QUESTIONS FOR MS. MARY NICHOLS FROM
SENATOR LAUCH FAIRCLOTH
QUESTION:
1. You indicated during the hearing that the level of
public participation required for permit changes will be
determined by the States and depend upon the extent of those
changes. What will EPA's role in this determination be? Will
this scheme be used for both major and minor sources?
EPA RESPONSE:
Under the Environmental Protection Agency's (EPA) August 31,
1995 supplemental proposal in the Federal Register, the level of
public participation for permit changes would be determined by
States for the vast majority of changes. Public and EPA review
would be required for the more environmentally significant
changes, such as major new sources or major modifications. For
the remainder (i.e., those that are less environmentally
significant) States would be allowed to match the level of public
review to the environmental consequence of the change. States
could exempt the smallest changes from any public review.
EPA's role in this determination would be minimal. In the
supplemental proposal, the EPA gives general criteria for States
to use in the matching process. States are also directed to
apply the standard from the D.C. Circuit case, Alabama Power Co.
v. Costle, 636 F.2d 323, in deciding which changes are de minimis
and therefore exempt from public and EPA review. Under this
approach any State that chooses to forego public review for some
changes and can support its decision with a factual record would
not have its decision second-guessed by EPA. The foregoing would
apply to changes made at any source required to get a title V
permit, whether major or minor.
QUESTION:
2. During the hearing, you indicated that EPA did not have
an economic impact analysis prepared for the Title V program,
including parts 70 and 71. What is your best estimate for the
Title V program? Please include costs to the taxpayers for Federal and State programs, as well as costs to the regulated
community, including costs for additional staff and consultants.
EPA RESPONSE:
Ms. Nichols testified that we are in the process of going
back and looking at the reduced costs associated with the
supplemental proposal which was published on August 31, 1995.
However, EPA did prepare a regulatory impact analysis (RIA) when
it promulgated the part 70 regulations in July 1992. The RIA
contains cost estimates for sources, State and local permitting
agencies, and EPA for the first 5 years of the program. Total
costs are estimated to be an average of $526 million for each of
the first 5 years. The cost to EPA would be $14 million (which
would be funded through EPA appropriations). State and local
agencies would incur $160 million in costs, but this would be
covered entirely by permit fees from sources subject to the
program; there would be no cost to taxpayers. The costs to
sources would be $512 million, which includes permit fees to
cover the $160 million State and local costs.
For any Federal permit program (part 71) that would have to
be administered by EPA, the average annual costs are estimated to
be $18.6 million per year total. This estimate is from the draft
RIA prepared in conjunction with the part 71 proposed regulations
and assumes EPA will administer fully staffed and operational
permit programs in 10 States. The annual costs to EPA would be
$11.4 million and the annual costs to sources would be $7.2
million. The $11.4 million costs to EPA would be funded through
EPA appropriations (Title V requires permit fees equal to the
cost of a Federal program to be collected from sources and
forwarded to the Federal Treasury). The RIA assumes such
programs would operate for 2 years. In fact, we believe the
actual costs will be substantially lower because we expect most
programs to operate for a matter of months at a cost of about
$3.0 million per year.
QUESTION:
3. Based on the above costs, and your own estimates of
likely emissions reductions attributed to implementation of title
V, what do you think is the cost-per-ton reduction from title V?
EPA RESPONSE:
Although we can estimate costs of the program, we do not
have specific estimates of the emissions reductions attributable
to title V. However, based on past compliance data, we believe
them to be significant. Many States have reported that companies
are in fact achieving major reductions in emissions in an effort
to comply with substantive Clean Air Act requirements discovered
in the course of preparing their permit applications and
compliance certifications. We will be tracking this closely over
the course of implementing the program.
QUESTION:
4. You have stated that the Title V program was not
intended by Congress to be the source of new substantive
requirements. Why then does EPA condition increase flexibility
on an emissions cap?
EPA RESPONSE:
An emissions cap is hardly a new substantive requirement.
Caps have been used for many years as a way of avoiding more
stringent requirements, such as certain preconstruction
requirements, that would apply if the cap were not in place.
They are still used this way in flexible permits, including the
Intel permit.
The EPA has also promoted an approach of preapproving
certain activities, which before title V had to receive approval
individually from the State. When used in combination with a
cap, this approach can provide great flexibility, since it can
avoid entirely the need for any kind of permit revision. Flexible
permits of this type have been highly recommended by the
electronics industry. They believe this is a very effective way
to provide the flexibility to make changes that increase
emissions at some units without requiring a revision to the
permit. We agree and we have proposed to require States to
accept the cap approach if requested by a source. We also have
encouraged States to provide additional flexibility by
preapproving changes under their State preconstruction permit
programs.
QUESTION:
5. Much has been made of the White Paper, yet the simple
fact remains that it is merely guidance, which can be changed at
a whim. Would you oppose codifying in statute the concepts and
approaches laid out in the White Paper?
EPA RESPONSE:
EPA does not issue guidance on a whim but in fact
developed the White Paper after weeks of consultation with
industry and other stakeholders.
We do not believe it is necessary or desirable to codify the
White Paper in statute. The main purpose of the White Paper is
to clear up certain misconceptions regarding the requirements of
the permits rule. It does so simply by explaining what the rule
minimally requires. Therefore, a change from the positions set
out in the White Paper would only result from a change to the
rule itself, which would require giving the public an opportunity
to comment. Moreover, issuing it as guidance has had an
immediate effect; it has been widely read and is being widely
implemented. We believe the sort of detailed implementation
guidance provided in the White Paper is best handled through
Agency rulemaking or policy guidance, rather than through a
change in the statute.
EPA also intends to issue additional white papers to address
other implementation concerns such as how to streamline the
permit. As with the original White Paper, EPA will work with
industry, States, and environmentalists to understand their
concerns and respond to them in the guidance. In these cases, we
would again encourage States to expeditiously implement the new
guidance.
QUESTION:
6. EPA has stated that there are concerns in the regulated
community that EPA will issue guidance in the future which would
establish new requirements concerning the contents of a completed
application. Absent a statutory fix, how does EPA plan to
foreclose these concerns?
EPA RESPONSE:
The White Paper merely noted this as a concern that had been
expressed by some States and some in the regulated community.
Like a number of other concerns addressed by the White Paper, EPA
believes this was a misconception. Based on the response from
the regulated community, EPA's White Paper has clarified many
issues related to the application and has greatly diminished
concerns about additional guidance. We will use this same
approach to address any new issues concerning applications that
are raised from the regulated community. As with the original
White Paper, any new guidance will be developed with assistance
from our industry, State and environmentalist stakeholders. For
the reasons given in our response to the previous question, a
statutory fix is unnecessary and could delay relief to the
regulated community.
QUESTION:
7. What is the legal foundation for EPA allowing greater
optional flexibility only in those cases where a plant has agreed
to an emissions cap? Could this be viewed as an attempt by EPA
to bootstrap an emissions limitation on a record keeping permit?
EPA RESPONSE:
Section 502(b)(10) of the Act requires State permit programs
to include provisions allowing changes at a permitted facility's
operation can to be made without a permit revision if the change
is not a title I modification and does not exceed the emissions
allowable under the permit whether expressed as a rate or in
terms of total emissions. EPA interprets this section to compel
States to issue permits containing emission caps if requested by
an applicant. Thus, if a facility's permit contains an emissions
cap set at the threshold for title I modifications (e.g., 40 tons
per year for VOC's), any change that does not exceed the cap
could be made without a title V permit revision. The change
would of course need to comply with other terms of the permit,
such as any rate-based emission limits on a unit. As we said in
response to question #4, the electronics industry in particular
has asked for permits with emission caps.
The use of emission caps to provide industry greater
flexibility and to implement an express provision of the Act
could hardly qualify as "bootstrapping an emission limitation on
a recordkeeping permit." Nor would a permit with only
recordkeeping provisions be an effective means of implementing a
flexible permit. An emissions cap is needed (and desired by
industry) to ensure that changes do not exceed certain thresholds
and become subject to State preconstruction requirements as major
modifications, or major sources subject to section 112(g)
requirements, for example.
QUESTION:
8. I am still concerned that the main defect of the
compliance certification issue remains -- it appears to be an
extended fishing license for the enforcement side of EPA. What
assurances can you give me that the compliance certification
won t be used in that manner?
EPA RESPONSE:
The EPA does not expect to develop many enforcement actions
or to trigger large-scale investigations as a result of
compliance certifications required under the title V programs.
For example, EPA enforcement action would be limited to cases
where an owner or operator willfully operated without a permit in
violation of known requirements, or falsified a compliance
certification, or such similar acts. To date, EPA has not placed
a heavy emphasis on enforcement because many sources, as a result
of the operating permits program provisions, are working with
permitting authorities to identify, clarify, and resolve areas of
potential misconception concerning applicable requirements.
Furthermore, since local or State permitting authorities are
responsible for implementing and enforcing the operating permits
program, EPA enforcement action would only occur in those limited
instances in which local or State permitting authorities fail to
take timely and appropriate corrective action. While sources
remain responsible for ensuring compliance with applicable
requirements, and thus subject to enforcement action for failing
to maintain compliance, EPA prefers to achieve compliance through
assisting sources.
QUESTION:
9. The White Paper did not address the "once in/always in"
problem. How do you intend to ensure that sources will not
become inappropriately categorized?
EPA RESPONSE:
EPA has not and does not intend to adopt a "once in/always
in" policy for title V. If, for example, a company reduces its
potential to emit (PTE) to below major source thresholds after
being subject to title V, the Agency believes such a plant should
be allowed out of the title V program. The Agency intends to
clarify this position in future white papers or policy
statements.
QUESTION:
10. Could you discuss the veto issue in more detail? It is
my understanding that you plan to use the veto only in cases
where citizens have petitioned. How have such arrangements
worked in the past?
EPA RESPONSE:
For the first 5 years, we intend to use our veto for less
environmentally significant permit revisions only in cases where
a citizen has petitioned us. (Less environmentally significant
revisions are those where EPA allows the State to determine the
level of public review based on the environmental significance of
the change.) If a citizen's petition brings to EPA s attention a
permit revision that allegedly fails to fully or accurately
incorporate all applicable requirements, or for which required
opportunities for public review were not provided, the Agency
would review the revision for possible objection. Where its
review revealed an environmentally significant error in the
permit revision, EPA would object.
During the 5-year period, EPA will audit how well State
programs are working, and at the end of the period could decide
through rulemaking whether to continue its waiver of the veto.
EPA could still review more environmentally significant permit
revisions, such as major emission increases, without waiting for
a citizen petition.
QUESTION:
11. EPA's response to Question III.E (small business
leniency) is limited. It explains the statutory basis for
leniency to small businesses, but does not answer why such an
approach cannot be extended to other than major sources.
EPA RESPONSE:
As we explained in our response to Question III.E., a
recently-issued policy extends EPA's new approach to small
business compliance and enforcement to major, as well as minor,
Act sources. The policy applies to all sources -- major and
minor -- that employ 100 or fewer persons on a company-wide
basis.
QUESTION:
12. You have indicated that 45 States had at least some
aspect of an operating permit program prior to passage of the
Clean Air Act Amendments of 1990. Why did not EPA simply focus
on bringing those programs to full maturity instead of starting
essentially ab initio?
EPA RESPONSE:
Although 45 States had some kind of permit program, most
were not close to meeting the minimum requirements of title V.
For example, many States issued permits to new sources only, not
existing ones. Also, many State permits did not contain all
requirements under the Act, or they lacked adequate compliance
certification requirements. Many parts of existing State
programs were useful, however, and States have used them as
starting points in developing their title V programs.
QUESTION:
13. You have indicated that you expect compliance to
increase from 80 to 90 percent because of title V. On what do you
base this belief? If you believe that rule effectiveness will
increase [to] 90 percent as a result of title V, will you give
States 90 percent rule effectiveness in 15 percent and attainment
plans? Is there some reason why you believe that a State-
drive[n] program won't garner the same sort of benefits?
EPA RESPONSE:
We used the increase from 80 to 90 percent to illustrate
that a 10 percent improvement in rule effectiveness would cut
emissions in half. However, as we indicated in our response to
question 3, we do not have the information needed to quantify how
much of an improvement in rule effectiveness will be achieved by
title V. As we stated in our testimony on August 1, we have
performed studies indicating that some State rules were achieving
no more than and in some cases less than 80 percent of the
expected reductions in emissions; we believe this shortfall was
due to non-compliance, in part because the companies were not
aware of requirements to which they were subject. The operating
permits program will substantially improve compliance with
existing requirements, which in turn will result in improved air
quality.
Our policy for 15 percent and attainment plans is to allow
States to take credit for improvements in rule effectiveness over
80 percent based on State or local studies that account for local
factors. If States provide sufficient information for granting
the increase in rule effectiveness, we would certainly give
States credit for that increased rule effectiveness.
As to whether State-driven programs would not garner the
same increases in rule effectiveness as a title V program, our
response to the previous question points out the shortcomings of
many existing State permit programs relative to title V.
QUESTION:
14. You have asserted that there is little question that
the Title V program will improve compliance. If you know that
companies are not already in compliance, why aren't you bringing
enforcement actions against them?
EPA RESPONSE:
As mentioned in our response to Question 8, EPA initiates
enforcement action in those instances when we find that sources
are out of compliance and that local or State permitting
authorities fail to take timely and appropriate corrective
action. EPA will continue its enforcement program, but with the
advent of title V, EPA expects to gain greatly improved
compliance as sources begin to fulfill their obligations under
the operating permits program.
EPA believes that sources will be more likely to comply with
their obligations when, as a result of the operating permit
application process, these obligations are placed in written,
legal documents and compliance with these requirements is
certified initially and then on an annual basis. Absent such
documents or duties to certify compliance, EPA finds that many
sources often yield to competitive pressure at the expense of air
quality.
In the short life of the operating permits program,
experiences shared by permitting authorities confirm EPA s
increased compliance expectations. While preparing the initial
permit application, sources are uncovering applicable
requirements of which they are previously unaware and are working
with their permitting authorities to clarify and resolve
misconceptions about applicable requirements. Similarly, while
preparing initial permit applications, sources are discovering
failures in meeting applicable regulations and taking immediate
steps to address these problems, resulting in improved
compliance.
QUESTION:
15. EPA recently indicated that it may allow States more
time to develop shelters for their synthetic minors. While we
applaud this common sense approach, we question why it cannot be
broadened. If EPA is willing to allow States to shelter
synthetic minors, will you endorse statutory language to close,
once and for all, the question of potential to emit? Also, if
EPA is willing to let States permit synthetic minors, why not
take the extra step and simply turn the title V program over to
the States?
EPA RESPONSE:
EPA's policy of January 25, 1995 provided a summary of the
approaches States can use to create "shelters" for low-emitting
sources whose potential to emit (PTE) exceeds major source
levels. The most common approaches include (1) upgrading State
operating permits in a way that creates effective and enforceable
restrictions, and (2) creating State rules or general permits
that minimize the degree to which case-by-case permitting is
needed.
In addition, this January 25 policy announced a 2-year
transition period (that is, until January of 1997) to ensure that
States have time to implement these approaches. For example,
during this 2-year period any source emitting less than
50 percent of the major source threshold, and keeping adequate
records, would not be considered a major source. The EPA
believes that by the end of the 2-year transition period,
approaches will be readily available to sources seeking to limit
their PTE.
We do not believe that a statutory fix is necessary or
advisable on the subject of PTE. Our experience is that States
are working with their sources to devise common-sense approaches
that work best in their jurisdiction. More importantly, States
are implementing limits on PTE as rapidly as they can, and as a
result, we estimate several thousand companies nationwide are no
longer major sources and therefore not subject to title V.
The EPA plans to take actions that should be complementary
to these State efforts. First, the EPA is considering rulemaking
that would permanently exempt from the system sources that emit
low levels of actual emissions. Second, the EPA will clarify the
types of common-sense inherent limitations that can be considered
in calculating a source's potential to emit so as to avoid the
need to create a synthetic "shelter." For example, for emergency
electrical generators that operate only during power outages, we
recently issued guidance that allow operators to assume the
generator operates 500 hours per year or less rather than 8760
hours per year.
We are "turning the title V programs over" to the States as
quickly as possible, by approving State and local title V
programs. As of September 1, 1995, we have approved 17 State and
well over half of the local programs. Over the next 6 to
12 months, we expect all but a very few State and local agencies
to be running their programs.
QUESTION:
16. Why should not States be allowed five years to issue
the first round of title V permits instead of the 3 years
currently allowed?
EPA RESPONSE:
EPA already allows up to 5 years to complete issuance of
permits under the current rule for States that demonstrate
compelling reasons why they cannot issue all permits in the first
3 years. We expect about a dozen programs (including the two
with the largest number of sources - Texas and Los Angeles) to be
approved under this approach.
QUESTION:
17. Why shouldn't section 112(r) (emergency response) and
title VI (stratospheric ozone protection) be removed from
consideration, both as a means of determining applicability and
as a source of applicable requirements?
EPA RESPONSE:
EPA recognizes that some provisions of the emergency
response and stratospheric ozone protection regulations are
inappropriate for determining applicability with, and as a source
of applicable requirements for, the operating permits program.
However, EPA believes that those regulation provisions which are
appropriate for inclusion in the operating permits program should
remain under consideration of the operating permits program. We
have taken steps to segregate individual portions of the
regulations and to remove the inappropriate regulations from the
scope of the operating permits program. EPA has proposed
redefining the term "regulated air pollutant" so that the
contribution from emissions of section 112(r) pollutants are not
included in determining applicability, unless these pollutants
are regulated under another provision of the Act. EPA guidance
contained in the White Paper reduces the applicable requirements
of section 112(r) from requiring detailed quantities or estimates
of emissions of specific pollutants to indicating only whether or
not a source is required to submit and implement a risk
management plan.
With respect to removing unnecessary title VI requirements,
EPA proposed redefining the term "applicable requirement" to
include only those sections under title VI that apply to capture
and recycling of ozone-depleting substances during service and
disposal of refrigerator equipment and air conditioners. Other
requirements, such as those contained in the phase out of
production and consumption of ozone-depleting substances;
nonessential products containing chlorofluorocarbons; labeling;
and safe alternative sections, have little relevance to
individual sources and under EPA s supplemental proposal would
be removed from the scope of the operating permits program.
QUESTION:
18. There has been a great deal of concern raised over the
agency's decision that an employer must calculate its Potential
to Emit (PTE) and that only federally enforceable controls can be
considered. This presumes that State or locally imposed control
measures operating at a facility are not operating. Does the
agency in fact assume that only federally enforceable emission
control reduce air emissions -- we would appreciate a yes or no
answer. If the answer is no, then why not allow PTE to be
calculated as if the existing control measures are in fact doing
what they have been installed to do? If you believe that they
are not adequately controlling emissions, please provide very
recent data to support your view. Data 10 or 15 years old is
irrelevant because of the tremendous changes in controls and
technologies.
EPA RESPONSE:
As you may be aware, the D.C. Circuit issued an opinion on
July 21, 1995 that remands to the Agency the issue of whether
limits on potential to emit must be federally enforceable for
section 112 requirements. A separate case is pending to decided
whether limits on potential to emit must be federally enforceable
for title I requirements. Until such time as final court
decisions are made in both cases, the Agency believes it is
premature to comment on what its final position might be on this
issue.
QUESTION:
19. At the hearing you responded that the average cost of a
title V permit application for a major facility was $50,000. As
you are aware, Texas Instruments Corporation stated that its
costs were $250,000. Please provide supporting documentation for
your statement. Also, please provide this Subcommittee with a
synopsis of any comments on proposed rules, letters, economic
analysis, critiques of your regulatory impact analysis that
support or challenge your numbers.
EPA RESPONSE:
In accordance with the Paperwork Reduction Act, EPA prepared
an Information Collection Request (ICR) analysis for the part 70
regulations. The ICR was approved by the Office of Management
and Budget on July 28, 1992. A copy of the ICR is attached.
Table 6 of the ICR provides estimated costs for sources for years
4 through 8 after promulgation of part 70; this includes the
period when permit applications would be due from sources. The
information indicates that large sources (with emissions greater
than 100 tons per year (tpy)) would expend a total of 1194 hours
to apply for a permit. This includes rule interpretation,
information collection, and permit application preparation. At
$50 per hour, the hours translate into $59,700. For sources
below 100 tpy, the estimate is 660 hours of effort for a cost of
$33,000.
All the sources in table 6 of the ICR are assumed to be
major, i.e., sources below 100 tpy can be major for hazardous air
pollutants or major for ozone or particulate matter in certain
nonattainment areas. Taking into account the number of "large"
and "small" sources in table 6 and the costs for each, the
average burden for all sources would be $44,250 per permit
application. These data in the ICR supports an estimate of
approximately $50,000 in 1995 dollars. A number of sources will
be very large and complicated requiring a more detailed analysis
and a more extensive permit application, and consequently entail
higher costs such as the Texas Instruments example. The majority
of sources, however, will be more routine and their costs will be
considerably below the $50,000 estimate.
The EPA has over the last year received general information
from various sources indicating that permit application costs are
excessively high and much more than estimated by EPA in the ICR.
In investigating these assertions, EPA found that applicants were
frequently going far beyond the requirements of part 70 for the
scope and comprehensiveness of permit applications. As you are
aware, the Agency's response to these concerns was the White
Paper clarifying the requirements for permit applications.
Implementation of the White Paper should bring actual costs more
in line with estimated costs.
As you requested, attached are supporting material and
analyses prepared as a result of comments on the RIA for part 70.
These include:
o A survey of State and local agencies which provided
background information for the RIA and ICR.
o Two pages from the technical support document for
part 70 which respond to public comment on the burden
analysis.
o A summary of, and EPA's response to, comments from the
public hearing on the RIA.
o A summary of, and EPA's response to, comments of the
Small Business Administration.
QUESTIONS FOR SENATOR FAIRCLOTH
FROM
SENATOR CRAIG THOMAS
QUESTION:
1. It is my understanding that the operating permit program
currently applies to "major" sources with emissions that exceed
certain threshold levels. In determining whether a mine is a
major source, does EPA require consideration of fugitive
emissions from the mine?
EPA RESPONSE:
Title V defines "major source" as including any stationary
source or group of stationary sources that are adjacent to one
another and commonly controlled and that is either a "major
source" under section 112 of the Act or a "major stationary
source" as defined in section 302(j) or part D of Title I of the
Act (see section 501(2)). With regard to surface mines, EPA does
not require the consideration of fugitive emissions from a mine
in determining whether the mine by itself is major under title V,
unless the mine is a major source of hazardous air pollutants
(HAPs) under section 112. As indicated in the response to
question 6, fugitive emissions of HAPs are to be counted in
determining whether a source is major under section 112.
QUESTION:
2. Mining operations often include mineral processing
plants that crush and grind ore to prepare it for the next step
in the extraction process. Mineral processing plants are subject
to new source performance standards that were adopted after EPA
initially adopted its list of fugitive emissions sources in 1980.
In determining whether a mineral processing plant is a major
source, does EPA require consideration of fugitive emissions from
the plant?
EPA RESPONSE:
As noted above, Title V defines "major source" as including
major stationary source as defined in section 302(j) or part D of
Title I of the Act. Section 302(j) provides that fugitive
emissions from a source may only be counted in determining
whether the source exceeds the major source threshold if EPA has
determined by rule that fugitive emissions from that category of
sources should be so counted. Part D follows section 302(j) in
this regard.
EPA has thus far determined by rule that the fugitive
emissions of all sources subject to NSPS promulgated prior to
August 7, 1980 should be counted in making major source
determinations. EPA has not yet conducted such a rulemaking for
NSPS promulgated on or after August 7, 1980, including the NSPS
for metallic mineral processing facilities.
The Title V regulations as originally promulgated, however,
require that the fugitive emissions of sources subject to New
Source Performance Standards (NSPS) be counted in determining
whether a source is major under section 302(j) and thus under
Title V, regardless of when the NSPS was promulgated. EPA has
since acknowledged in guidance that it did not conduct the
requisite rulemaking under section 302(j) to so expand the scope
of source categories for which fugitives must be counted.
As a result, EPA has stated in guidance that State permit
programs which do not require fugitive emissions to be counted at
sources subject to NSPS adopted after August 7, 1980 will still
be approved. Furthermore, EPA is revising part 70 and will
promulgate part 71 (the federal operating permit program) to
require that in determining whether a source is major under
section 302(j) or part D and thus under Title V, fugitive
emissions from a source category subject to NSPS be counted only
if a 302(j) rulemaking has been completed for that source
category.
QUESTION:
3. EPA has adopted so-called "co-location rules" that
operate to include within a permit all facilities that are
located on contiguous property and under common ownership or
control. It is my understanding that, at present, EPA does not
require States to use the co-location rules to require permits
for mining or mineral processing facilities that are not major
sources if fugitive emissions are not considered. Is that
correct?
QUESTION:
4. In determining whether a facility is a major source, EPA
sometimes counts emissions from so-called "support facilities"
that perform activities ancillary to the primary activity at the
site. I understand that, at present, EPA does not require states
to use the support facility rule to require permits for mining or
mineral processing facilities that are not major sources if
fugitive emissions are not considered? Is that correct?
EPA RESPONSE TO QUESTIONS #3 AND #4:
As noted above, the Title V definition of major source
covers "any stationary source or group of stationary sources"
that meets specified major source or major stationary source
definitions (see section 501(2), emphasis added). The Title V
regulations implement the above-quoted language by means of the
"collocation" provisions of the regulations' major source
definition.
In promulgating the Title V regulations, the Agency
interpreted the collocation provisions as requiring that
adjacent, commonly controlled ("collocated") sources be combined
under certain circumstances for purposes of making major source
determinations under Title V. In general, collocated sources are
combined for purposes of making major source determinations when
they belong to the same industrial grouping as defined by the
two-digit Standard Industrial Code (SIC) issued by the Office and
Management and Budget. However, there is an exception to this
rule for support facilities. Under the support facility test,
collocated sources with different two-digit SIC codes will
nevertheless be combined where one of the collocated sources is a
support facility of the other.
Under the Agency's interpretation, the Title V collocation
provisions applied to sources regardless of whether they had been
listed by rule under section 302(j) of the Act. Further, EPA
interpreted the Title V collocation rules as requiring that
fugitive emissions from unlisted source categories be counted
under some circumstances in making Title V major source
determinations. Mines and metallic mineral processing facilities
have not been listed by rule under section 302(j).
The Agency has since issued guidance to the States
announcing that it no longer considers binding its interpretation
of the collocation rules as they apply to unlisted sources in
title V major source determinations. It announced that the
Agency intended to conduct further rulemaking on the proper
interpretation of the collocation rules with regard to unlisted
sources, and that until the rulemaking was completed, States
would have discretion in applying the collocation rules to
unlisted sources in Title V major source determinations.
QUESTION:
5. I have been told that EPA cannot consider mining
fugitive emissions in the major source determination unless the
agency determines by rule that the benefits of the resulting
regulation would outweigh the costs. Do you agree? Do you
intend to conduct rulemaking to examine these issues? Would such
a rulemaking discuss problems with accurate measurement of
fugitive emissions?
EPA RESPONSE:
The Agency does consider the benefits and costs associated
with listing a source category under a section 302(j) rulemaking.
EPA has already undertaken a section 302(j) rulemaking regarding
surface coal mines. In that rulemaking, completed in 1989, EPA
decided not to list surface coal mines. The benefits and costs
of regulation were considered in that rulemaking.
Regarding measurement of fugitive emissions, EPA regulations
provide that only those fugitive emissions that are reasonably
quantifiable need be counted.
QUESTION:
6. A recent judicial decision appears to hold that EPA may
consider fugitive emission of substances listed as hazardous
without the rulemaking just described. Does EPA view this
decision as limited to listed hazardous substances only? Do you
believe that current techniques for measuring fugitive emissions
are sufficiently accurate to constitute a reasonable basis for
regulation? What studies or other available data would you cite
to support your views?
EPA RESPONSE:
In National Mining Assoc. v. EPA (July 21, 1995), the DC
Circuit Court of Appeals upheld EPA's decision to require, for
purposes of a section 112 major source determination, inclusion
of fugitive emissions in a source's aggregate emissions without a
section 302(j) rulemaking.
The court's decision was limited to the question of whether
fugitives should be counted for purposes of section 112 major
source determinations without rulemaking. Consequently, EPA
views this decision as limited to listed hazardous substances,
consistent with the requirement in section 112 to count only
these substances when determining whether a source has the
potential to emit major amounts of HAPs (i.e., 10 tons/year of a
single pollutant or 25 tpy of a combination of pollutants).
The Agency has applied the results from a variety of testing
methods in the evaluation of fugitive emissions from mining and
other rock and ore handling operations. Many improvements to the
reproducibility and repeatability of such methods have occurred
over the past few years. These are documented in "A Review of
Methods for Measuring Fugitive PM-10 Emission Rates" (EPA/454-R-
93-037). The accuracy and precision estimates for these methods
are provided in this and other documents and are considered in
evaluating data the Agency collects. The Agency intends to
continue evaluating and improving the performance of these
methods. Nevertheless, we believe that these methods are of
sufficient accuracy for regulatory development purposes.
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