Officers
Association (CAPCOA)
0019
Thomas W. Easterly
Commissioner
Indiana Department of Environmental Management
0020
Steven M. VanSlyke, PE
Supervisory Engineer
Puget Sound Clean Air Agency
0021
G. Vinson Hellwig
Chief
Air Quality Division, Michigan Department of
Environmental Quality
0022
Dona Hippert
Air and Toxics Advocate
Northwest Environmental Defense Center
0023
Suzy Coffee
0024
Lezlie Redden
0025
Roger Lin and Kerri
Bandies
Certified Law Students
Environmental Law and Justice Clinic, Golden Gate
University School of Law
0030
Russell J. Ayers
Chair
Doug Brooke
Vice-Chair
Lane Regional Air Pollution Authority (LRAPA)
0031
R.M. Van Frank
Improving Kids' Environment
0032
Chris Korleski
Counsel
Honda of America Mfg., Inc.
0037
Thomas B. Carter
Director of Environment
Health and Safety Portland Cement Association
0039
Kelly Haragan
Environmental Integrity Project
0046
Norbert Dee, Ph.D.
Director
Environment & Safety National Petrochemical &
Refiners Association (NPRA)
0047
Ted Steichen for Howard J.
Feldman
Director
Regulatory Analysis and Scientific Affairs
American Petroleum Institute
FINAL REPORT
B-l
April 2006
-------
Appendix B. List Of Additional Written Comments Received on
Title V Implementation Experience
(Submitted to EPA Docket No. OAR-2004-0075)
(Continued)
Docket
Item
Number
Commenter
Commenter Affiliation
0048
Robert Hodanbosi and
Ursula Kramer
Co-Chairs
STAPPA/ALAPCO
0049
T. Ted Cromwell
Managing Director
Environment American Chemistry Council
0050
Bernard Paul
Eli Lilly and Company
0051
Donald Schregardus
Deputy Assistant
Office of the Assistant Secretary (Installations and
Environment) Department of the Navy
0052
William H. Lewis
Morgan, Lewis & Bockius LLP on behalf of the
Clean Air Implementation Project (CAIP)
0053
Timothy Hunt
Senior Director
Air Quality Programs American Forest & Paper
Association (AF&PA)
0054
Leslie Sue Ritts
Counsel
The National Environmental Development
Association's Clean Air Project (NEDA/CAP)
0055
Lauren Freeman
Hunton & Williams LLP on behalf of the Utility
Air Regulatory Group (UARG)
0056
Gregory J. Dana
Vice President,
Environmental Affairs
Julie C. Becker
Assistant General Counsel,
Environment
Alliance of Automobile Manufacturers
Valeris J. Ughetta
Director of Stationary
Sources
Swidler Berlin, LLP
Charels H. Knauss
Counsel
0057
John D. Wilson
Executive Director
Galveston-Houston Association for Smog
Prevention (GHASP)
0058
Kelly Haragan
Staff Attorney, Public Citizen
Richard Lowerre
Attorney at Law
0074
Charles H. Knauss and
Shannon S. Broome
Swidler Berlin LLP on behalf of the Air Permitting
Forum
0078
Environmental Integrity
Group et. al
FINAL REPORT
B-2
April 2006
-------
Appendix B. List of Additional Written Comments Received on Title V
Implementation Experience
(Submitted to EPA Docket No. OAR-2004-0075
(Continued)
Docket
Item
Number
Commenter
Commenter Affiliation
0079
Marcie Keever
Our Children's Earth Foundation
Verena Owen
Lake County Conservation Alliance
Karen Pierce
Bayview Hunters Point Community Advocates
0080
M. Gary Helm
Senior Environmental
Coordinator
Conectiv Energy
0081
Rae E. Cronmiller
Environmental Counsel
National Rural Electric Cooperative Association
(NRECA)
0082
Mike Ahern for Robert
Hodanbosi
Chief
Division of Air Pollution Control
Ohio EPA
0083
Katerina Eftimoff
Porter, Wright, Morris & Arthur, LLP on behalf of
the Ohio Chemistry Technology Council, the Ohio
Manufacturers' Association, and the Ohio Chamber
of Commerce
0084
Jennifer K. Thompson
Attorney
Bingham McHale, LLP on behalf of the CASE
Coalition
Danielle M. Bradley
Legal Assistant
Environmental Law Group -
Bingham McHale, LLP
0086
Thomas B. Carter
Director
Environment, Health and Safety, Portland Cement
Association
0087
Doug Campbell
Supervisor
Operating Permits Section, Air Quality Bureau,
Iowa Department of Natural Resources (IDNR)
0089
Peter Hess
Deputy Air Pollution
Control Officer
Bay Area Air Quality Management District
0091
Barry R. Wallerstein
Executive Officer
South Coast Air Quality Management District
(SCAQMD)
0092
Barry R. Wallerstein
Executive Officer
South Coast Air Quality Management District
(SCAQMD)
0093
Michael Lake
Assistant Director
County of San Diego Air Pollution Control District
FINAL REPORT
B-3
April 2006
-------
-------
APPENDIX C
Copy of Slides Used by the Title V Task Force
in Briefing the Clean Air Act Advisory Committee
FINAL REPORT
April 2006
-------
-------
Appendix C. Copy of Slides Used by the Title V Task Force
in Briefing the Clean Air Act Advisory Committee
Title V Task Force Overview
Clean Air Act Advisory
Committee
April 6, 2006
V Task Force
HMB»
FINAL REPORT
C-l
April 2006
-------
Appendix C. Copy of Slides Used by the Title V Task Force
in Briefing the Clean Air Act Advisory Committee
(Continued)
Task Force Charge
* Gather input from all stakeholder groups
* Determine how well the title V program is
performing
* Determine what elements of the program
are working well vs. working poorly
* Report may characterize consensus,
Task Force Members
* Steve Hagle, TX
* Bob Hodanbosi, OH
* Shelly Kaderly, WE
* A d an Sch wa rtz, Bay A re a
* R o b S i I wi n skiandJohn
Higgins, NY
* Don van der Vaart, NC
* Marcie Keever, Our
Children's Earth
* Verena Owen, Lake
Co. Co n se rva tio n A ilia n ce
* Karla Raettig and Kelly
Haragan, Env. Integrity
* Dick Van Frank,
improving} Kid's
Environment
* Shannon Broome, Air
Permitting Forum
* LaurenFreeman, UARG
* D avi d G o I d e n, Ea stm a n
Chemical
* Bernie Paul, Eli Lilly
b Morehouse,
y Wi
Hi
FINAL REPORT
C-2
April 2006
-------
Appendix C. Copy of Slides Used by the Title V Task Force
in Briefing the Clean Air Act Advisory Committee
(Continued)
Task Force Issue Areas
Program Overview Papers* Process Issues
- Costs £. Benefits
Content Issue-
ncorpo ratio
Requinemen
- EPA Review of Proposed
Permits
plicable - Public Access to Documents
Public Hearings:
tice throughout
t of Basis
es to Public
ts
elisions and
Process
* Each Paper contains
- Issue Description
-Supporting Information
* Testimony (oral and written) received
Task Force Discussion - summarizes the give
and take during Task Force deliberations
Recommendat
(if an
FINAL REPORT
C-3
April 2006
-------
Appendix C. Copy of Slides Used by the Title V Task Force
in Briefing the Clean Air Act Advisory Committee
(Continued)
Clarification of Terms
Recommendation
- Any Task Force member could offer a
recommendation.
- The use of the term recommendation is not intended
to reflect consensus by the Task Force.
Majority
- The term majority should not be construed as a value
judgment. Note that a majority could consist of two of
the three stakeholder groups represented on the TF
public participation arid
FINAL REPORT
C-4
April 2006
-------
Appendix C. Copy of Slides Used by the Title V Task Force
in Briefing the Clean Air Act Advisory Committee
(Continued)
Content
Incorporation of Applicable Requirements
Issues
IMIBWIiB
HI
Insignificant Emission Units
Issues
¦hm
TBI
required insignificant emissions units (IEUs) be included in
rrn it vi/ ith a p p I i c a b I e r"1" 1H 1
ane identified, permittee must provide annual complian
n for them.
$ed concern re focus on lEUs detracting from sianificant
Dosing high c
umulative emissions from multi
dation Tq
Iieves adrninistr
FINAL REPORT
C-5
April 2006
-------
Appendix C. Copy of Slides Used by the Title V Task Force
in Briefing the Clean Air Act Advisory Committee
(Continued)
Monitoring
Co rite nt
dd monitoring to Title V permits?
mm
Content
Title I/Title ¥ Interface
* Issues
* Recommendation Topics
- Expand use of White Paper No. I's parallel processing.
- Additional options using current rules to eliminate the
H
.:°«t
FINAL REPORT
C-6
April 2006
-------
Appendix C. Copy of Slides Used by the Title V Task Force
in Briefing the Clean Air Act Advisory Committee
(Continued)
Co rite nt
New Substantive Requirements
Issues
- Sonne states imposing monitoring parameters as
en fo roe ab I e i i rn its. T esti m o n y cite d i n sta n ce s w he re th i s
led to more stringent limits than applicable rules.
- CAM interface.
Recommendation Topics
- General agreement Title V does not authorize imposition
of any new or more restrictive emission limitations.
- Majority supported recommendations relying on CAM rule
& ensuring parameters (without agreeing that they are
authorized) directly correlated with applicable limits. No
' Tuble violatio
BBBBH
\
——————————I
Content
Permit Definitiveness
issue
M
i
enerally s
terplay b
hield.
I
w
I
ommen
o consen
and relationship between the permit, th
and the compliance certification.
Language in 70.6 regarding "at a minim
requirements in compliance certmca
Potential amendments to 70.6 in this
«•!(
FINAL REPORT
C-7
April 2006
-------
Appendix C. Copy of Slides Used by the Title V Task Force
in Briefing the Clean Air Act Advisory Committee
(Continued)
Compliance Certifications Con,er"
f Issues
- What should the format of compliance certifications be?
- Wide ranging discussion on the pros and cons of the various forms:
¦ Lon g form ca n o bsc ure c ompl ia nc e i ssu es fo r the regu lators, c ornpa ny
management and the public.
¦ So me v ie w I ong form as man age me nt t ool s.
¦ Core recognition that identifying deviations isthe key.
- Recommendation Topics
- Majority'of TF recommends short form.
- Remainder of TF split among three options from a modified short
form to the full long form.
- Consensus on several "nagging" issues re certification forms:
¦ sl'iould provide spacefor permittee to clarify or explain its certification.
¦ sl^tould not require certification for requirements thiat don't imoose an obliqation on
FINAL REPORT
C-8
April 2006
-------
Appendix C. Copy of Slides Used by the Title V Task Force
in Briefing the Clean Air Act Advisory Committee
(Continued)
Content
Compliance Schedules
ark si «18 Hi jja»Kflli I ¦¦Tat IfSl ifgnfel ilf 'k^Mki if
Issues
- What constitutes a "determination of noncompliance"
sufficient to require inclusion of a compliance
schedule in a permit?
- What are permitting authorities' obligations to
investigate and resolve allegations of noncompliance
before they issue Title V permits?
- Recommendation Topics
- The topic of compliance schedules generated
extensive discussion, but the TF concluded that the
topic raised legal issues that could not be readily
mm
L———^___
I
EPA Review of Proposed Permits
Issues
- Concurrent v. sequential EPA and public review.
Process
¦¦¦¦¦UK
"" rrn it change s d uri n g rev i e w pro cess.
orming stakeholders of schedule and version.
EPA permit review policy/guidance (e.g.,quantity, quality).
mmendation Topics
M aj o ri t y re c o rn m e n d e d con cu rre n t re v i e w applies a b s e n t
a significant comment that is germane to Title V permit
proceeding submitted by someone other than the
Permittee. If such a comment is submitted, review would
become sequential.
¦¦¦¦¦¦I
¦H
FINAL REPORT
C-9
April 2006
-------
Appendix C. Copy of Slides Used by the Title V Task Force
in Briefing the Clean Air Act Advisory Committee
(Continued)
Pro cess
Public Access to Documents
Issues
- Difficulty or ease the public has obtaining documei
during Title V permit review and comment process
mendation Topics
ral agreement that permitting authorities shoi
tairi ari accessible and complete file ofthd
ant documents and make certain of these;
ments, including the permit and statement of
available online.
reement regarding which documents are
i .4- 4* y-. s-> ~T" 14*1 j--. \ i h~-. y-. ~-kv-i 14-
^m
^m
jBjjgpgj
Public Hearings
Process
Issues
- The proces
hearings on
- Hearings pi
member of
developme
Recommendation Topics
- U s e o f i n form ati on a I s es s io n s.
- State discretion/standards for deciding when to hold
public hearings and the publication of such standards.
FINAL REPORT
C-IO
April 2006
-------
Appendix C. Copy of Slides Used by the Title V Task Force
in Briefing the Clean Air Act Advisory Committee
(Continued)
Process
Statement of Basis
* Issues
- Production, content, and use of statements of
basis.
~ Recommendation Topics
- Consensus on:
• most items that should be included in a statement of
basis for initial permits, renewals, and revisions; and
* consequences for permits issued without a
statement of basis and state programs that routinely
do not issue a document satisfying the intent of the
c,titHiTiHnt i~'f h^is with their oermits.
FINAL REPORT
C-l I
April 2006
-------
Appendix C. Copy of Slides Used by the Title V Task Force
in Briefing the Clean Air Act Advisory Committee
(Continued)
Response to Public Comments
Process
Issues
- Concerns some permitting authorities are not providin
a written response (or any response at all) to commer
on draft permits.
- Difficulty in determining what changes have been mac
to a permit following the public comment period.
Recommendation Topics
- Majority agreement that permitting authorities should:
¦ prepare written response to comments responding to each
comment received and explaining changes between draft'
¦¦¦¦¦¦
^m
, — , , - -
Process
Permit Revisions/Operational Flexibility
issues
liiiMBmi
BBS
nits for MACT; (2) lack of timely revision
nor mod and off-permit
linistrative amendment category; (4)
path applies, (5) merged
FINAL REPORT
C-12
April 2006
-------
Appendix C. Copy of Slides Used by the Title V Task Force
in Briefing the Clean Air Act Advisory Committee
(Continued)
Appeals and Petitions
Process
Issues
- Some states very slow in processing sources' permit
appeals.
EPA also slow in responding to petitions for objection to
permits.
Process not at all transparent (i.e.
with petitioner, permittee, o
Recommendation Topi
- Seek to:
* expedite appeal resolution and c
requests;
• improve transparency of the petit
¦¦¦¦¦¦¦¦¦II
FINAL REPORT
C-13
April 2006
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