March 5, 1996
MEMORANDUM
SUBJECT: White Paper Number 2 for Improved Implementation of The
Part 70 Operating Permits Program
FROM: Lydia N. Wegman, Deputy Director /s/
Office of Air Quality Planning and Standards (MD-10)
TO: Director, Office of Ecosystem Protection, Region I
Director, Environmental Planning and Protection
Division, Region II
Director, Air, Radiation and Toxics Division,
Region III
Director, Air, Pesticides and Toxics Management
Division, Region IV
Director, Air and Radiation Division, Region V
Director, Multimedia Planning and Permitting Division,
Region VI
Director, Air, RCRA and TSCA Division, Region VII
Assistant Regional Administrator, Office of Pollution
Prevention, State and Tribal Assistance, Region VIII
Director, Air and Toxics Division, Region IX
Director, Office of Air, Region X
Please find attached White Paper Number 2 for improved
implementation of part 70 operating permits programs. This
guidance is intended to enable State and local agencies to take
further steps to reduce the complexity and preparation costs of
part 70 permit applications and of the part 70 permits
themselves. It is intended to supplement, not obviate, the
guidance provided in EPA's "White Paper for Streamlined
Development of part 70 Permit Applications" (July 10, 1995).
This guidance is consistent with and furthers the goals of the
Presidential initiatives to streamline and reinvent government.
The attached guidance is divided into five sections as
follows:
II. A. Streamlining Multiple Applicable Requirements On The
Same Emissions Unit(s).
II. B. Development Of Applications And Permits For Outdated
SIP Requirements.
II. C. Treatment Of Insignificant Emissions Units.
II. D. Use Of Major Source And Applicable Requirement
Stipulation.
II. E. Referencing Of Existing Information In Part 70
Permit Applications And Permits.
Streamlining will lead to substantial reductions in
permitting burdens and improved part 70 implementation 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 (which can be
an alternative to all those requirements being subsumed). 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 in the
permit. Any such streamlining must provide that compliance with
the streamlined limit would assure compliance with all applicable
requirements. In addition, substantial reductions in burden are
expected to result from the reduced confusion and cost where
locally adopted rules differ from the EPA-approved State
implementation plan, the streamlined treatment of insignificant
emissions units, the use of stipulations by sources as to which
regulations apply, and the cross referencing rather than
repetition of certain existing information.
There is an immediate need for the implementation of this
guidance. A large number of sources have filed complete part 70
applications, and increasing numbers of these submittals are
being processed for permit issuance. I strongly encourage you to
work with your States to effect near-term use of this guidance.
Substantial contributions to this White Paper have come from
the California Title V Implementation Working Group. I want to
thank you and your staff for your support and Region IX in
particular for their leadership and considerable efforts in
developing and completing this paper. I invite your suggestions
on what additional guidance is needed to improve further the
initial implementation of title V. If you should have any
questions regarding the attached guidance, please contact Michael
Trutna at (919) 541-5345, Ginger Vagenas of Region IX at (415)
744-1252, or Roger Powell at (919) 541-5331.
Attachment
cc: M. Trutna (MD-12)
G. Vagenas (Region IX)
R. Powell (MD-12)
A. Schwartz (2344)
WHITE PAPER NUMBER 2 FOR IMPROVED IMPLEMENTATION
OF THE PART 70 OPERATING PERMITS PROGRAM
U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF AIR QUALITY PLANNING AND STANDARDS
March 5, 1996
Contacts: Michael A. Trutna (919) 541-5345
Ginger Vagenas (415) 744-1252
Roger Powell (919) 541-5331
WHITE PAPER NUMBER 2 FOR IMPROVED IMPLEMENTATION
OF THE PART 70 OPERATING PERMITS PROGRAM
March 5, 1996
I. OVERVIEW.
This guidance is intended to enable State and local agencies
to take further steps to reduce the complexity and preparation
costs of part 70 permit applications and of the part 70 permits
themselves and to remove unintended barriers and administrative
costs. It is also intended to build on and expand the guidance
provided in the Environmental Protection Agency's (EPA) "White
Paper for Streamlined Development of Part 70 Permit Applications"
(July 10, 1995). White Paper Number 2 supplements, not obviates,
the first White Paper. Both papers should be consulted for
guidance in improving the implementation of title V of the Clean
Air Act (Act) (i.e., part 70 operating permits programs). In
particular, White Paper Number 2 is designed to simplify the
treatment of overlapping regulatory requirements and
insignificant emissions units and to clarify the use of citations
and incorporation by reference in the part 70 permitting process.
This effort is consistent with and furthers the goals of the
Presidential initiatives to streamline and reinvent government.
Substantial contributions to this White Paper have come
from the California Title V Implementation Working Group (Working
Group). The California Air Resources Board and several
California air districts and industries which (together with EPA)
make up the Working Group have decades of experience with
operating permits. These operating permits programs are
generally just one component of air programs that, in many
districts, also include local emissions standards (often with
associated recordkeeping and reporting requirements), monitoring
requirements, inspections, source testing, and new source review
(NSR). 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 available for use nationwide.
This guidance is divided into five sections and two
attachments which are generally summarized as follows (the reader
is, however, referred to the applicable main sections of the
guidance for more detailed information):
Section II. A. Streamlining Multiple Applicable
Requirements On The Same Emissions Unit(s).
The EPA and States have developed different and often
overlapping applicable requirements governing the same
emissions units to serve the purposes of different air
programs. As a result, emissions units at a stationary
source may be subject to several parallel sets of
requirements. This can result in some of the requirements
being redundant and unnecessary as a practical matter, even
though the requirements still legally apply to the source.
In cases where compliance with a single set of requirements
effectively assures compliance with all requirements,
compliance with all elements of each of the overlapping
requirements may be unnecessary and could needlessly consume
resources. For example, a source could be subject to
overlapping standards that result in two or more different
emissions limits for the same pollutant and two or more
source monitoring requirements for instrumentation,
recordkeeping, and reporting.
Today's guidance describes how a source may propose
streamlining to distill or "streamline" multiple overlapping
requirements into one set that will assure compliance with
all requirements. According to the guidance, multiple
emissions limits may be streamlined into one limit if that
limit is at least as stringent as the most stringent limit.
(Limitations that apply to the streamlining of acid rain
requirements are described in the main section of this
guidance.) If no one requirement is unambiguously more
stringent than the others, the applicant may synthesize the
conditions of all the applicable requirements into a single
new permit term that will assure compliance with all
requirements. The streamlined monitoring, recordkeeping,
and reporting requirements would generally be those
associated with the most stringent emissions limit,
providing they would assure compliance to the same extent as
any subsumed monitoring. Thus, monitoring, recordkeeping,
or reporting to determine compliance with subsumed limits
would not be required where the source implements the
streamlined approach.
It is important to emphasize that while streamlining
may be initiated by either the applicant or the permitting
authority, it can only be implemented where the permit
applicant consents to its use.
Section II. B. Development Of Applications And Permits For
Outdated SIP Requirements.
Historically, long periods of time have been required
to review and approve (or disapprove) SIP revisions. The
EPA has undertaken a number of reforms to its SIP approval
process and is continuing to make significant progress in
reducing the amount of time required for taking action on
SIP revisions. Despite the progress we have made to date,
there are many local rules now pending EPA review and
approval for inclusion in the SIP. The gap between the
approved SIP and the State rules is of concern because
States and local agencies enforce their current rules (which
are usually more stringent than the approved SIP rules) and
often, as a practical matter, no longer enforce the
superseded and outdated rules in the SIP. On the other
hand, EPA only recognizes and can only enforce the SIP-
approved rules. This situation can cause confusion and
uncertainty because some sources are effectively subject to
two different versions of the same rules. Part 70's
application, certification, and permit content requirements
highlight this longstanding concern.
The most problematic situation arising from the gap
between the approved SIP and the State rules is where a
technology-forcing rule that has been approved into the SIP
is found by the State to be impossible to meet. Under these
circumstances, the State would generally adopt a relaxation
of this rule and submit it to EPA as a SIP revision. Until
EPA is able to take action on the submitted relaxation,
sources remain subject to a rule that is impossible to meet.
This section of the guidance largely addresses the
problem by authorizing permitting authorities and their
sources to base permit applications on State and local rules
that have been submitted for SIP approval, rather than on
the potentially obsolete approved SIP provisions that they
would replace. Such reliance on pending State and local
rules is proper when the permitting authority has concluded
that the pending rule will probably be approved, or when the
source believes it can show that the pending rule is more
stringent than the rule it would replace. However, if the
pending rule is not more stringent than the rule it would
replace, the permit cannot be issued until the pending rule
is approved.
Section II. C. Treatment Of Insignificant Emissions Units.
This section provides for the streamlined treatment of
generally applicable requirements that apply to
"insignificant" emissions units (IEU's). It is intended to
address current concerns that resources will be
unnecessarily consumed by matters of trivial environmental
importance.
The guidance clarifies that the permitting authority
has broad discretion to tailor the permit application and
permit for small equipment and activities as long as
compliance with Federal requirements is assured. For both
the permit application and the permit, information on IEU's
may be generically grouped and listed without emissions
estimates, unless emissions estimates are needed for another
purpose such as determining the amount of permit fees that
are calculated using total source emissions. This approach
would utilize standard permit conditions with minimal or no
reference to any specific emissions unit or activity,
provided that the scope of the requirement and its
enforcement are clear.
The EPA also believes that for IEU's, a responsible
official's initial compliance certification may be based on
available information and the latest cycle of required
information.
The guidance further provides that the permitting
authority can use broad discretion in determining the nature
of any required periodic monitoring. The EPA's policy on
IEU's is based on the belief that these emissions points are
typically associated with inconsequential environmental
impacts.
Section II. D. Use Of Major Source And Applicable
Requirement Stipulation.
There have been concerns expressed that extensive new
emissions data would be needed to verify major source status
or the applicability of Federal requirements. White Paper
Number 2 clarifies that for applicability purposes, a source
familiar to the permitting authority may simply stipulate in
its application that it is major or that Federal
requirements apply as specified in the application. The
paper clarifies that there is no need to prepare and submit
extensive information about the source that "proves" it is
subject to any requirements that it stipulates are
applicable. This does not affect the requirement to provide
information that is otherwise required by part 70.
Section II. E. Referencing Of Existing Information In
Part 70 Permit Applications And Permits.
Concerns have been raised that a source must re-prepare
and resubmit information that is readily available, or that
the permitting authority already has, to complete part 70
permit applications. In addition, similar concerns have
been voiced regarding the large and potentially unnecessary
burden of developing permits which repeat rather than
reference certain types of regulatory requirements that
apply to the source (e.g., monitoring and testing
protocols). The guidance clarifies that, in general, the
permitting authority may allow information to be cited or
cross-referenced in both permits and applications if the
information is current and readily available to the
permitting agency and to the public. The citations and
references must be clear and unambiguous and be enforceable
from a practical standpoint. After permits specify which
emissions limits apply to identified emissions units, cross-
referencing can be authorized for other requirements (e.g.,
monitoring, recordkeeping, and reporting).
Attachment A provides guidance on using the part 70 permit
process to establish alternative test methods, while Attachment B
provides example SIP language that could be used by both part 70
and non-part 70 sources to establish 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. [Note that Sections III. and beyond in
Attachment B are currently in draft form.]
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 lower current burden levels by
allowing various monitoring, recordkeeping, and reporting
requirements that are not critical to assuring compliance with
the streamlined (most stringent) limit to be subsumed in the
permit. In addition, substantial reductions in burden are
expected to result from the reduced confusion and cost where
locally adopted rules differ from the EPA-approved SIP, the
streamlined treatment of insignificant emissions units, and the
use of stipulations and the cross-referencing rather than
repetition of certain existing information in part 70
applications and permits.
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. The
Agency also suggests the permitting authority develop information
about permits issued with successful streamlining and make it
available to other similar sources to help avoid repetitive
costs.
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 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 emissions
point or group of emissions 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 where
there is sufficient source compliance information on which to
base such a certification.
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 prior to the issuance of a draft permit. 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. Any streamlining demonstration must be promptly
submitted to EPA upon its availability and in advance of draft
permit issuance unless EPA has previously agreed with the
permitting authority not to require it (e.g., the proposed
streamlining is of a simple and/or familiar type with no new
concerns).
In addition, general permits could be useful to allow the
transfer of streamlined requirements from the first source to be
covered by them 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 or portions of sources. If a general permit were used,
EPA and public review beyond that needed to issue the general
permit would not be necessary when sources subsequently applied
for the streamlined permit conditions established under the
general permit. Even where a general permit is not issued, the
availability of information obtained from the streamlining of one
source may be useful as a model for future streamlining actions
involving other similar sources.
Streamlined permit terms should be covered by a permit
shield. 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 section
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 emissions unit must be determined taking into
account,:
o Emissions limitation formats (emissions 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.
Limitations for specific pollutants can be subsumed by
limitations on classes of pollutants providing the applicant can
show that the streamlined limit will regulate the same set of
pollutants to the same extent as the underlying applicable
requirements. For example, a volatile organic compound (VOC)
limitation could effectively subsume an organic hazardous air
pollutant (HAP) limitation for a constituent such as hexane,
provided the VOC limit is at least as stringent as the hexane
limitation. Where a single VOC limit subsumes multiple HAP
limits, the permit must be written to assure that each of the
subsumed limits will not be exceeded. However, a limit for a
single or limited number of compounds cannot be used to subsume a
limit for a broader class (e.g., a hexane limit for a VOC limit)
because this would effectively deregulate any of the class that
are not covered by the more limited group.
b. Work practice requirements must be treated as follows:
o Supporting An Emissions Limit. A work practice
requirement directly supporting an emissions limit
(i.e., applying to the same emissions point(s) covered
by the emissions limit) is considered inseparable from
the emissions limit for the purposes of streamlining
emissions limits. The proposed streamlined emissions
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 Not Supporting An Emissions Limit. Similar work
practice requirements which apply to the same emissions
or emissions point but which do not directly support an
emissions limit may be streamlined (e.g., different
leak detection and repair (LDAR) programs). The
streamlined work practice requirement may be composed
of provisions/elements (e.g., frequency of inspection,
recordkeeping) from one or more of the similar work
practice requirements, provided that the resulting
composite work practice requirement has the same base
elements/provisions as the subsumed work practice
requirements (e.g. has a frequency of inspection or has
recordkeeping if the subsumed work practice
requirements have these elements/provisions).
Multiple work practice requirements which apply to
different emissions or emissions points 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 emissions 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 emissions limit
that is at least as stringent as any applicable
requirement;
o Use a previously "State-only" requirement as the
streamlined requirement when it is at least as
stringent as any applicable Federal requirement it
would subsume (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 7) 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 a
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 include citations to any
subsumed requirements in the permit's specification of the
origin and authority of permit conditions. In addition, the
part 70 permit must include 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.
Streamlining may be accomplished through an applicant
proposing to streamline multiple requirements applicable to a
source, the permitting authority developing streamlining options
for sources or source categories that would be subsequently
accepted at the election of permittees, or the applicant working
in agreement with the permitting authority after filing an
initial complete application. The first six of the following
actions wuld be taken by the source or, as appropriate, by the
permitting authority. The level of effort to complete these
actions will depend on the relative complexity of the
streamlining situation. The permitting authority would then
perform steps seven and eight.
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 emissions and/or work practice
standards, and monitoring and compliance demonstration
provisions.
Step Two - Determine the most stringent emissions and/or
performance standard (or any hybrid or alternative limits as
appropriate) consistent with the above streamlining
principles and provide the documentation relied upon to make
this determination. This process should be repeated for
each emissions unit pollutant combination 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 emissions limitations and/or standards,
appropriate monitoring and its associated recordkeeping and
reporting (see section II.A.2.e.), and such other conditions
as are necessary to assure compliance with all applicable
requirements.
Step Four - Certify compliance (applicant only) 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 to make this point clear.
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 becomes operative.
Step Six - Indicate in the application submittal that
streamlining of the listed applicable requirements under a
permit shield (where available) is being proposed and
propose the establishment of a permit shield which would
state 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 application.
Step Seven - Evaluate the adequacy of the proposal and its
supporting documentation. The 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 before issuance of a draft permit for public
review. 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 - Note the use of this process in any required
transmittal of a part 70 application, application summary,
or revised application to EPA and include the streamlining
demonstration and supporting documentation in the public
record. When the source is required to provide a copy of
the application (or summary) directly to EPA, it must note
the proposed use of streamlining. A copy of the
streamlining demonstration must be submitted promptly to EPA
along with the required copy of the application or
application summary (where a summary may be submitted to EPA
in lieu of the entire part 70 permit application) unless EPA
has previously agreed with the permitting authority not to
require it (e.g., the proposed streamlining is of a simple
and/or familiar type with no new concerns).
4. Enforcement.
All terms and conditions of a part 70 permit are enforceable
by EPA and citizens, unless certain terms are designated as being
only State (or locally) enforceable. In addition, a source
violating a streamlined emissions limitation in the part 70
permit may be subject to enforcement action for violation of one
(or more) of the subsumed applicable emissions limits to the
extent that a violation of the subsumed emissions limit(s) is
documented.
Upon receiving a part 70 permit, a source implementing the
streamlined approach would not be subject to an EPA enforcement
action for any failure to meet monitoring, recordkeeping, and
reporting requirements that are 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, provided that the source attempts in
good faith to implement the monitoring, recordkeeping, and
reporting requirements specified in the permit.
If subsequently 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 affect the same
pollutant or performance parameter for a particular emissions
unit. Likewise, the requirements of federally-enforceable terms
and conditions in preconstruction or operating permits may
overlap with the requirements of other federally-enforceable
rules and regulations.
In these instances, a source may be in compliance with the
overall emissions limit of each of the applicable requirements,
but be 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, even though one monitor can
effectively assure compliance with both emissions limits.
Furthermore, the recordkeeping and reporting associated with the
unnecessary instrumentation may create 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 allow use by
the permit applicant of the part 70 permit issuance process to
streamline multiple applicable requirements to the extent the
conditions of this policy can be met. In this way, the part 70
process with its procedural safeguards can be used to focus all
concerned parties on providing for compliance with a single set
of permit terms that assure compliance with multiple applicable
requirements instead of maintaining the costs of multiple sets of
controls, monitoring, recordkeeping, and reporting approaches.
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.
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).
Although language in 70.6(a)(3) may appear to restrict
streamlining by requiring that all "applicable" monitoring,
recordkeeping, and reporting requirements be placed in the
permit, EPA did 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 SIP's 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 (currently in draft
form) which would allow similar flexibility for non-part 70
sources.
With respect to 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 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 maximum achievable control
technology (MACT) standard by virtue of its commitment to replace
the Federal section 112 emissions standard with the State's own
standard or program during the part 70 permit issuance process
and using the procedures established in the Subpart E rule at
63.94.. In 63.94, 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, after a State accepts
delegation under 63.94, any change to the Federal rule results
in permit 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 emissions 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 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, after receiving 63.94
delegation, seeks to replace a Federal section 112 emissions
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 63.94 and, except where
contradictory, the criteria of this guidance. However, because
most States are planning to take straight delegation of Federal
emissions 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
63.93 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,
EPA intends to revise the rule within the parameters 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.
If a permit shield is not available, a permittee can still
be afforded significant enforcement protection by an explicit
agency finding that in its judgment the streamlined permit term
indeed provides for full compliance with all the permit limits
that is subsumes. In such a case, 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 be deemed
compliance with the listed 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 first White Paper (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 sizable 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, the permitting authority may
allow that application completeness initially be based on locally
adopted rules including those which would relax current (i.e.,
federally-approved) SIP requirements, provided that (1) the local
rule has been submitted to EPA as a SIP revision, and (2) the
permitting authority reasonably believes that the local rule (not
the current SIP rule) will be the basis for the part 70 permit.
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
emissions 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 would not necessarily ensure that the proposed revision
would ultimately be approved by EPA, nor would it protect a
source from enforcement of the approved SIP. Further, such a
finding would 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 (e.g., measure
is more stringent than the current SIP but fails to meet SIP
requirements for reasonably available control technology and/or
to make reasonable further progress), 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 EPA
approval of the rule. This is because a permit based on the
relaxed requirements of the local rule could not 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
sources in that source category. Here again the permitting
authority could allow initial application completeness to be
determined relying on the locally adopted rule, but the permit
could not be issued without the current SIP requirements unless a
source opted to demonstrate that the submitted rule represents,
for that specific 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, since 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 by 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 or are relaxations of
the currently approved SIP, and will target them for expeditious
processing. These rules will be identified within a specified
timeframe, generally within 1 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 Region IX's formal agreements, 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 revisions. 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. Such changes would be made 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.
This result is also consistent with the flexibility contained in
70.2 (see definition of "Part 70 permit") for the permitting
authority to issue multiple permits to one part 70 source if it
makes sense to do so. Alternatively, the permitting authority
could issue the permit in its entirety based on the current SIP.
The EPA agrees that delays in permit issuance described
above will not be cause for an EPA finding of failure by the
permitting authority to adequately administer or enforce its
part 70 program. Any initial permit issued under a phased
approach (i.e., the first phase involves all emissions units
unaffected by the SIP backlog targeted by EPA), however, does not
shield the source from the enforceability of the requirements
excluded in the first phase permit and the obligation to obtain
permit conditions covering the excluded emissions units 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 with respect to pending SIP rules
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. In some situations it may be
appropriate on a continuing basis 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.
For post application submittal, 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
scheduled later in the transition period for initial permit
issuance. For example:
o A local rule previously relied upon may be amended by the
State or district.
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.
For post permit issuance, sources may also encounter changes
to rule situations after initial permit issuance that could lead
them to request a permit revision. For example, 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 the current part 70 to accomplish this change.
Note that EPA in its revisions to part 70 may authorize
permitting authorities to use a less extensive permit revision
process.
To initiate the permit revision, the source must file an
application to revise the permit to 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 section 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. The EPA encourages permitting authorities currently
without provisions for incorporating permit shields to add them
at their first opportunity.
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 and/or the permitting authority:
The first course 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, (2)
are otherwise authorized by the permitting authority based on its
judgement that such rules will likely be the basis for the
part 70 permit (e.g. EPA approval of the rule is imminent), or
(3) have been specifically identified in a formal agreement
between the permitting authority and EPA for expeditious SIP
processing, i.e., the "targeted backlog." Rules listed in a
formal agreement 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 any of these criteria.
In preparing initial part 70 permit applications with
respect to such local rules the applicant:
Step One - Will indicate in its application that it has
opted for this 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 - Will identify in the permit application the
current SIP requirements that the pending SIP revision would
replace.
Step Three - May choose to certify compliance with the
requirement(s) of the pending 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 provide that such a
certification would meet the requirements of 70.5(c)(10).)
Step Four - 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.
The second course of action would be appropriate where the
criteria specified above have not been met for a particular rule
and an applicant still wants to base its initial part 70
application on such local rules pending SIP approval. In this
instance, the process would be essentially the same but the
source would have to demonstrate 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.) and submit it with the
permit application in step one. 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.
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 above
in section II.B.3.a. The note would be placed in the application
summary, the application, or the revised application. Copies of
the application summary, the application, or the revised
application containing such proposals must be submitted promptly
to EPA (unless EPA has agreed that the demonstration is of a type
not required for advance submittal to EPA).
Where the rule is listed by 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
section II.A.2., the permitting authority may proceed to issue
the permit 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.
If an applicant chooses to demonstrate that a local rule
assures compliance with the applicable SIP 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 permitting authority or EPA are not satisfied 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 rule. All
required application updates must be submitted on or before the
reasonable deadline required by the permitting authority for the
source to maintain its 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 a Region IX type
formal agreement, which targets certain SIP rules for expeditious
processing, until EPA has acted on the relevant rule(s).
Alternatively, comprehensive permits may be issued to such a
source prior to the time that EPA has acted on the rule provided
that they are 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 emissions limitation in the part 70 permit is also
subject to enforcement action for violation of the current SIP
emissions limits if a violation of this limit can be documented.
Upon issuance of 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 EPA 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. These requirements would no longer be
independently enforceable, provided the source attempts in good
faith to implement the monitoring, recordkeeping, and reporting
approach required under the local rule.
If subsequently the permitting authority or EPA determines
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 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 national ambient air quality standards (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 permit
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 to the basis for adopting a streamlined emissions
limit to replace multiple applicable requirements (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.
1. Issue.
How must sources address insignificant emissions units
(IEU's) subject to at least one applicable requirement?
(Insignificant emissions units 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 or facility-wide
requirements that apply to all emissions units.) 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 generally 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 requirements 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, as it related to IEU's
subject to generally applicable requirements, can normally be
addressed by standard or generic permit conditions with minimal
or no reference to any specific emissions unit or activity. The
EPA has reviewed and acquiesced in the issuance of permits
wherein generally applicable requirements are incorporated
through the use of tables describing a tiered compliance regime
for these requirements as they affect different sizes of
emissions units, including a distinct and more streamlined
compliance regime for IEU's. 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 generally applicable 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,
and as is true for any applicable requirement, the initial
certification can be based on only the latest cycle of required
information (e.g., a source could generally rely on a
demonstration of compliance resulting from the most recent
required monitoring, notwithstanding the existence of prior
monitoring indicating non-compliance at a previous point in
time). Where an applicable requirement (generally applicable or
otherwise) 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. The EPA interprets 70.5(c)(9) to allow for
a certification of compliance where there is no required
monitoring and, despite a "reasonable inquiry" to uncover other
existing information, the responsible official has no information
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, generally 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. As noted above, different generic permit provisions may
be necessary to cover the situation for which different types of
IEU's 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 regimen of required periodic testing or monitoring.
The EPA believes that the permitting authority in general
has broad discretion in determining the nature of any required
periodic monitoring. The need for this discretion is
particularly evident in the case of generally 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
emissions units and applicable requirement situations. It does
not require extensive testing or monitoring to assure compliance
with the applicable requirements for emissions units that do not
have significant potential to violate emissions limitations or
other requirements under normal operating conditions. In
particular, where the establishment of a regular program of
monitoring would not significantly enhance the ability of the
permit to assure compliance with the applicable requirement, the
permitting authority can provide that the status quo (i.e., no
monitoring) will meet 70.6(a)(3)(i). For IEU's subject to a
generally 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, generally
applicable requirements typically reside in the SIP. Permitting
authorities therefore not only have the best sense of which
requirements qualify as generally applicable, 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. This
certification will be based on available information, including
monitoring and/or other compliance terms required in the permit.
Where a particular emissions unit presents little or no potential
for violation of a certain applicable requirement, the
"reasonable inquiry" required by title V can be abbreviated.
Since it can be determined in the abstract that violation of the
requirement by these emissions units is highly improbable, it is
reasonable in that instance to limit the search for information
to what is readily available. As noted above, EPA believes that
an IEU subject to a generally applicable requirement typically
presents little or no potential for violation of those
requirements. It follows that where, for instance, a permit does
not require monitoring for IEU's subject to a generally
applicable requirement, and there were no observed, documented,
or known instances of non-compliance, an annual certification of
compliance is presumptively appropriate. Similarly, where
monitoring is required, an annual certification of compliance is
also appropriate when no violations are monitored and there were
no observed, documented, or known instances of non-compliance.
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 the
applicability of the generic requirements to IEU's, response 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 in part 70
permits the relatively trivial portion of emissions attributable
to IEU's will consume a disproportionate share 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 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
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, provided that
(1) the permitting authority has had previous review experience
with a particular source (e.g., issued it a permit), or (2)
otherwise has an adequate level of familiarity with the source's
operation (e.g., current emissions inventory information). 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).
Accordingly, permitting authorities 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 and an
explanation must be provided for this conclusion.
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 emissions unit.
In the first 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 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.
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. In addition, the resulting application
streamlining would not relieve the applicant from submitting, or
the permitting authority from reviewing, emissions or other data
for part 70 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
prevention of significant deterioration 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 relieve the source of its obligation to identify all
applicable requirements or 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.
Descriptive information such as the title or number of the
document and the date of the document must be included so that
there is no ambiguity as to which version of which document is
being referenced. 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 is not reasonably subject to misinterpretation. 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 cross reference agency-issued
rules, regulations, permits, and published protocols, and
existing information generated by the applicant. 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 allowed by the
permitting authority):
o Rules, regulations, and published protocols.
o Criteria pollutant and HAP 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 operating and preconstruction permit terms.
o Permit application materials previously submitted.
o Other materials with the approval of the permitting
authority.
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 the details of those
limits, rather than reprinting them in permits to the extent that
(1) applicability issues and compliance obligations are clear,
and (2) the permit includes any additional terms and conditions
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 an NSPS 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
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. This
guidance further provides 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 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
emissions 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 to place limits on the type of information that may be
referenced in permits. Although this material may be
incorporated into the permit by reference, that may only be done
to the extent that its manner of application is clear.
Accordingly, after all applicable emissions limits are
placed in the part 70 permit and attached to the emissions unit
to which they apply, the permitting authority may allow
referencing where it is specific enough to define how the
applicable requirement applies and where using this approach
assures compliance with all applicable requirements. This
approach is a desirable option where the referenced material is
unambiguous in how it applies to the permitted facility, and 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 emissions 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 may be 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 affect
the stringency of the emissions limitation or standard). 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 SIP's expressly connect a test method with a
particular emissions limit but allow for the use of an equally
stringent method. Other SIP's 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 without the need for a source-specific
SIP revision.
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
determine compliance at the same or higher stringency as 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 adequacy. 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
Alternative Requirements
I. Overview.
States may revise their SIP's to provide for establishing
equally stringent alternatives to specific requirements set forth
in the SIP without the need for additional source-specific SIP
revisions. To allow alternatives to the otherwise-applicable SIP
requirements (i.e., emissions limitations, test methods,
monitoring, and recordkeeping) the State would include language
in SIP's to provide substantive criteria governing the State's
exercise of the alternative requirement authority.
II. Example Language For Part 70 Sources To Establish
Alternative SIP Requirements.
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.
In lieu of the requirements imposed pursuant to
(reference specific applicable sections(s) or range of
sections to be covered), a facility owner may comply with
alternative requirements, provided the requirements are
established pursuant to the part 70 permit issuance,
renewal, or significant permit revision process and are
consistent with the streamlining procedures and guidelines
set forth in section II.A. of White Paper Number 2.
For sources subject to an approved part 70 program, an
alternative requirement is approved for the source by EPA if
it is incorporated in an issued part 70 permit to which EPA
has not objected. Where the public comment period precedes
the EPA review period, any public comments concerning the
alternative shall be transmitted to EPA with the proposed
permit. If the EPA and public comment periods run
concurrently, public comments shall be transmitted to EPA no
later than 5 working days after the end of the public
comment period. The Director's [permitting authority's]
determination of approval is not binding on EPA.
Noncompliance with any provision established by this
rule constitutes a violation of this rule.
III. Example Language For Non-Part 70 Sources To Establish
Alternative SIP Requirements.
[NOTE: This section is a draft that EPA expects to finalize
after appropriate revisions in the near future.]
For sources not subject to an approved part 70 program, the
following is an example of enabling language that States may use
to revise/submit SIP rules which would provide flexibility in the
SIP for allowing alternative requirements to be established.
A. Procedures.
1. General. In lieu of the requirements imposed pursuant
to [reference applicable sections] of this plan, a source
owner may comply with an alternative requirement, provided
that the Director approves it consistent with the procedures
of this paragraph and the criteria of paragraph B.
2. State Review Procedure. The Director may establish an
alternative requirement in [a review process defined by the
State], provided that the requirements of this paragraph are
met for EPA and public review and for notification and
access are met. The Director's determination of approval is
not binding on EPA.
3. Public Review. The Director shall subject any proposed
alternative to adequate public review but may vary the
procedures for, and the timing of, public review in light of
the environmental significance of the action. For the
following types of changes [add list of de minimis actions
subject to EPA review], no public review shall be necessary
for the approval of the alternative.
4. EPA Review. The Director shall submit any proposed
alternative to the Administrator through the appropriate
Regional Office, except for the following types of changes
[add list of de minimis actions subject to EPA review] no
EPA review shall be necessary for the approval of the
alternative. Until the specific alternative SIP requirement
has completed EPA review, the otherwise applicable SIP
provisions will continue to apply.
5. Periodic Notification And Public Access. For all
actions taken by the State to establish an alternative
requirement, the Director shall provide in a general manner
for periodic notification to the public on at least a
quarterly basis and for public access to the records
regarding established alternatives and relevant supporting
documentation.
6. Enforcement. Noncompliance with any alternative
established by this provision constitutes a violation of
this rule. The EPA and the public may challenge such an
alternative limit on the basis that it does not meet the
criteria contained in the SIP for establishing such an
alternative. In addition, EPA and the public can take
enforcement action against a source that fails to comply
with an applicable alternative requirement.
B. General Criteria for Evaluating Alternatives.
1. Applicability. The unit(s) to which the requirements
apply must be specified in the underlying SIP and in the
permit/alternative. If percentage reductions are required
from the source, 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 underlying requirement
of the SIP shall remain in effect until the effective date
of the alternative. 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 emissions
limitations or other requirements are allowed in the
underlying SIP, the associated documentation with the
changed conditions must clearly demonstrate the alternative
requirement is no less stringent than 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 emissions limit and what
alternatives are acceptable. The alternative proposal must
contain limits, averaging times, test methods, etc., that
are no less stringent and must address how they are no less
stringent than the underlying SIP requirements. The
alternative proposal must also show whether it applies on a
per-source or per-line basis or is facility-wide.
5. Transfer Efficiency. Any SIP allowing alternative
emissions 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 emissions limit (e.g., instantaneous,
three hour average, daily, monthly, or longer). The time
must be sufficient to protect the applicable NAAQS. The
alternative proposal must demonstrate that the averaging
time and the emissions 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 emissions
standard.
8. Test Methods. The alternative proposal must detail how
the proposed test method in association with its particular
emissions requirement (or rule) is at least as stringent as
the approved method in association with its emissions limit
(or rule) considering the accuracy, reliability,
reproducibility, and timeliness of each test method taken in
combination with its emissions limit. 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 needed
for unique conditions related only to the source in
question. The method must enable a compliance determination
consistent with the averaging time of the emissions standard
associated with it.
9. Act Requirements. The alternative must meet the all
applicable Act requirements (e.g., for reasonably available
control technology, 15% VOC reduction, etc.) and must not
interfere with any requirements of the Act, including any
regarding the SIP's attainment demonstration and
requirements for reasonable further progress.
10. Production Level. The emissions are no greater than
the SIP allowable emissions at the same production level.
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 an EPA-approved test
methods.
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