~ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Ouaiity Planning and Standards
Research Triangle Park, North Carolina 27711
OCT 8 1993
Mr. Charles Fryxell
President, California Air Pollution Control Officers' Association
Mojave Desert Air Quality Management District
15428 Civic Drive, Suite 200
Victorville, California 92392
Dear Mr. Fryxell:
The purpose of this letter is to respond to the issues raised by
the California Air Pollution Control Officers' Association (CAPCOA) and
others concerning the requirements for implementing an operating
permits program under the Clean Air Act. These issues were discussed
in a September 22, 1993, meeting between EPA Deputy Administrator
Robert Sussman and Congressmen Dooley, Thomas, Lehman and Condit and
several of their constituents. The issues include: 1) fugitive
emissions; 2) permit content and conflicting requirements; 3) limiting
potential to emit; 4) permit fees; and 5) the meaning of equivalence
under title V of the Clean Air Act.
Fugitive Einissions
CAPCOA has expressed its desire to avoid an approach that may draw
farming operations into the permit program as a result of fugitive
PM10emissions. EPA has reached a decision on the treatment of fugitive
emissions that is consistent with CAPCOA's recommendation. In brief,
fugitive emissions of criteria pollutants need not be counted for
applicability purposes for all sources in nonattainment areas. Rather,
fugitive emissions of criteria pollutants must be counted in
determining applicability only for those source categories set forth in
paragraph 2 of the definition of "major source" in EPA's title V
regulations at 40 CFR part 70.2. In addition, fugitive emissions of
hazardous air pollutants must be counted for all sources in determining
whether the source is major under section 112 of the Act.
Permit content and conflicting requirements
CAPCOA questions what applicable requirements a permit must
contain when a source is subject to more than one standard for the same
pollutant at the same emissions unit. CAPCOA proposes
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that the most stringent applicable requirements be included in the
permit and other requirements be referenced.
I have enclosed the answer to that question, developed by EPA s
operating permits task force, which uses the CAPCOA approach under
certain circumstances. In general, permits must contain all emission
limits and compliance measures that are set forth in all applicable
requirements. However, for cases in which different applicable
requirements are expressed in the same form and units of measure,
differing only , for example, in the number of the emissions limit,
only the most stringent provision must be included in the permit.
Thus, in an example cited in your briefing document from Mary Nichols
dated July 28, 1993, the emission limit contained in the new source
performance standard (NSPS) could be dropped if and only if the limit
resulting from the local agency s determination of best available
control technology were expressed in the same units as the NSPS limit.
If the NSPS limit were dropped, the permit would still need to
reference the NSPS, as you suggest, in order to make the applicability
determination clear. We believe this result is a fair compromise
between the need to simplify and clarify permits and the need to avoid
complex determinations of equivalency during EPA s 45-day review
period. With respect to compliance provisions, the same policy
applies. If the two compliance provisions differ only n the frequency
of monitoring, for example, then the less stringent one may be dropped.
In reaching this decision, the EPA is following the policy set forth in
the section 112 (1) proposed rulemaking, which is available in the May
19, 1993 Federal Register.
In addition to raising the issue of more stringent requirements, you
also raise the issue of conflicting requirements. Conflicting
requirements would be those that could not both or all be met by the
source. For example, a limit expressed in mass of emissions per unit
of heat input would not be in conflict with a limit expressed in rate
of emissions. The EPA believes that conflicting requirements occur
infrequently. If they do exist, they do so independently of title V
permit program. I suggest that truly conflicting requirements be
addressed on a case-by-case basis.
Limiting potential to emit
CAPCOA has indicated that its primary concern with the title V
program is the large number of sources that are required to obtain
permits based on their potential emissions. Although many of these
sources actual emissions are below the major source
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thresholds, they would be required to apply for title V permits because
their potential emissions exceed the major source thresholds. CAPCOA
has proposed that a prohibitory rule be adopted and approved into each
air district's State implementation plan that would provide for the
creation of federally-enforceable emission limits, thereby enabling
sources to be excluded from the title V program.
We are developing two documents that I hope will provide useful
new guidance on limiting potential to emit. The first document will
address two new methods of limiting sources' potential to emit outside
of the title V permit program. One of these is the extension to
hazardous air pollutants (HAPs) of federally-enforceable emission
limits created through State operating permit programs that are
approved pursuant to the June 28, 1989 Federal Register. Previously,
only criteria pollutant emissions were considered eligible for direct
limitation through such permits.
The second approach is the one you propose, namely the use of
rules to establish emission limits through standardized protocols. The
rules would need to require sources to register and report in order to
be enforceable, but the application of rules to individual sources
would not need to be subject to EPA and public review. That review
would, as you suggest, focus on the rules themselves. As you may know
from your discussions with Region IX, the most difficult aspect of
developing these rules is ensuring that the emission limits they create
are enforceable as a practical matter. The document will cite the
currently available guidance on enforceability, and look to future,
more specific guidance as to how such rules can be made enforceable as
a practical matter.
The second document will provide what I believe to be the key
piece of specific guidance for California. Entitled "Criteria for a
draft model role for VOC and HAP sources," it will present EPA's
current thinking as to what such a rule must contain, including
specific recordkeeping and reporting requirements, in order for
emissions to be limited through limits on quantities and/or VOC content
of materials used. I anticipate that both of these documents will be
available for distribution by the end of next week and we will send
them to you immediately.
Permit fees
CAPCOA's issue, as expressed in your briefing document, is that a
detailed fee demonstration is burdensome, especially for
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small agencies, and your recommendation is that EPA provide more
flexibility in demonstrating fee adequacy.
As you probably know, I recently reissued guidance on fee
schedules (memorandum of August 4, 1993 entitled "Reissuance of
Guidance on Agency Review of State Fee Schedules for Operating Permits
Programs Under Title V," enclosed). That guidance is intended to
clarify the requirement in section 502(b)(3) of the Act that each
permitting authority collect fees sufficient to cover all reasonable
direct and indirect costs required to develop and administer its title
V permits program. The Act also sets forth the presumptive minimum
fee, as well as the requirement that fee adequacy be demonstrated if a
lesser amount than the presumptive minimum is to be collected.
The EPA recognizes that demonstrating the adequacy of a fee
schedule places a burden on permitting authorities. EPA Region IX
staff will be happy to assist California agencies in developing these
fee demonstrations and my office will be available to help review draft
demonstrations. I would also point out that there is considerable
flexibility in how fees may be assessed. Finally, I would like to
clarify the answer to a question raised at the September 22, 1993
meeting. Fees currently charged to sources that will be title V
sources may be included in any demonstration of fee program adequacy,
whether this is a detailed demonstration or a demonstration that
addresses the presumptive minimum. This assumes that those fees remain
in the fee schedule of the title V program and are used to support
title V activities.
Equivalence of programs
As I understand it, the subject of overall equivalence of existing
California programs with the requirements of title V was discussed at
the September 22 meeting. I wish to make clear today the Agency's
policy in this regard.
Permit programs must meet the minimum requirements of the Act, as
set forth in the implementing regulations at 40 CFR part 70. While
section 70.1(c) of these regulations states, "[t]he EPA will approve
State program submittals to the extent that they are not inconsistent
with the Act and these regulations," the preamble clarifies that "[t]he
EPA has no leeway to accept current programs other than to judge them
against the criteria for program content specified in section 502(b)."
See 57 Federal register 32265. Thus a weakness in one element compared
with the part 70 minimum may not be offset by stringency in another
element. For this reason1 overall equivalence will not be
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granted. Rather, each program, whether new or existing, will be
reviewed for its adequacy with respect to 40 CFR part 70. -
In conclusion, I am sure you know that interim approval is an
option provided by the Act. Interim approval may be granted if a
program "substantially meets" the minimum requirements but falls short
in some areas. The EPA' s policy on interim approval is set forth in
my August 2, 1993 memorandum entitled "Interim Title V Program
Approvals."
I trust that this letter is responsive to CAPCOA's concerns. My
staff and I look forward to working with you during the coming months
on approaches to limiting potential to emit. Please contact Kirt Cox
of my staff at 919/541-5399 or Debbie Jordan of Region IX at 415/744-
1253 should you have further questions.
Sincerely,
John S. Seitz
Director
Office of Air Quality Planning
and Standards
Enclosure
cc: James Boyd, California Air Resources Board
David Crow, San Joaquin Valley Unified AQMD
Abra Bennett, Monterey Bay Unified APCD
Stewart Wilson, CAPCOA
Ellen Linder, Bay Area AQMD
Honorable Calvin Dooley
Honorable William Thomas
Honorable Richard Lehman
Honorable Gary Condit
Michael Wang, Western States Petroleum Association
Question: If a source is subject to more than one standard
for the same pollutant at the same emissions unit, do
all of these standards have to be contained in the
permit or may the permit contain only the most
stringent standard?
Answerr: Under Section 70.6(a)(1) all applicable requirements
must be included in the Part 70 permit, and the permit
must reference the origin of and authority for all
terms and conditions of the permit. There are sources
which are subject to several standards at the same
emission unit for the same pollutant. For example, a
source may be subject to a PSD permitted BACT limit, a
NSPS standard and a SIP standard. Some have suggested
that only the most stringent of these emission limits
should go into the permit. However, each program under
the Act has its own criteria and methodology for
setting standards. Therefore, it may not always be
easy to determine which standard is the most stringent
because the standards may look very different.
Determining which standard is most stringent may
involve complex equivalency demonstrations. EPA cannot
realistically review these types of determinations in
the 45 days allowed for our review under section 505 of
the Act and Section 70.8.
Therefore, EPA has decided to follow the position set
forth in the proposed section 112(l) rulemaking.
Permits will generally be required to contain all
emission limits and compliance provisions (monitoring,
testing, recordkeeping, and reporting) of all
applicable requirements. However, if the different
applicable requirements are expressed in the same form
and units of measure (so that the only difference is,
for example, the number of the emissions limit or the
frequency of monitoring), then only the most stringent
provision would need to go into the permit. This will
facilitate EPA review in 45 days and help ensure that
only standards which are less stringent are left out of
permits. Both the emission limit and the compliance
provisions 6f the standards must be in the same form
and units of measure in order to delete one of the
standards from the permit.
Section 70.6(a) (1) (i) requires permits to reference
the origin of and authority for each term or condition
of the permit. Where one permit term is going to be
included in the permit to satisfy more than one
applicable requirement, the permit should have legal
citations to all the relevant applicable requirements
as the origin and authority for the permit term. This
is necessary in order to make the scope of the shield
and the applicability determinations made in developing
the permit clear.
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bcc: Robert Sussman
Lydia Wegman
Ed Lillis
Kirt Cox
Mike Trutna
Elise Hoerath, OE
Adam Schwartz, OGC
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