February 12, 1996
NOTE TO REVIEWERS
Thank you in advance for providing an expeditious review of
the attached White Paper Number 2. Like the first White Paper,
this draft guidance is generally intended to promote more efficient
title V implementation under the current part 70 regulations.
White Paper Number 2 in large part has been designed to address
issues raised by a California Working Group but the resolution of
these and other concerns should be useful nationwide.
This is a draft document that should not be distributed to
others, quoted, or cited. The EPA intends to release it, as
appropriately modified in response to your comments, as final
policy in late February. Accordingly, your comments are needed by
February 23, 1996.
If you have any questions, please contact Michael Trutna of
OAQPS at (919) 541-5345 (fax 919-541-4028) or Ginger Vagenas of
Region IX at (415) 744-1252 (fax 415-744-1076). Written comments
should be transmitted, if possible, to both Michael Trutna and
Ginger Vagenas.
Lydia Wegman
cc: D. Howekamp
M. Trutna
G. Vagenas
2/12/96 Draft
DELIBERATIVE AGENCY DOCUMENT - DO NOT CITE, QUOTE, OR CIRCULATE
2
WHITE PAPER NUMBER 2 FOR IMPROVED TITLE V IMPLEMENTATION
I. INTRODUCTION
This guidance is intended to build upon EPA's "White Paper
for Streamlined Development of Part 70 Permit Applications" (July
10, 1995) and to provide further guidance to sources and
permitting authorities in implementing part 70 programs. White
Paper Number 2 supplements, not obviates, the first White Paper
and both papers should be consulted for guidance in improving the
implementation of title V. In particular, White Paper Number 2
is designed to reduce confusion about the applicability of
various requirements for the source and to provide new mechanisms
to resolve issues pertaining to permitting and compliance.
Substantial contributions to this White Paper have come
from the California Title V Implementation Working Group (Working
Group). California air districts and industries which make up
the Working Group have decades of experience with operating
permits. These operating permits are generally just one
component of air programs that, in many districts, also include
local emission standards (often with associated recordkeeping and
reporting requirements), monitoring requirements, inspections,
source testing and new source review. The EPA has found the
insights and recommendations of the Working Group extremely
useful in integrating these various requirements using the
part 70 permitting process. While much of the guidance contained
herein addresses situations arising in California, it is intended
for use nationwide.
The guidance in White Paper Number 2, like that of the first
White Paper, is aimed at streamlining the content of part 70
permit applications and removing unintended barriers and
administrative costs. This guidance lowers current burdens and
improves implementation of part 70 in several ways. It first
allows permitting authorities to accept source proposals for
streamlining multiple applicable requirements on the same
emissions unit(s) or activity to eliminate redundant or
conflicting requirements, provided that compliance with the
streamlined limit would assure compliance with all applicable
requirements. Such streamlining will lead to substantial
reductions in permitting burdens by allowing for the first time
multiple applicable emissions limits and work practices expressed
in different forms and averaging times to be reduced to a single
set of requirements. It will also allow various monitoring,
recordkeeping, and reporting requirements that are not critical
to assuring compliance with the streamlined (most stringent)
limit to be subsumed.
The guidance further reduces burdens and improves
implementation by:
o Defining a strategy where regulatory authorities and the
regulated community can reduce the confusion and cost that
results when locally adopted rules differ from the EPA
approved SIP.
o Providing for the streamlined treatment of certain
applicable requirements that regulate relatively small
amounts of emissions, including streamlined treatment of
obligations to monitor and/or certify compliance. This
addresses current concerns that resources will be
unnecessarily consumed by matters of trivial environmental
importance.
o Reducing the level of information required to support
applicability decisions when sources stipulate to their
applicability and/or major source status.
o Allowing substantial reductions in the size of part 70
permit applications and permits through the referencing of
many types of existing information.
Finally, Attachment B provides example SIP language
addressing both part 70 and non part 70 sources for the efficient
establishment of alternative requirements without the need for a
prior source-specific SIP revision. This guidance should be
particularly useful to those seeking greater certainty or to
establish alternative test methods to those now approved by EPA.
The EPA believes that the guidance contained herein may be
implemented by permitting authorities and sources without
revisions to part 70 programs, unless a provision is specifically
prohibited by State regulations. In some situations, EPA will be
proceeding in parallel to issue clarifying rules. The EPA
strongly encourages States to allow sources to take advantage of
the streamlining opportunities provided in this guidance.
Sources are advised to consult with their permitting
authority to understand how the policies of this White Paper will
be implemented. In several situations (particularly those where
sources have already filed complete applications), permitting
authorities may choose to propose streamlining options and, if
mutually agreeable, work with the source to support a draft
permit containing a streamlined limit. Where EPA is the
permitting authority pursuant to part 71 regulations, the Agency
will implement both White Papers to the extent possible and
promote similar implementation where EPA delegates responsibility
for the part 71 program to a State.
The policies set out in this paper are intended solely as
guidance, do not represent final Agency action, and cannot be
relied upon to create any rights enforceable by any party.
II. ADDITIONAL GUIDANCE ON STREAMLINED DEVELOPMENT OF PART 70
PERMITS AND APPLICATIONS
A. Streamlining Multiple Applicable Requirements On The Same
Emissions Unit(s)
1. Issue.
Can multiple redundant or conflicting requirements
(emissions limits, monitoring, recordkeeping, reporting
requirements) on the same emissions unit(s) be streamlined into a
single set of understandable and enforceable permit conditions?
May an applicant propose to minimize, eliminate, or consolidate
applicable requirements? May a permitting authority develop such
a proposal? How would a permit application with a streamlining
proposal satisfy compliance certification requirements?
2. Guidance.
A source, at its option, may propose in its application to
streamline multiple applicable requirements into a single set of
permit terms and conditions. The overall objective would be to
determine the set of permit terms and conditions that will assure
compliance with all applicable requirements for an emission point
or group of emission points so as to eliminate redundant or
conflicting requirements. Otherwise applicable requirements that
are subsumed in the streamlined requirements could then be
identified in a permit shield. The process would be carried out
in conjunction with the submittal and review of a part 70 permit
application, as an addendum to an application, or as an
application for a significant revision to the part 70 permit
(unless EPA in its revisions to part 70 authorizes permitting
authorities to use a less extensive permit revision process).
The EPA plans to revise part 70 to provide that the compliance
certification required with initial application submittals may be
based on the proposed streamlined applicable requirement.
The permitting authority, at its option, may evaluate
multiple applicable requirements for a source category and
predetermine an acceptable streamlining approach. Such
evaluations should be made readily available to applicants. It
is up to the applicant, however, to request in its application
that such streamlined requirements be contained in the part 70
permit. Where streamlining would be of mutual interest, the
permitting authority and the source could work together during
the permit development stage to establish a basis for a
streamlined limit. This cooperative activity must result in a
record consistent with this guidance which supports the draft
permit containing the streamlined requirement. The approach
might be particularly useful where a source has already submitted
a complete part 70 permit application and the permitting
authority does not want to require the source to submit a formal
amendment to its application.
In addition, the concept of general permits can be
potentially useful to allow the transfer of streamlined
requirements to other similar sources or emissions units. The
information development and review conducted as part of
streamlining for an individual source can be used by the
permitting authority to generate a general permit for similar
sources within the same source category. The EPA and public
review beyond that needed to issue the general permit would not
be necessary when sources within the source category subsequently
apply for the streamlined permit conditions established under the
general permit.
The permit shield will result in an essential degree of
certainty by providing that when the source complies with the
streamlined requirement, the source will be considered to be in
compliance with all of the applicable requirements subsumed under
the streamlined requirement. Where the program does not now
provide for a permit shield, the permit containing streamlined
requirements should clarify this understanding (See II.A.3.
discussion). Permitting authorities without provisions for
permit shields are encouraged to add a permit shield provision at
the first opportunity, if they wish to realize fully the benefits
of streamlining.
Sources that opt for the streamlining of applicable
requirements must demonstrate the adequacy of their proposed
streamlined requirements. The following principles should govern
their streamlining demonstrations:
a. The most stringent of multiple applicable emissions
limitations for a specific regulated air pollutant on a
particular emission unit must be determined taking into
account:
o Emission limitation formats (emission limits in
different forms must be converted to a common format
and/or units of measure or a correlation established
among different formats prior to comparisons);
o Effective dates of compliance (to the extent
different);
o Transfer or collection efficiencies (to the extent
relevant);
o Averaging times; and
o Test methods prescribed in the applicable
requirements.
b. Work practice requirements must be treated as follows:
o A work practice requirement directly supporting an
emission limit (i.e., applying to the same emissions
point(s) covered by the emission limit) is considered
inseparable from the emission limit for the purposes of
streamlining emission limits. The proposed streamlined
emission limit must include its directly supporting
work practices, but need not include any work practice
standards that are associated with and directly support
the subsumed limit(s);
o Two or more requirements which apply to the same
work practice and apply to the same emissions or
emission point(s) but which do not directly support an
emissions limit, may be streamlined (e.g., different
leak detection and repair programs (LDAR));
o When dissimilar work practice standards (not
directly supporting an emission limit) apply to the
same emissions or emission point, the multiple work
practice standards cannot be streamlined.
o When multiple work practice requirements apply to
different emissions or emission points, the multiple
work practice requirements cannot be streamlined.
c. Monitoring, reporting, and recordkeeping requirements
should not be used to determine the relative stringency of
the applicable requirements to which they are applicable.
d. Where the preceding guidance does not allow sufficient
streamlining or where it is difficult to determine a single
most stringent applicable emissions limit by comparing all
the applicable emission limits with each other, sources may
perform any or all the following activities to justify
additional or different streamlining:
o Construct an alternative or hybrid emission limit
that is at least as stringent or more stringent as any
applicable requirement;
o Use a previously "State-only" requirement as the
streamlined requirement (subject to the limitations
described in footnote 4) when it is more stringent than
any applicable Federal requirement (this requirement
would then become a federally enforceable condition in
the part 70 permit);
o Use a more accurate and precise test method than the
one applicable (see footnote number 6) to eliminate
doubt in the stringency determination; or
o Conduct detailed correlations to prove the relative
stringency of each applicable requirement.
e. The monitoring, recordkeeping, and reporting
requirements associated with the most stringent emissions
requirement are presumed appropriate for use with the
streamlined emissions limit, unless reliance on that
monitoring would diminish the ability to assure compliance
with the streamlined requirements. To evaluate this
presumption, compare whether the monitoring proposed would
assure compliance with the streamlined limit to the same
extent as would the monitoring applicable to each subsumed
limit. If not, and if the monitoring associated with the
subsumed limit is also relevant to and technically feasible
for the streamlined limit, then monitoring associated with
the subsumed limit (or other qualifying monitoring) would
be included in the permit. The recordkeeping and
reporting associated with the selected monitoring approach
may be presumed to be appropriate for use with the
streamlined limit,,.
f. Permitting authorities must add to the part 70 permit
any additional terms and conditions as necessary to assure
compliance with the streamlined requirement. In all
instances, the proposed permit terms and conditions must be
enforceable as a practical matter.
3. Process.
An applicant proposing to streamline multiple requirements
applicable to a source, the permitting authority proposing to
streamline for a source or source category, or the applicant
working in agreement with the permitting authority would take the
following actions:
Step One - Provide a side-by-side comparison of all
requirements included in the streamlining proposal that are
currently applicable and effective for the specific
emissions units of a source. Distinguish between
requirements which are emission and/or work practice
standards, and monitoring and compliance provisions.
Step Two - Determine the most stringent emission and/or
performance standard (or any hybrid or alternative limits as
appropriate) consistent with the above streamlining
principles and provide the corresponding supporting
documentation relied upon to make this determination. This
process should be repeated for each emissions unit and each
pollutant combination subject to multiple applicable
requirements for which the applicant is proposing a
streamlined requirement.
Step Three - Propose one set of permit terms and conditions
(i.e., the streamlined requirements) to include the most
stringent emission limitations and/or standards, appropriate
monitoring and its associated recordkeeping and reporting
(see II.A.2.e.), and such other conditions as are necessary
to assure compliance with applicable requirements.
Step Four - The applicant must certify compliance with
applicable requirements. The EPA is planning to revise its
part 70 regulations to provide that a source may certify
compliance with only the proposed streamlined limit. Until
this is accomplished, EPA recommends that a source
certifying compliance only with the streamlined limit
indicate this in an attachment to the certification, so that
it is clear that the certification is being made with
respect to a set of terms and conditions that the source
believes "assure compliance" with all applicable
requirements. In any event, a source may only certify
compliance with a streamlined limit if there is source
compliance data on which to base such a certification.
(Such data should be available where the streamlined
requirement is itself an applicable requirement and may be
available if the streamlined limit is an alternative limit
(e.g., a previously State-only emissions limitation). If
there is not, then certifications must instead be made
relative to each of the applicable requirements judged to be
less stringent and must be based on data otherwise required
under them.
Step Five - Develop a compliance schedule to implement any
new monitoring/compliance approach relevant to the
streamlined limit if the source is unable to comply with it
upon permit issuance. The recordkeeping, monitoring, and
reporting requirements of the applicable requirements being
subsumed would continue to apply in the permit (as would the
requirement for the source to operate in compliance with
each of its emissions limits) until the new streamlined
compliance approach is operative.
Step Six - Indicate on the application forms that
streamlining of the listed applicable requirements under a
permit shield is being proposed and propose that a permit
shield would be in effect stating that compliance with the
streamlined limit assures compliance with the listed
applicable requirements. All emission and/or performance
standards not subsumed by the streamlined requirements must
be separately addressed in the part 70 permit.
Step Seven - When an applicant submits a streamlining
proposal, the permitting authority will evaluate the
proposal and its supporting documentation to determine
whether the requirements of Steps One through Six have been
met. Upon completion of the determination, and prior to
public notice, EPA recommends that the permitting authority
communicate its findings to the applicant and provide
reasonable opportunity for the applicant to accept the
findings or propose a resolution of the differences. Where
the permitting authority determines that the streamlining
proposal is inadequate, the source, to retain its
application shield, must expeditiously resolve any problems
identified by the permitting authority or update its prior
application based on the individual applicable requirements
previously proposed for streamlining.
Step Eight - The permitting authority must note the use of
this process in the required part 70 application summary, or
upon transmittal of the application or a revised application
to EPA. Alternatively, the applicant must note the proposed
use of streamlining when the source is required to provide
EPA a copy of the application (or summary) directly. In any
event, EPA must promptly receive copies of streamlining
demonstrations along with the otherwise required copies of
applications and/or their summaries.
4. Enforcement.
All terms and conditions of a part 70 permit are enforceable
by EPA and citizens, unless designated as being only State (or
locally) enforceable. In addition, a source violating a
streamlined emission limitation in the part 70 permit may be
subject to enforcement action for violation of one (or more) of
the subsumed applicable emission limits if a violation is
documented.
Upon receiving a part 70 permit, a source would not be
subject to an enforcement action for any failure to meet
monitoring, recordkeeping, and reporting requirements that are
applicable to requirements subsumed within the streamlined
requirement and specified under the permit shield. These
requirements would no longer be independently enforceable once
the permit has been issued.
If the permitting authority or EPA determines that the
permit does not assure compliance with applicable requirements,
the permit will be reopened and revised.
5. Discussion.
As sources subject to title V identify all applicable
requirements for inclusion in part 70 permit applications, they
may find that multiple applicable requirements (e.g., Federal
regulations and federally-enforceable State and local rules and
regulations) affect the same pollutant or performance parameter
for a particular emission unit. Likewise, the requirements of
federally enforceable terms and conditions in preconstruction or
operating permits may overlap with the requirements of federally
enforceable rules and regulations.
In these instances a source may be in compliance with the
overall emission limit of each of the applicable requirements,
but is required to comply with a multitude of redundant or
conflicting monitoring, reporting or recordkeeping requirements.
For example, a source owner faced with two emissions limits for
the same pollutant at a specific emissions point may be required
to install separate monitoring instrumentation and submit
separate monitoring reports for each. In such a case, the
monitor required to demonstrate compliance with the less
stringent limit is unnecessary since compliance with the more
stringent limit assures compliance with the less stringent limit.
Similarly, the added recordkeeping and reporting for unnecessary
instrumentation creates an administrative burden for both the
facility and the implementing agency without an associated gain
in compliance assurance. Prior to title V there has been no
federally enforceable means to resolve this situation.
The EPA encourages permitting authorities, to the extent
possible, to use the part 70 permit issuance process to
streamline multiple applicable requirements where they are
redundant or even conflicting. In this way, the part 70 process
with its procedural safeguards can be used to focus all concerned
parties on the appropriate applicable requirements instead of
maintaining the costs of multiple sets of controls, monitoring,
recordkeeping, and reporting approaches established at different
times without apparent regard for each other.
The legal basis for streamlining multiple applicable
requirements relies on section 504(a), which requires that
title V permits contain emissions limits/standards and other
terms as needed to assure compliance with applicable
requirements. This section notably does not require repetition
of all terms and conditions of an applicable requirement when
another applicable requirement or part 70 permit condition (i.e.,
"streamlined requirement") could be fashioned to otherwise assure
compliance with that applicable requirement. There is no bar to
how many applicable requirements may be addressed for compliance
purposes by one equally or more stringent or "streamlined"
requirement.
Section 504(f) lends additional certainty to permit
streamlining. It specifically provides that the permitting
authority may authorize that compliance with the permit may be
deemed to be compliance with the Act provided that the permit
includes all applicable requirements. Thus, this section allows
the permitting authority to issue a permit containing a shield
which protects a source against a claim that it is violating any
applicable requirements listed in the permit shield as being
subsumed under the streamlined requirement, provided that the
source meets the permit terms and conditions that implement the
streamlined requirement.
Part 70 is also receptive to the issuance of streamlined
permits. It contains parallel language to the statute for
emissions limits and for permit shields in 70.6(a)(1) and (f).
On the other hand, language in 70.6(a)(3) appears to restrict
streamlining by requiring that all "applicable" monitoring,
recordkeeping, and reporting requirements be placed in the
permit. The EPA does not intend for these provisions to preclude
streamlining. Instead, the Agency believes that the provisions
should be consistent with the flexibility for streamlining
provided in section 504(a) of the Act and in 70.6(a)(1). To
require otherwise would be anomalous and could frustrate
legitimate streamlining efforts. The EPA intends to revise
part 70 to reflect this understanding in a future rulemaking.
Streamlining may be limited in cases where an applicable
requirement defines specific monitoring requirements as the
exclusive means of compliance with an applicable emissions limit.
Some interpret these cases to require that only one set of
monitoring requirements may be used to determine compliance and
that only these requirements may appear in the part 70 permit.
The EPA believes instead that section 504(a) supersedes any need
for such exclusive monitoring, but nonetheless recommends that
States address any potential concerns by adopting certain SIP
language in the future. States that choose to revise their
existing SIPs to contain authorizing language to overcome any SIP
exclusivity problems may use the example language in
Attachment B. The EPA believes that similar flexibility should
be provided to non-part 70 sources as well. To that end,
Attachment B also provides a SIP process which allows the same
flexibility for non-part 70 sources.
With respect to new source review (NSR), States can process,
in parallel with the part 70 permit issuance process, a revision
to an existing NSR permit as necessary to resolve any exclusivity
concerns within existing NSR permits (See EPA's first White
Paper).
Currently the implementing regulations for section 112(l) at
40 CFR part 63, subpart E represent an additional constraint on
the streamlining of applicable requirements in part 70 permits
but only where a State or local agency has accepted a delegation
of authority for a particular MACT standard by virtue of its
commitment to replace the Federal section 112 emission standard
with the State's own standard or program during the part 70
permit issuance process. In the subpart E rule at 63.94, the
EPA has specified the criteria for approving such alternative
limits and controls to meet an otherwise applicable section 112
requirement. These criteria must be satisfied to ensure that any
change to the Federal rule results in requirements that, among
other things:
o Reflect applicability criteria no less stringent than
those in the otherwise applicable Federal standards or
requirements;
o Require levels of emissions control for each affected
source and emission point no less stringent than those
contained in the Federal standards or requirements;
o Require compliance and enforcement measures for each
affected source and emissions point no less stringent than
those in the Federal standards or requirements;
o Express levels of control and compliance and enforcement
measures in the same form and units of measure as the
Federal standard or requirement for section 63.94 program
substitutions;
o Assure compliance by each affected source no later than
would be required by the Federal standard or requirement.
Thus, when a State or local agency seeks to replace a
Federal section 112 emission standard with requirements arising
from its own air toxics standard or program (such as a toxics NSR
program) during the part 70 permit issuance process, streamlining
must take place by meeting both the criteria of subpart E and the
criteria of this guidance. However, because most States are
planning to take direct delegation of Federal emission standards
through subpart E procedures that do not rely on the part 70
permit issuance process, the EPA believes that the subpart E
criteria for streamlining applicable requirements will be
necessary only in a minority of instances. In the majority of
cases, where a State takes delegation of a Federal standard
(e.g., through straight delegation), the applicable section 112
requirements could be streamlined by following only the criteria
outlined in section A.2., above. Where there are a large number
of sources in the same category subject to a MACT standard for
which the State has a regulation with equivalent requirements,
EPA recommends that the State explore delegation options under
section 63.93 in order to best utilize available resources.
It should be noted that the current subpart E rule may be
subject to change as a result of pending litigation. Currently,
the EPA intends to revise the rule within the parameter of the
Court's decision to allow greater flexibility for approving State
air toxics standards and programs and to minimize or remove (as
appropriate) any constraint that subpart E might impose on the
streamlining of applicable requirements in part 70 permits.
Finally, States are strongly encouraged to adopt regulatory
provisions allowing permitting authorities to grant the permit
shield where they cannot now do so. The permit shield is an
effective means to clarify that for applicable requirements
listed as subsumed under the streamlined requirements, compliance
with the streamlined requirements is deemed to also be compliance
with the subsumed requirements. Such an understanding is
essential to support and defend the issuance of any permit which
provides for the streamlined treatment of multiple applicable
requirements.
In the absence of a permit shield, it is imperative that the
permit contain language that lists the applicable requirements
being subsumed into the streamlined requirement and states that
compliance with the streamlined requirement will assure
compliance with the listed requirements. Additional language in
the permit shield should explicitly state that noncompliance with
the streamlined requirement will not be a violation of the
monitoring, recordkeeping and/or reporting requirements
associated with the listed applicable requirements.
B. Development Of Applications And Permits For Outdated SIP
Requirements
1. Issue.
Can sources file part 70 permit applications on the basis of
locally adopted rules pending EPA SIP approval rather than the
current SIP requirements? Can sources certify their compliance
status on the same basis? Under what circumstances can
permitting authorities issue and/or later revise part 70 permits
based on such locally adopted rules?
2. Guidance.
a. General. In the "White Paper for Streamlined
Development of Part 70 Permit Applications" (Section II.B.6.),
EPA described a mechanism for simplifying permits where a source
is subject to both a State adopted rule that is pending SIP
approval and the approved SIP version of that rule. Under that
approach, the pending SIP requirements would be incorporated into
the State-only portion of the permit and would become federally
enforceable upon EPA approval of the SIP. The EPA believes that
in most instances, the approach described in the first White
Paper adequately addresses the described problem. In some areas
(most notably California), however, a sizeable backlog of pending
SIP revisions exists, and a more far-reaching solution is needed.
In today's guidance, therefore, another approach that may be used
by EPA and permitting authorities to address this situation is
described.
Under this new alternative, application completeness may
initially be based on locally adopted rules including those which
would relax current (i.e., federally-approved) SIP requirements,
provided that in all cases the local rule has been submitted to
EPA as a SIP revision.
Where the permitting authority or the source has
demonstrated to EPA's satisfaction that the local rule is more
stringent and therefore assures compliance with the current SIP
for all subject sources, a permit application relying on the
local rule may be deemed to be complete and a permit containing
the requirements of the local rule rather than the current SIP
could be issued for part 70 purposes. That is, consistent with
section 504(a) of the Act, the part 70 permit need only contain
emission limits and other terms and conditions (i.e., the more
stringent local rule) as needed to assure compliance with the
applicable requirement (i.e., the current SIP regulation).
An EPA finding that a submitted rule assures compliance with
the approved SIP rule would be a preliminary indication of EPA's
belief that a part 70 permit incorporating the terms of the
submitted rule would also assure compliance with the approved
SIP. Such a finding would not equate to rulemaking, and so would
not constitute a revision of the SIP. Therefore, a preliminary
finding does not necessarily ensure that the proposed revision
will ultimately be approved by EPA, nor does it protect a source
from enforcement of the approved SIP. Further, such a finding
does not predetermine the outcome of the part 70 permit
proceeding. Reviewers would have the ability to evaluate any
proposed permit terms or conditions based on pending SIP
revisions to determine whether the permit assures compliance with
applicable requirements, i.e., the approved SIP. However, EPA
believes that a finding of this nature should provide the source
and the permitting authority sufficient assurance to proceed with
the issuance of a permit that reflects the terms of the submitted
local rule rather than the approved SIP. Note that a part 70
permit can be based on a local rule even if the local rule is
subsequently disapproved by EPA for SIP purposes, provided: (1)
a permit based on the local rule would assure compliance with all
applicable requirements (including the approved SIP); and (2) the
permit meets all part 70 requirements.
Where the local rule submitted to EPA as a SIP revision
represents a relaxation of the current SIP requirement (e.g., the
local rule would replace an existing technology forcing rule that
has been determined to be unachievable in practice), a part 70
source may propose in its permit application to base its permit
on the local rule in anticipation of EPA approval. However, a
permit based on the local rule could not be issued prior to SIP
approval of the rule. This is because a permit based on the
relaxed requirements of the local rule cannot assure compliance
with the more stringent applicable requirement (the approved
SIP), as required by section 504 of the Act. Similarly, a
part 70 source may be subject to pending SIP revisions that may
tighten certain current SIP obligations and relax others for that
source category. Here again the criteria of section 504(a) would
not be met by relying on the local rule, and the permit could not
be issued without the current SIP requirements, unless a source
opted to demonstrate that the submitted rule represents for that
source a more stringent requirement than the current SIP. In
such a case, the part 70 permit could subsequently be issued for
that source on the basis of the local rule, providing the permit
terms would assure compliance with the approved SIP.
b. Initial actions by EPA and permitting authorities. The
EPA is committed to working with States within available
resources to assure that the timetable for overall permit
issuance is not adversely affected from pending SIP revisions
that are not straightforward tightenings. The extent of the
problem, however, will vary greatly and, in some cases, may
require a specific plan of action between EPA and certain States
to expedite SIP processing where the problem is substantial.
In California, where this problem is believed to be most
extensive, EPA, the districts, and the California Air Resources
Board are in the process of identifying rules in the SIP backlog
that are not straightforward tightenings of the currently
approved SIP, and will target them for expeditious processing.
These rules will be identified within a specified timeframe,
generally within one year of the effective date of a district's
part 70 program. The EPA's Region IX will enter into formal
agreements with affected districts and will commit to take action
on this "targeted" portion of the SIP backlog before
comprehensive permit issuance for sources affected by the backlog
would be required, provided this is consistent with the
transition plan (as it may be revised). Other EPA Regional
Offices will determine the need and resources available for this
type of exercise on a case-by-case basis. Region IX will also
commit to process expeditiously any similar rules submitted or
identified after the period of the formal agreement, although
such processing would not necessarily occur before permits must
be issued to sources affected by these rules.
Under this agreement permitting authorities in the districts
need not issue the portion of the part 70 permit covering
emissions units affected by the targeted backlog until the rule
adoption or change identified in the formal agreement has been
acted on by EPA, consistent with the flexibility allowed in the
permit issuance transition plan in the permitting authority's
program. This should in most cases allow permitting authorities
to delay issuing permits to sources to the extent they are
affected by the targeted SIP backlog until EPA completes its
review action on the pending SIP revision. Where a transition
plan contains a permit issuance schedule that would not allow
postponing permit issuance until EPA has acted on the proposed
SIP revisions, appropriate changes to the plan can still be made
to defer permit issuance until EPA action on the targeted SIP
backlog following the same approach described for changing
application forms in EPA's first White Paper. Within these
constraints, a permitting authority may allow for issuance of
part 70 permits to the facility in phases such that permits
covering those emissions units of the facility affected by the
targeted SIP revision are issued later. The EPA agrees that
[allowable] delays in permit issuance will not be cause for a
finding of failure by the permitting authority to adequately
administer or enforce its part 70 program. The initial permit
under such an approach, however, does not shield the source from
the enforceability of the excluded requirements and the
obligation to obtain permit conditions covering the emissions
units excluded in the first phase permit after EPA has acted on
the relevant SIP rule backlog.
c. Ongoing actions.
The preceding guidance should address the most significant
problems associated with the development of part 70 permit
applications and the subsequent issuance of part 70 permits that
result from the existence of a SIP backlog. The EPA recognizes,
however, that areas experiencing the most significant start-up
problems may well require an ongoing program to manage the
potential SIP backlog so as to prevent significant problems of
this nature from occurring in the future. For example, the
permitting authority and EPA may need to work together to
identify rules for expeditious SIP processing. It may on a
continuing basis also be appropriate in some situations for EPA
to determine preliminarily whether a submitted rule can be listed
as one which would assure compliance with the SIP rule it seeks
to replace. This would enable the permitting authority to adjust
its priorities for requiring application updates and for
accomplishing permit issuance and revision.
A source that has filed a complete application may opt to,
or be required to, update its current application as a result of
changes or pending changes to the SIP. The likelihood of these
changes occurring will vary from area to area, and are most
likely to affect sources with later times for initial permit
issuance. For example:
o The status of a local rule previously relied upon may
change or a new, local rule that presents additional
streamlining opportunities could be adopted.
o Where a local rule that was previously listed in the
formal agreement for expeditious SIP processing (because the
rule is not a straightforward strengthening) is disapproved
by EPA and the source has relied on that rule in preparing
its application, the applicant must file an application
update that either demonstrates that compliance with the
local rule would assure compliance with the current SIP or
demonstrates direct compliance with the current SIP.
o The adoption and submission to EPA of a more stringent
local rule after an applicant has filed its application may
present a new and desired opportunity for streamlining. If
so, the applicant could opt to file an application update to
shift the compliance focus of its current application to the
newly adopted local rule, which is pending SIP approval,
provided it meets the streamlining criteria described in
section II.A. above.
Sources may encounter new rule situations after initial
permit issuance which could lead them to request a permit
revision. Sources may propose a revision to an issued part 70
permit where a newly adopted local rule would present a desirable
streamlining opportunity. The significant permit revision
process would be required under part 70 to accomplish this change
(unless EPA in its revisions to part 70 authorizes permitting
authorities to use a less extensive permit revision process).
To initiate the action, the source must file an application
to revise the permit so that it would contain the requirements of
local rule instead of the current SIP. This application must
meet the previously defined and applicable streamlining criteria.
In response, the permitting authority may subsequently
revise the permit based on the local rule in lieu of the current
SIP where (1) the rule is listed by the EPA as one where
compliance with it would assure compliance with the relevant
portions of the current SIP, or (2) the applicant has provided a
source specific demonstration consistent with the streamlining
criteria in II.A.2. that assures this result. A permit shield or
similar permit condition should be issued for purposes of
certainty. In the absence of a shield [or similar permit
condition] all aspects of the approved SIP remain enforceable,
regardless of the source's compliance status with respect to the
permit.
3. Process.
a. Initial Applications.
An applicant proposing to submit its part 70 permit
application based on a local rule that has been submitted for EPA
approval rather than the current SIP would take one of two
courses of actions depending on the status of the local rule with
EPA:
Local rules pending SIP approval which have preliminarily
been addressed by EPA. The first type of action would be
appropriate for local rules that (1) have been previously
demonstrated to EPA's satisfaction to be at least as stringent as
the approved SIP rule so as to assure compliance with it for all
subject sources or (2) have been specifically identified in a
formal agreement between the permitting authority and EPA for
expeditious SIP processing. The latter category will typically
involve local rules pending SIP approval which do or could
represent full or partial relaxations of the current SIP. Where
they choose to use this approach, the permitting authority and
EPA will maintain an up-to-date list of local rules which meet
either of these criteria.
In preparing initial part 70 permit applications with
respect to such local rules:
Step One - In its application, the applicant will indicate
that it has opted for a streamlining approach, list or cross
reference all requirements from applicable local rules that
are eligible for this approach, and refer to the list
maintained for this purpose by the permitting authority.
Step Two - The applicant will identify in the permit
application the current SIP requirements that the pending
SIP revision would replace.
Step Three - The applicant may choose to certify compliance
with the requirement(s) of the local rule in lieu of the
current SIP if there is sufficient source compliance data on
which to base such a certification. (The EPA is proposing
to revise its part 70 regulations to clarify that such a
certification would meet the requirements of 70.5(c)(10).)
Step Four - The applicant may propose that a permit shield
would be in effect upon permit issuance. For those listed
local rules which are recognized by EPA as being able to
assure compliance with the current SIP rule, the applicant
would indicate in the application that a permit shield (or
alternatively, other similar language where authority for a
permit shield is not available) is being proposed to be
incorporated into the permit to confirm this understanding.
Local rules not addressed by EPA. The second type of action
would be appropriate where EPA has not made a preliminary finding
that a local rule would assure compliance with the existing SIP
or where the rule has not been included in a formal agreement as
described above. An applicant may still propose to base its
initial part 70 application on other local rules pending SIP
approval, provided it can show that compliance with the local
rule would assure compliance with the current SIP (i.e., make an
adequate demonstration consistent with the streamlining criteria
described in section II.A.2. above.) Again, if a part 70 permit
application has already been submitted without streamlining but
the source agrees to subsequently pursue this option, the
permitting authority may work with the source to support
streamlining requirements during the permit development process.
Step One - The applicant will list in its application the
requirements of the local rule(s) it proposes to rely on and
indicate that it has opted for a streamlining approach. The
applicant must develop and submit with its application
sufficient documentation that demonstrates the local rule
assures compliance with the applicable SIP. Guidance that
sets forth the necessary elements and guiding principles
that govern such a demonstration is included in section
II.A.2.
Step Two - The applicant will identify in the permit
application the current SIP requirements that the pending
SIP revision would replace.
Step Three - The applicant may choose to certify compliance
with the proposed requirements of the local rule if there is
sufficient source compliance data on which to base such a
certification. (The EPA is proposing to revise its part 70
regulations to clarify that such a certification would meet
the requirements of subsection 70.5(c)(10).)
Step Four - The applicant may propose a permit shield (where
available) or similar permit language which would confirm
that compliance with the local rule assures compliance with
the relevant requirements of the current SIP.
b. Initial Permit Issuance Process.
After receiving a complete application, the permitting
authority must note where the applicant has proposed use of the
approaches described in section II.B.3.a. in the application
summary, or upon transmittal of the application or revised
application to EPA. Copies of applications containing such
proposals must be promptly submitted to EPA.
Where the rule is listed by the EPA as one where compliance
with it would assure compliance with the relevant portions of the
current SIP, or the applicant has provided a source specific
demonstration consistent with the streamlining outlined in
II.A.2., the permitting authority may issue permits based on the
local rule in lieu of the current SIP. A permit shield or
similar permit condition which confirms this understanding should
be issued for purposes of certainty.
When an applicant demonstrates a more stringent effect under
a local rule for all affected emissions units, the permitting
authority will evaluate this proposal and any supporting
documentation. Upon completion of this evaluation and prior to
releasing a draft permit public notice, the permitting authority
is advised to communicate any concerns to the applicant and
provide reasonable opportunity for the applicant to accept the
findings or propose a resolution of the differences. This may
cause some revisions to the application as originally filed.
If the applicant is unable to demonstrate to the permitting
authority's or EPA's satisfaction that the local rule (as it
applies to the applicant's facility) assures compliance with the
applicable SIP rule, the applicant must revise its application to
rely on the SIP approved rule. All required application updates
must be submitted on or before the reasonable deadline required
by the permitting authority in order for the source to keep any
previously granted application shield.
Consistent with the flexibility allowed in the permit
issuance transition plan (as it may be revised), the permitting
authority may delay issuance of those portions of a source's
permit that are covered by a rule identified in the formal
agreement until EPA has acted on the relevant rule(s).
Comprehensive permits issued to such a source prior to the time
that EPA has acted on the rule must be based on the current SIP
(unless the source has provided an adequate streamlining
demonstration).
4. Enforcement.
All terms and conditions of the part 70 permit are
enforceable by EPA and by citizens. In addition, a source
violating the emission limitation in the part 70 permit is also
subject to enforcement action for violation of the current SIP
emission limits if a violation of this limit can be documented.
Upon receiving a part 70 permit based on the local rule, the
permit terms and conditions implementing the local rule would
become federally enforceable. A source would not be subject to
an enforcement action for any failure to meet monitoring,
recordkeeping, and reporting requirements that are required under
the currently approved SIP, if such an understanding has been
specified in the permit. The EPA encourages permitting
authorities currently without provisions for incorporating permit
shields to add them at their first opportunity. These
requirements would no longer be independently enforceable.
If the permitting authority or EPA determine that the permit
does not assure compliance with applicable requirements, the
permit must be reopened and revised.
5. Discussion.
Sources in California districts currently are subject to
several locally adopted rules which are pending before EPA as
proposed SIP revisions. The majority of these local rules have
been determined by the districts to be more stringent than the
SIP rules that they seek to replace, although some of these rules
would relax the current SIP requirements for certain affected
sources. In some cases, technology-forcing SIP rules have been
found to be infeasible to achieve and, instead of seeking to
enforce them, districts have adopted more achievable local rules.
Until the local rules are approved into the SIP, sources are
subject to both the local rule and the federally approved version
of the rule.
The resulting "outdated SIP" presents special problems to
sources which must file a part 70 permit application. In
particular, questions arise as to whether sources must complete
their applications and certify compliance based on SIP rules
which have been superseded by more stringent local rules or by
rules that have been relaxed where, for example, the permitting
authority has found the current SIP rules to be unachievable.
Those problems, while most apparent in their effect on the start-
up of a part 70 program, are also ongoing in nature and may
create a need to update initially complete permit applications
and to revise issued permits. The EPA believes that these
problems with outdated SIP rules are most extensive in California
but are not unique to that State.
The EPA strongly believes that implementation of title V to
the extent possible should complement, not complicate, the
implementation of other titles, including title I, the purpose of
which is to assure adoption of programs that will attain and
maintain the NAAQS. Accordingly, the Agency is providing this
guidance which will allow sources and permitting authorities to
rely on more stringent local rules for permit issuance. The
overall strategy for sensitizing the SIP revision process to part
70 concerns presented in this guidance will allow sources to
focus more on current air quality requirements in all aspects of
part 70 permitting; application development and update, permit
issuance, and permit revision.
The legal basis for recognizing a local rule pending SIP
approval in lieu of the current, but less stringent, SIP
requirement or for streamlining multiple applicable requirements
is identical (see discussion in section II.A.5.). The
opportunities for shifting to the more stringent local rule are
correspondingly affected by the limitations previously described
for the streamlining of applicable requirements.
C. Treatment Of Insignificant Emissions Units And/or Activities
1. Issue.
How must sources address insignificant emissions units
and/or activities (IEU's) (i.e., emissions unit(s) or activities
which have insignificant emissions relative to at least one
applicable requirement to which they are subject) in their part
70 permit applications? Must the application and the subsequent
permit address each IEU individually and require periodic
monitoring where it is not otherwise provided by a generically
applicable requirement? On what basis can the initial and future
compliance certifications be made for IEU's with generally
applicable requirements?
2. Guidance.
The EPA interprets part 70 to allow considerable discretion
to the permitting authority in tailoring the amount and quality
of information required in permit applications and permits as
they relate to IEU's. In general, permit applications must
contain sufficient information to support the drafting of the
part 70 permit (including certain information for IEU's subject
to only generically applicable requirements) and to determine
compliance status with all applicable requirements. The EPA,
however, interprets part 70 to allow permitting authorities
considerable discretion as to the format and content of permits,
provided that compliance with all applicable requirements,
including those for IEU's, is assured. The Agency believes that
the clarifications contained herein afford permitting authorities
sufficient flexibility to treat IEU's in a manner commensurate
with the environmental benefits that may be gained from their
inclusion in the permit.
a. Permit Applications - Information. With regard to
part 70 obligations to describe and list IEU's in applications
and permits, the permitting authority can use the generic
grouping approach for emissions units and activities as discussed
in the first White Paper. In addition, the requirement to
identify all applicable requirements, including those for IEU's,
can normally be addressed by standard or generic permit
conditions with minimal or no reference to any specific emissions
unit or activity. Different generic permit tables may be
necessary to cover the situation for a particular type of IEU
which is governed by different applicable requirements.
Similarly, the first White Paper provides that no emissions
estimates need be provided for even regulated emissions streams
where it would serve no useful purpose to do so. This should be
the case for IEU's where the amount of emissions from a unit is
not relevant to determining applicability of, or compliance with,
the requirement. Except where the contributions of IEU's would
need to be more precisely known to resolve issues of
applicability or major source status would the permitting
authority need to request emissions estimates for part 70
purposes.
b. Permit Applications - Initial Compliance Certifications.
Section 70.5(c)(9) requires complete part 70 applications to
contain a certification of compliance with all applicable
requirements by a responsible official and a statement of the
methods used for determining compliance. This certification must
be based on a "reasonable inquiry" by the responsible official.
The EPA believes that for the generic or facility-wide
requirements applying to an IEU reasonable inquiry for initial
certifications need only be based on available information, which
would include any information required to be generated by the
applicable requirement. Regarding the latter, the initial
certification can be based on only the latest cycle of required
information (e.g., a source could generally certify compliance if
this were indicated by the most recent required monitoring).
Where the applicable requirement does not require monitoring, the
70.5(c)(9) requirement to certify compliance does not itself
require that monitoring be done to support a certification.
Similarly, there is no need to perform an emissions test to
support this compliance certification if none is required by the
applicable requirement itself. In the case of IEU's, a
certification of compliance can be made where there is no
required monitoring and there is no knowledge on the part of the
responsible official to the contrary.
c. Permit Content - Applicable Requirements. With regard
to part 70 obligations to include all applicable requirements in
the permit, the permitting authority can also use the generic
grouping approach for emissions units and activities as discussed
in the first White Paper. That is, the applicable requirements
attached to IEU's, especially generically applicable
requirements, can normally be adequately addressed in the part 70
permit by standard permit conditions with minimal or no reference
to any specific emissions unit or activity, provided that the
scope of the requirement and the manner of its enforcement are
clear. Different generic permit provisions may be necessary to
cover the situation for which a different types of IEU are
governed by different applicable requirements.
d. Permit Content - Monitoring, Recordkeeping, and
Reporting. Section 70.6(a)(3)(i) requires all applicable
requirements for monitoring and analysis procedures or test
methods to be contained in part 70 permits. In addition, where
the applicable requirement does not require periodic testing or
monitoring (which may consist of recordkeeping designed to serve
as monitoring), the permitting authority must prescribe periodic
monitoring sufficient to yield reliable data from the relevant
time period that are representative of the source's compliance
with the permit. Many of the generically applicable requirements
for IEU's have a related test method, but relatively few have a
specific regiment of required periodic testing or monitoring.
The EPA believes that the permitting authority has in
general broad discretion in determining the nature of any
required periodic monitoring and it is particularly evident in
the case of generically applicable requirements, which tend to
cover IEU's as well as significant emissions units. The
requirement to include in a permit testing, monitoring,
recordkeeping, reporting, and compliance certification sufficient
to assure compliance does not require the permit to impose the
same level of rigor with respect to all emission units and
applicable requirement situations. It does not require extensive
testing or monitoring to assure compliance with the applicable
requirements for emission units that do not have significant
potential to violate emission limitations or other requirements
under normal operating conditions. In particular, where the
ability to assure compliance with the underlying applicable
requirement for an IEU is not threatened by a lack of a regular
program of monitoring and where periodic testing or monitoring is
not otherwise required by the applicable requirement, then the
permitting authority can in this instance provide that the status
quo (i.e., no monitoring) will meet 70.6(a)(3)(i). For IEU's
subject to a generically applicable requirement for which the
permitting authority believes monitoring is needed, a streamlined
approach to periodic monitoring, such as an inspection program to
assure the proper operation and maintenance of emissions
activities (e.g., valves and flanges), should presumptively be
appropriate.
The EPA's policy on IEU monitoring needs is based on its
belief that IEU's typically are associated with inconsequential
environmental impacts and present little potential for violations
of generically applicable requirements, and so may be good
candidates for a very streamlined approach to periodic
monitoring. As EPA noted in the first White Paper, generically
applicable requirements typically reside in the SIP. Permitting
authorities therefore not only have the best sense of which
requirements qualify as generic, but also where it is appropriate
to conclude that periodic monitoring is not necessary for IEU's
subject to these requirements. Where the source ascertains that
the permitting authority will not require periodic monitoring for
IEU's, it can of course omit a periodic monitoring proposal from
the application.
e. Permit Content - Compliance Certifications. Section
70.6(c)(5) requires in part that each permitted source submit no
less frequently than annually a certification of its compliance
status with all the terms and conditions of the permit and
whether any compliance was continuous or intermittent. This
certification will be based on available information, including
monitoring and/or other compliance terms required in the permit.
Where, for instance, a permit does not require monitoring for
IEU's subject to a generically applicable requirement and there
were no observed, documented, or known instances of non-
compliance, an annual certification of continuous compliance is
presumptively appropriate. Similarly, where monitoring is
required, an annual certification of continuous compliance is
also appropriate when no violations are monitored and there were
no observed, documented, or known instances of non-compliance.
f. Permit Content - Permit Shield. Section 70.6(f)
provides that compliance with the conditions of the permit shall
be deemed compliance with any applicable requirements, provided
that such applicable requirements are specifically identified in
the permit, or the permitting authority, in acting on the permit,
determines that other requirements, specifically identified, are
not applicable to the source. Where the permit only includes a
general table of applicable requirements for IEU's and does not
attempt to determine the requirements which specifically apply to
individual IEU's then the permitting authority has not made the
determinations required under subsection 70.6(f) so as to grant
the permit shield. As such, any permit which takes advantage of
the generic table approach to list the applicable requirements
for IEU's can provide the permit shield for IEU's only if the
permitting authority determines that the table defines the only
applicable requirements for the IEU's and there is no ambiguity
as to which units these requirements apply.
3. Discussion.
Many of the concerns expressed to EPA regarding the
treatment of IEU's in the application and permit arise because
IEU's are in most cases not directly regulated, and therefore
could be left off the permit entirely, were it not for the
presence of certain generic requirements that apply to all
emissions units. Though the focus of concern is their
applicability to IEU's, responses to these concerns derive
primarily from the flexibility that exists in part 70 for dealing
with generically applicable requirements. In implementing this
flexibility, it may be appropriate for the permitting authority
to further distinguish between units that have been designated as
insignificant and those that have not. This is so because the
relative size of a unit can be an important factor in deciding
how to fashion permit terms even for a generically applicable
requirement, and State-established IEU's normally define the
smallest emissions points. However, EPA notes that, as a matter
of part 70 interpretation, whether a unit has been designated as
insignificant is not necessarily critical to its treatment in the
part 70 permit.
Concerns have been expressed that addressing the relatively
trivial portion of the emissions attributable to the IEU
emissions of part 70 sources will consume as much as or more than
50% of the total resources available to issue part 70 permits.
That is, according to their understanding of part 70, applicants
and permitting authorities will expend greater resources than
warranted to determine the specific applicability of requirements
to the IEU's, how compliance with them will be assured, and the
basis on which the certification of compliance status of the
source with respect to these IEU's would be made.
The EPA believes that the policy described for addressing
generically applicable requirements in applications and permits,
particularly as they apply to IEU's allows permitting authorities
sufficient flexibility to streamline the required administrative
effort commensurate to the environmental significance of the
varying types of IEU situations. This should prevent the
potentially high but unintended level of costs identified by
certain sources and permitting authorities from occurring in the
future with respect to IEU's.
D. Use of Major Source and Applicable Requirement Stipulation
1. Issue.
When an applicant stipulates that it is a major source and
subject to specific applicable requirements, how much, if any,
additional information related to applicability is necessary in
the part 70 permit application?
2. Guidance.
If an applicant stipulates that it is a major source and
subject to specific applicable requirements, it need not provide
additional information in its application to demonstrate
applicability with respect to those requirements. This does not
affect the requirement to provide information for other purposes
under part 70, such as to support a compliance certification or a
request for a permit shield or to describe the emissions
activities of its site (see first White Paper).
Where the permitting authority has had previous review
experience with a particular source (e.g., issued it a permit),
or otherwise has an adequate level of familiarity with the
source's operation (e.g., current emissions inventory
information), it may allow the applicant to stipulate that:
o Its facility is a major source and subject to part 70
permitting, without providing any additional information for
the applicability determination;
o It is subject to specific applicable requirements, to be
included in its part 70 permit, without providing additional
information to establish applicability for stipulated
requirements; or
o It is subject to only portions of an applicable
requirement and state that it is not subject to other
portions. Such a stipulation must explicitly state which
portion of the rule applies and which does not.
Stipulation by a source to major source status or specific
applicable requirements in a part 70 application does not
preclude the permitting authority from requesting additional
information from the applicant for establishing the applicability
of non-stipulated requirements or for verifying a stipulation
that certain requirements are not applicable.
3. Discussion.
In general, part 70 requires that applications contain
information to the extent needed to determine major source
status, to verify the applicability of part 70 or applicable
requirements, and to compute a permit fee (as necessary).
Section 70.5(c) requires the application to describe emissions of
all regulated air pollutants for each emission unit.
In the July 10, 1995 White Paper, EPA indicated a
substantial degree of discretion for permitting authorities in
this area. It indicates that States may adopt different
approaches to meet the minimum program requirements established
by the part 70 regulations depending on local needs. In many
instances, a qualitative description of emissions, or sometimes
no description at all will satisfy this standard. However, the
applicant may need to provide more detailed information for
purposes other than determining applicability and to foster
efficiency in the permitting program. In addition, the
permitting authority has discretion to require other needed
information.
For the purpose of determining the applicability of part 70
or other specific requirements, the information required in an
application should be streamlined for the mutual benefit of the
applicant and the permitting authority. An applicant that
stipulates it is a major source subject to part 70 and to other
applicable requirements should not be required to provide any
additional information to verify those facts in its part 70
application. However, the applicant must provide sufficient
information to allow the permitting authority to impose the
applicable requirement. For example, for purposes of determining
applicability, this interpretation could relieve certain
applicants from the requirement to submit a comprehensive and
detailed emissions inventory and relieve the permitting authority
from the responsibility of reviewing such information. The
resulting application streamlining would not relieve the
applicant from submitting, or the permitting authority from
reviewing, emissions or other data for purposes other than
determining applicability.
In the case where there is no dispute that a stationary
source is subject to part 70, and the applicant stipulates that
the source is a part 70 source in the application, no further
information would be required for applicability determination.
An example would be a source which is currently operating under a
PSD permit because it is major for PM-10. Both the source and
the permitting authority agree that the source is subject to the
State's part 70 program.
A source may also streamline the part 70 permit process by
stipulating that specific applicable requirements apply. This
does not preclude the permitting authority from requesting
additional information, including information pertaining to the
applicability of requirements not covered in the stipulation.
For example, a stationary source may stipulate it is subject to a
SIP rule. However, the permitting authority may suspect that the
source is also subject to a New Source Performance Standard
(NSPS), but may need more information for confirmation. In this
case, the permitting authority would request additional
information related to the applicability of the NSPS.
Similarly, an applicant may stipulate that it is subject to
only portions of an applicable requirement and state that it is
not subject to other portions. In such case, the permitting
authority may request the applicant to provide additional
information to demonstrate that it is not subject to requirements
in question. However, if a source requests a permit shield,
additional information to demonstrate the non-applicability of
these requirements must be submitted.
E. Referencing of Existing Information in Part 70 Permit
Applications And Permits
1. Issue.
Can an applicant in its permit application, and can the
permit itself, reference existing information that is available
at the permitting authority? Also, can the permit application
and the permit reference applicable requirements through citation
rather than by a complete reprinting of the requirements
themselves in the part 70 permit application or permit?
2. Guidance.
a. General. Information that would be cited or cross
referenced in the permit application and incorporated by
reference into the issued permit must first be currently
applicable and available to the permitting authority and
public. The information need not be restated in the part 70
application. Standardized citation formats should be established
by the permitting authority to facilitate appropriate use of this
mechanism.
Referenced documents must also be specifically identified.
Citations, cross references, and incorporations by reference must
be detailed enough that the manner in which any referenced
material applies to a facility is clear and not subject to
interpretation. Where only a portion of the referenced document
applies, applications and permits must specify the relevant
section of the document. Any information cited, cross
referenced, or incorporated by reference must be accompanied by a
description or identification of the current activities,
requirements, or equipment for which the information is
referenced.
b. Permit Applications. The applicant and the permitting
authority should work together to determine the extent to which
part 70 permit applications may rely on existing information and
to use existing information to the maximum extent possible. To
facilitate referencing existing information, permitting
authorities should identify the general types of information
available for this purpose. To the extent that such information
exists and is readily available to the public, the following
types of information may be cited or cross referenced (as
appropriate):
o Rules, regulations, and published protocols.
o Criteria pollutant and Hazardous Air Pollutants emission
inventories and supporting calculations.
o Emission monitoring reports, compliance reports, and
source tests.
o Annual emissions statements.
o Process and abatement equipment lists and descriptions.
o Current permit terms and conditions.
o Permit application materials previously submitted.
o Permitting authority's engineering analyses.
o Other materials with the approval of the permitting
authority.
The existing operating and preconstruction permit(s) for a
facility may be used to provide information required by the
part 70 permit application and to develop a draft part 70 permit.
Applicants are obligated to correct and supplement
inaccurate or incomplete permitting authority records relied upon
for the purposes of part 70 permit applications. The responsible
official must certify, consistent with 70.5(d), to the truth,
accuracy, and completeness of all information referenced.
c. Permits. Incorporation by reference in permits may be
appropriate and useful under several circumstances. Appropriate
use of incorporation by reference in permits includes referencing
of test method procedures, inspection and maintenance plans, and
calculation methods for determining compliance. One of the key
objectives Congress hoped to achieve in creating title V,
however, was the issuance of comprehensive permits that clarify
how sources must comply with applicable requirements. Permitting
authorities should therefore balance the streamlining benefits
achieved through use of incorporation by reference with the need
to issue comprehensive, unambiguous permits useful to all
affected parties, including those engaged in field inspections.
Permitting authorities may, after listing all applicable
emissions limits for all applicable emissions units in the
part 70 permit, provide for referencing in permits to the extent
that (1) applicability issues and compliance obligations are
clear, and (2) the permit includes any additional terms and
conditions (beyond those incorporated by reference) sufficient to
assure compliance with all applicable requirements.
Where the cited applicable requirement provides for
different and independent compliance options (e.g., boilers
subject to a new source performance standard promulgated under
section 111 may comply by use of low sulfur fuel or through add-
on of a control device), the permitting authority generally
should require that the part 70 permit contain (or incorporate by
reference) the specific option(s) selected by the source.
Alternatively, the permit could incorporate by reference the
entire applicable requirement provided that: (1) such reference
is unambiguous in its applicability and requirements; (2) the
permit contains obligations to certify compliance and report
compliance monitoring data reflecting the chosen control
approach; and (3) the permitting authority determines that the
relevant purposes of title V would be met through such
referencing. The alternative approach would not be allowable if
changing from one compliance option to another would trigger the
need for a prior review by the permitting authority or EPA (e.g.
NSR), unless prior approval is incorporated into the part 70
permit (i.e., advance NSR).
The EPA does not recommend that permitting authorities
incorporate into part 70 permits certain other types of
information such as the part 70 permit application (See first EPA
White Paper).
3. Discussion.
Title V and part 70 do not define when citation or cross
referencing in permit applications would be appropriate, although
it obviously would not be allowed where such citations or cross
references would not support subsequent development of the
part 70 permit. The EPA's first White Paper states that a
permitting authority may streamline part 70 applications by
allowing the applicant to cross reference a variety of documents
including permits and Federal, State, and local rules. For
example, this guidance states that where an emissions estimate is
needed for part 70 purposes but is otherwise available (e.g.,
recent submittal of emissions inventory) the permitting authority
can allow the source to cross reference this information for
part 70 purposes.
Permitting authorities' files and databases often include
information submitted by the applicant which can also be required
by part 70. Development and review of part 70 permit
applications could be streamlined if information already held by
the permitting authority and the public is referenced or cited in
part 70 permit applications rather than restated in its entirety.
Similarly, specific citations to regulations that are unambiguous
in their applicability and requirements as they apply to a
particular source will reduce the burden associated with
application development.
Incorporation by reference can be similarly effective in
streamlining the content of part 70 permits. The EPA believes
that use of incorporation by reference can be an appropriate
tool. The potential benefits of permit development based on an
incorporation by reference approach include reduced cost and
administrative complexity, and continued compliance flexibility
as enforceably allowed by the underlying applicable requirements.
Expectations for referencing with respect to permit content
are somewhat better defined than for permit applications.
Section 504(a) states that each permit "shall include enforceable
emission limitations and standards" and "such other conditions as
are necessary to assure compliance with the applicable
requirements." In addition, section 504(c) requires each permit
to "set forth inspection, entry, monitoring, compliance
certification, and reporting requirements to assure compliance
with the permit terms and conditions. Analogous provisions are
contained in 70.6(a)(1) and (3). The EPA interprets these
provisions place limits on the type of information that may be
referenced in permits.
Accordingly, after all applicable emissions limits are
placed in the part 70 permit, the permitting authority may allow
referencing where it is specific enough to define how the
applicable requirement applies and where issuance of permits
using this approach assures compliance with all applicable
requirements. It is a desirable option where (1) it would be a
more efficient approach; (2) the referenced material is
unambiguous in how it applies to the permitted facility; and (3)
it provides for enforceability from a practical standpoint. On
the other hand, it is generally not acceptable to use a
combination of referencing certain provisions of an applicable
requirement while paraphrasing other provisions of that same
applicable requirement. Such a practice, particularly if coupled
with a permit shield, could create dual requirements and
potential confusion.
Even where the referenced requirement allows for compliance
options, the permitting authority may issue the permit with
incorporation of the applicable requirement provided that the
compliance options of the source are enforceably defined under
available control options, appropriate records are kept and
reports made, and any required revisions to update the permit
with respect to specific performance levels are made. This
treatment would be analogous to the flexibility provided to
sources through the use of alternative scenarios.
Attachment A
Approval of Alternative Test Methods
The part 63 general provisions, as well as other EPA air
regulations implementing sections 111 and 112 of the Act, allow
only EPA-approved test methods to implement emission standards
that are established by States to meet Federal requirements.
Accordingly, streamlining cannot result in any requirement
relying on a State-only test method unless and until EPA, or the
permitting authority acting as EPA's delegated agency, approves
it as an appropriate method for purposes of complying with that
streamlined standard. Currently, all States are delegated
authority to make decisions regarding minor revisions to EPA
approved test methods (i.e., minor changes are those that have
isolated consequences, affect a single source, and do not change
the basic emissions measurement result). The EPA is exploring
options for defining where delegation to States is appropriate
for reviewing major revisions or new test methods, and for
expediting the approval process where the Agency retains final
sign-off authority. The EPA recognizes that its approval must
generally occur in a timeframe consistent with the time
constraints of the part 70 permit issuance process. Until
further guidance on this subject is issued, States must obtain
EPA approval for all State-only test methods which represent
major changes or alternatives to EPA-approved test methods prior
to or within the 45-day EPA review period of the proposed permit
seeking to streamline requirements.
With respect to SIP requirements, the ability for a
permitting authority to authorize use of a different test method
depends on the governing language contained in the SIP. For
example, some SIPs expressly connect a test method with a
particular emissions limit but allow for the use of an equivalent
method. Other SIPs contain a more exclusive linkage between an
emissions limit and its required test method (i.e., limit A as
measured by test method B). The SIP-approved test method can be
changed only through a SIP revision unless the SIP contains
provisions for establishing alternative test methods. Attachment
B contains example SIP language which provides a mechanism that
can establish an alternative applicable requirement in such
cases.
Permitting authorities may implement streamlining which
involves alternative or new test methods within the flexibility
granted by the SIP and any delegation of authority granted by EPA
(where section 111/112 standards are involved). Permit
applications containing a request for a streamlined requirement
based on an alternative or new test method must, to be complete,
demonstrate that the alternative or new test method would measure
emissions equivalently to the otherwise applicable method. The
EPA expects to receive expeditiously (i.e., well in advance of
any draft permit issuance) those portions of an application
dealing with a proposal for streamlining, including any
demonstration of test method equivalency. Any required EPA
approval of an alternative or new test method need not be
obtained as a precondition for filing a complete application, but
it must be secured before the final part 70 permit can be issued.
As mentioned previously, EPA intends to structure its approval
process to comport reasonably with the timelines for part 70
permit issuance. Attachment B
SIP Provisions For Establishing Equivalent
Alternative Requirements
I. Overview
States may revise their SIPs to provide for establishing
equivalent alternatives to specific requirements set forth in the
SIP without the need for additional source-specific SIP
revisions. To allow equivalent alternatives to the otherwise-
applicable SIP requirements (i.e., emission limitations, test
methods, monitoring, and recordkeeping) the State would include
language in the federally approved SIP's to provide substantive
criteria governing the State's exercise of the alternative
requirement authority. The EPA believes this equivalency
procedure and criteria, once adopted by the State and approved by
EPA into the applicable SIP, satisfies applicable legal
requirements under title I of the Act.
II. Example Language For Part 70 Sources To Establish
Alternative Emissions Limitations, Test Methods, Monitoring, and
Recordkeeping
The following is an example of enabling language that could
be used to provide flexibility in the SIP for allowing
alternative requirements to be established for part 70 sources.
The State should use this information as guidance to draft
language for all requirements for which they want to allow
alternatives.
In lieu of the requirements imposed pursuant to
(reference to sections(s)), a facility owner may comply with
alternative requirements, provided the requirement is
approved by the Director [or permitting authority...] in the
part 70 permit issuance, renewal or significant permit
revision process, and is established consistent with the
streamlining policy set forth in White Paper Number 2. The
Director's [permit authority] determination of approval is
not binding on EPA.
For sources subject to an approved part 70 program, an
alternative limitation is approved for the source by EPA if
it is incorporated in an issued part 70 permit to which EPA
has not objected, subject to the conclusion of the process
for public petitions for EPA objections. Any public
comments submitted during the part 70 public comment period
concerning the alternative method shall be transmitted to
EPA no later than five working days after the end of the
public comment period.
Noncompliance with any provision established by this
rule constitutes a violation of this rule.
III. Requirements For Sources Not Subject To Part 70
A. SIP content
An acceptable SIP provision for establishing alternative
requirements for non-part 70 sources must contain:
1. An express requirement that the alternative measure must be
equivalent to the otherwise applicable SIP measure, including
clearly stated criteria and procedures for determining
equivalency.
Criteria in the SIP for determining equivalency are
necessary to allow for appropriate review by EPA and to
ensure that alternative measures meet all applicable Act
requirements, including consistency with reasonable further
progress (RFP) and attainment, as well as the requirement to
be enforceable, as required by section 110(a)(2)(A). The
EPA believes that alternative measures must be equivalent to
the SIP requirements in order for this procedure to be
consistent with the requirements of the Clean Air Act.
Absent this equivalency requirement, an alternative measure
could have the effect of relaxing a SIP measure, thereby
potentially interfering with the approved portions of a SIP
that concern attainment, maintenance and progress
requirements. Such a result clearly would constitute an
improper attempt to revise the SIP without undertaking the
procedures specified in section 110.
2. Public notice and an adequate opportunity for comment on a
proposed alternative measure as well as public notice of any
final approval of an alternative measure.
The EPA believes that in order to meet the requirements of
Title I of the Act a public notice and a 30-day opportunity
for public comment are required. Public notice and
opportunity for comment are necessary to enable interested
parties to examine prospective alternative measures and
present their views on whether the alternatives are in fact
equivalent and otherwise meet the requirements established
in the Clean Air Act and the SIP. Public notice of any
finally approved alternative measure is needed to inform the
public of the current operative requirements under the SIP.
3. Assurance that the alternative requirements do not interfere
with any other requirements of the Act.
SIP requirements should not interfere with other
requirements of the Act, for example the hazardous air
pollutant standards or the acid rain requirements.
Therefore, the State must ensure that any alternative
equivalent does not negatively impact other
requirements of the Act.
4. An opportunity for EPA review and approval or disapproval of
the alternative method.
For sources not subject to part 70, the SIP must be amended
to require a specific EPA review period: an EPA review
process similar to its review under part 70, or a 60-day EPA
review period, as suggested below.
B. Discussion
For sources not subject to an approved part 70 program,
States can revise/submit SIP rules authorizing implementation of
equivalent alternative requirements provided that the alternative
requirements meet the applicable criteria, to be included in the
SIP. Additionally, because there is not an independent review
mechanism for these sources the SIP must provide a review
procedure.
States may develop a review procedure that mirrors the part
70 review process. However, because non-part 70 sources do not
have the permit mechanism to serve as the vehicle for the review
the SIP must develop this process. The following is a suggested
structure:
The revised rule could require that the alternative
requirements and supporting documentation be submitted to EPA for
a 45-day review period. Upon receipt of the alternative, the
State will publish a public notice providing a 30-day public
comment period. States will have flexibility in determining how
this time is allotted for review but EPA suggests that the State
provide that 10 days of this EPA review period will follow the
public participation process. The EPA presumes that the in most
cases the State will want to make 30 days of EPA's review period
coincide with the 30-day public participation process. At the
end of EPA's review, it will notify the State/local district by
letter as to whether the alternative was approved or
disapproved. Until an alternative requirement is approved by
EPA, the otherwise applicable SIP provisions will continue to
apply. However, if EPA fails to act at the end of the review
period, the alternative requirement is determined to be approved
and can be implemented at this time. Once an alternative is
approved the State must incorporate that requirement into an
instrument enforceable under State law, as specified in the SIP.
Once every 6 months, EPA will publish a notice in the Federal
Register listing all final actions on proposed alternatives
occurring in the previous 6 months.
C. General Criteria for Evaluating Alternatives
The following is guidance for the States for developing the
general criteria that must be included as part of the SIP, in
addition to the enabling language. The State should use this
information to develop more source or source category specific
criteria to guide the review of alternatives when they are
submitted.
1. Applicability.
The unit(s) to which the requirements apply must be clearly
specified in the underlying SIP and in the
permit/alternative.
If percentage reductions are required from the source is the
baseline must be clearly set. The SIP must require the
submission of all the information necessary to establish the
baseline, and the alternative requirement must achieve the
reduction called for in the SIP.
2. Time.
The alternative must specify the effective date of the
alternative requirement.
The alternative must clearly specify any future-effective
dates or any compliance schedules that apply to the source
under regulations in effect at the time of issuance. For
instance, a source may be due to comply with requirements
promulgated before the permit/alternative was issued, but
which are effective prior to the expiration of the
permit/alternative.
3. Effect of changed conditions.
If alternative emission limitations or other requirements
are allowed in the underlying SIP, the associated
documentation with the changed conditions must clearly
demonstrate the alternative requirement is equivalent to the
original SIP requirement.
4. Standard of conduct.
The alternative proposal must clearly state what
requirements the source must meet. For example, the SIP
must specify the emission limit and what alternatives are
acceptable. The alternative proposal must contain
equivalent limits, averaging times, test methods, etc., and
the permit must include how this is no less stringent than
the underlying SIP requirements. The alternative proposal
must also show whether the it applies on a per-source or
per-line basis or is facility-wide.
5. Transfer Efficiency.
Any SIP allowing alternative emission limits and using
transfer efficiency in determining compliance must
explicitly state the circumstances under which a source may
use improved transfer efficiency as a substitute for meeting
the SIP limit. The improvement should be demonstrated
through testing and an appropriate baseline and test method
should be specified. See draft "Guidelines for determining
capture efficiencies" for criteria for evaluating
alternative capture efficiency requirements.
6. Averaging Time.
Both the SIP and the alternative proposal must explicitly
contain the averaging time associated with each emission
limit (e.g., instantaneous, three hour average, daily,
monthly or longer). The time must be sufficient to protect
the applicable national ambient air quality standards. The
alternative proposal must demonstrate that the averaging
time and the emission limit in the alternative are as
stringent as those in the original SIP requirements.
7. Monitoring and Recordkeeping.
The alternative proposal must state how the source will
monitor compliance with the emissions requirement, and
detail how the proposed method compares in accuracy,
precision, and timeliness to the SIP-approved method.
Records and monitoring data must be retained for at least
the same period of time as required by the SIP. The method
must enable compliance determinations consistent with the
averaging time of the emission standard.
8. Test Methods.
The alternative proposal must detail how the proposed test
method compares in stringency, accuracy, reliability,
reproducibility, and timeliness to the approved method. The
application or proposal must also address how the change
affects measurement sensitivity and representativeness,
describe the need for the change and indicate if the change
is need for unique conditions related only to the source in
question. The method must enable a compliance determination
consistent with the averaging time of the emission standard.
9. Act Requirements.
The alternative must meet the all applicable Act requirement
(e.g., for RACT, 15% VOC reduction, etc.) and must not
interfere with the SIP's attainment demonstration and RFP.
10. Production level.
The emissions are equivalent to SIP allowable emissions at
the same production level. Use of pre-1990
production/operation scenarios cannot be used as part of any
demonstration that the alternative requirements are as
stringent as those in the SIP. Also, the demonstration must
be performed using EPA approved test method.
D. Enabling SIP Language
1. Example Language For Alternative Emissions Limitations for
part 70 sources.
The following is an example of specific enabling language
that could be used to provide flexibility in the SIP for allowing
alternative emission limitation requirements. This example is
for an alternative sulfur dioxide limit, however the State may
make modifications to this language to provide flexibility for
other requirements and for other pollutants. Example language
for test method, monitoring and recordkeeping is included in a
subsequent example. The State should use this information as
guidance to draft complete language for all requirements for
which they want to allow alternatives.
In lieu of the requirements imposed pursuant to
[reference to sections(s)] a facility owner may comply with
alternative requirements, provided the requirement is
approved by the Director...] For purposes of a federally-
approved implementation plan, the alternative method will
apply only if (1) the State/local district submits the
alternative method to EPA along with supporting
documentation in the form of a State permit [or other
document specified in the SIP] (2) EPA approves the
alternative limitation as achieving the same or greater
reductions that the limit otherwise imposed under section
_______, as determined in accordance with guidelines
approved by EPA as a SIP revision. The Director's
determination of approval is not binding on EPA.
The EPA review period must include a 30-day public
notice and comment period, which may be provided either by
the State/local district so long as the public comments are
also directed to EPA, and provided that at least 15 days of
the EPA review period occur at the end of the public comment
period. An alternative requirement will be approved or
disapproved by EPA by letter. Alternative requirements may
not interfere with any other requirements of the Act.
Noncompliance with any provision established by this
rule constitutes a violation of this rule.
2. Example Language For Alternative Test Methods, Monitoring,
and Recordkeeping.
The VOC [other pollutant] content shall be determined by
using EPA Reference Method ___ or an alternative monitoring or
recordkeeping method may be preliminarily approved by the
Director. For purposes of a federally-approved implementation
plan, the alternative method will apply only if (1) the
State/local district submits the alternative [test, monitoring
and recordkeeping methods] to EPA along with supporting
documentation for review and (2) The alternative requirement
provides for monitoring of all variables and measures emissions
as necessary to determine compliance with a precision, accuracy
and timeliness comparable to the SIP-approved method. [For
monitoring - The alternative must be consistent with any
Compliance assessment monitoring requirements which may be
applicable.] Records, test and monitoring results must be
retained for a comparable period of time as the otherwise SIP-
approved requirement as determined in accordance with the
guidelines approved by EPA as a SIP revision. The Director's
determination of approval is not binding on EPA.
A 60-day EPA review period must include a 30-day public
notice and comment period, which may be provided either by the
State/local district so long as the public comments are also
directed to EPA, and provided that at least 15 days of the EPA
review period occur at the end of the public comment period. An
alternative method [requirement] will be approved or disapproved
by EPA by letter. The alternative requirements do not interfere
with any other requirements of the Act.
Noncompliance with any provision established by this rule
constitutes a violation of this rule.
For information regarding this white paper, please contact us at (202) 467-7878 or e-mail us at caain@envinfo.com.