EPA's Operating Permit Regulations: White Paper For Streamlined
DevelopmentOf Part 70 Permit Applications
Introduction
Over the past year, as industrial facilities have begun to face
the task of preparing Title V permit applications, it has become
increasingly clear that the associated burdens would be enormous
for large industrial facilities. Every element of the permit
application preparation process has seemed to entail a much more
extensive undertaking than anticipated and require resources that
far exceeded EPA's estimates. Of particular concern have been
the need to generate much new emissions information, engage in
lengthy analyses to identify applicable requirements, and carry
out elaborate inquiries in preparation for signing compliance
certifications.
EPA's staff have consistently taken the position that the Title V
regulations themselves do not require that preparation of permit
applications be such a burdensome undertaking. However, the
reality has been different. To respond to the growing level of
concern among industry and states, EPA prepared a White Paper
For Streamlined Development of Part 70 Permit Applications dated
July 10, 1995. This paper includes many helpful interpretations
that should simplify preparation of Title V applications.
However, it will be critical for states to reflect EPA's guidance
in their Title V implementation in order for the contemplated
simplification to be realized.
This paper will summarize the White Paper and present the
information in a format that is intended to make the elements of
EPA's guidance more readily accessible. The principal purpose is to facilitate an
understanding of the guidance and provide a vehicle for working
cooperatively with states to have the guidance implemented to the
maximum extent possible. The Title V permit process will
inevitably necessitate the allocation of significant EPA, state,
and industry resources. Thus, it is imperative that every tool
available for simplifying the permitting process be used
effectively.
General Statements of Policy
EPA's White Paper sets out a number of key policy statements that
underlie the guidance streamlining the part 70 permit application
process. pp. 1-3. The most significant of these are summarized
below:
Need for Immediate Action
The guidance is to enable states to take immediate steps to
reduce the costs of preparing and reviewing initial part 70
permit applications. EPA also stresses that it is imperative
that the provisions and clarifications be implemented by States
as quickly as possible. Permit applications have been, and will
continue to be, required in increasingly large numbers in the
coming months, and thus the need for immediate action is great.
Limited Objectives of Title V
EPA confirms again that Title V permits and permit applications
are vehicles for defining existing compliance obligations rather
than for imposing new requirements or accomplishing other
objectives.
Minimal Information in Permit Application
Throughout the White Paper, EPA makes the point that, in light of
the purpose of Title V not being to establish new requirements,
only very limited information is necessary to accomplish the
recordation and compliance assurance functions. In contrast to
new source permitting where complicated decisions may be
necessary, the Title V permitting process requires relatively
little information except in the infrequent circumstance where
uncertainty regarding applicability of requirements may exist.
Title V Program Threatened
The guidance states that EPA believes that the [permit
application] problems, if unaddressed, would threaten
implementation of the Title V program.
State Rulemakings Unnecessary
EPA confirms that the clarifications in the guidance are made
under the current part 70 regulations and should typically not
require State rulemaking. The EPA strongly urges States to allow
sources to take near term advantage of the flexibility provided
by [the White Paper].
The general points set out above are reflected throughout the
White Paper both in general statements and in the policy
pronouncements on specific issues.
Streamlined Development Of Complete Part 70 Applications
Requirements for Complete Applications
This section of the White Paper is generally a restatement of the
requirements of the Title V regulations for complete
applications. Several key points are made. pp. 4-5. The
following section, which addresses the content of permit
applications, provides specific guidance regarding how
information to be submitted in applications is to be
significantly streamlined.
Completeness Procedures Required
EPA confirms that each state program must contain criteria and
streamlined procedures for determining when Title V applications
are complete.
Basic Policy Re Completeness
For applications to be deemed complete, it is only necessary that
they have information sufficient to allow the permitting
authority to begin processing the application.
Additional Requests for Information
EPA points out that submission of additional information
requested by the permitting authority is an essential part of the
permitting process. Through this avenue, permitting authorities
can obtain additional information where the minimal amount
provided initially needs to be supplemented. p. 4.
Retention of Application Shield
EPA confirms that the application shield once granted remains in
effect until permit issuance even where the source augments its
original application submittal in response to requests for more
information by the permitting authority. p. 4.
Simplified Compliance Plans
The guidance makes clear that only very limited information is
required in compliance plans. For existing requirements where
the source is in compliance, only a statement that the source
will continue to comply is required. For future effective
applicable requirements, only a statement that the source will
meet them is necessary. Where there is noncompliance with
existing requirements, a narrative description of how the source
will achieve compliance and a detailed schedule of remedial
measures leading to compliance must be provided. A
certification of the source's compliance status and a statement
of the methods used for determining compliance also are required.
Content of Part 70 Permit Applications
Overview
Several points are made in this introductory section. EPA again
clarifies that the minimum requirements for acceptable part 70
permit applications are identified in the guidance. pp. 5-6. In
particular, EPA makes the following points:
Minimal Information Required
@PULLTEXT = The guidance expressly states that EPA urges States
to keep part 70 application requirements to the minimum needed to
identify applicable requirements, although EPA recognizes that
different States may adopt different approaches. To emphasize
how little emissions information may be required, EPA points out
that in many instances, a qualitative description of emissions,
or sometimes no description at all, will satisfy the minimum
authorized under the guidance.
Lowering of Other Application Burdens
@PULLTEXT = The overview explains that each of the sections
related to permit content are to provide policy clarifications
to lower current application burdens.
Required Emissions Information and Source Descriptions
This section of the guidance sets forth the minimum information
required for complete Title V applications, and reflects policies
that should dramatically reduce the amount of information that
many have believed necessary up to this point. pp. 6-8. For the typical source, it should
generally not be necessary to develop any new emissions
information. The key points made are as follows:
Basic Policy re Emissions Information
For most sources, major source status will not be an issue. Nor
will emissions information be critical in identifying applicable
requirements to be listed in the application. Also, in most
states, permit fee determinations are made through a separate
process. In these situations, the following information is the
minimum provided for in the guidance:
Emission Units Subject to Applicable Requirements
@PULLTEXT = For each pollutant and emissions unit combination
regulated at the source, only emissions information necessary to
establish compliance consistent with the applicable standard
reference test method must be submitted. Moreover, as
discussed under Quality of Required Information below,
reasonably-available information may be used.
Estimates in TPY Often Not Required
@PULLTEXT = Although section 70.5(c)(3)(iii) requires emissions
rate descriptions in tons per year, EPA interprets the tpy
estimates to not be required at all where they would serve no
useful purpose, where a quantifiable emissions rate is not
applicable (e.g., section 112(r) requirements or a work practice
standard), or where emissions units are subject to a generic
requirement (see [the discussion below under] Generic Grouping of
Emissions Units and Activities).
Unregulated Significant Emissions Units
@PULLTEXT = For significant emission units not subject to
applicable requirements, only a qualitative description of the
units is required. No summary emissions information is necessary.
Also, no qualitative description of the emissions is required for
insignificant emissions units.
Policy Re Emissions Applicable to Special Circumstances
The foregoing policies regarding streamlined information are
applicable to most facilities. However, EPA confirms that
additional information will be required in certain circumstances.
These are described below:
Plantwide Emission Limits
@PULLTEXT = A source seeking to have a plantwide emissions limit
established or defined in a part 70 permit would presumptively
be required to submit a greater level of emissions information to
verify emissions levels and monitoring approaches.
Non-Applicability Shields
@PULLTEXT = If a source seeks to have the permitting authority
grant a permit shield that would include a decision that certain
requirements are not applicable because source emissions are
below relevant cutoffs, additional emissions information would
likely be required to support that permit shield decision.
Permit Fees
@PULLTEXT = EPA indicates that, for the minority of States
that use the part 70 application to determine the first year's
permit fee, the information necessary for making fee calculations
would be required.
Dispute Over Applicability of Requirement
@PULLTEXT = Where there is a dispute over whether a particular
requirement is applicable which must be resolved through analysis
of emissions information, or where the determination of whether a
source is major is in question, additional emissions information
may be necessary. EPA confirms, though, that where the source
stipulates as to the applicability of a requirement and/or its
major source status, additional information would not be
necessary.
Additional Guidance re Emissions Information
EPA also includes a number of additional points that either
clarify or simply confirm the part 70 rule. These include:
Use of Available Information
@PULLTEXT = EPA again confirms that, where emissions estimates
are needed, use of available information should suffice. EPA
specifically says that information that is sufficient to support
a reasonable belief as to compliance or the applicability or
non-applicability of requirements will be acceptable for these
purposes.
No Inclusion of Estimates as New Terms
EPA confirms that any required ton per year estimates are
not to be included as federally-enforceable part 70 permit
terms, unless required by an applicable requirement or
requested by the source to avoid one.
Multiple Forms of Estimates Not Necessary
EPA points out that part 70 does not require multiple forms
of emissions estimates (i.e., actual, allowable, and
potential emissions).
Cross-Referencing Permissible
The guidance recognizes that adequate emissions estimates
may have been submitted for other purposes such as the
recent submittal of emissions inventory, and states that
cross-referencing that information is sufficient for part
70.
Description of Unregulated Units
For significant units not covered by an applicable
requirement and for unregulated pollutants at units that are
subject to applicable requirements, EPA provides that a
general description of emissions (i.e., simple
identification of the significant pollutant or family of
pollutants believed to be emitted by the emissions unit )
should suffice. Descriptions of emissions units also can be
quite general. Specifically, descriptions need not contain
information such as UTM coordinates or model and serial
numbers for equipment, unless such information is needed to
determine the applicability of, or to implement, an
applicable requirement. Also, negative declarations are
not required for pollutants not emitted by an emissions
unit.
Insignificant Activities
EPA's guidance on insignificant activities eliminates much
confusion regarding what is required in permit applications. pp.
8-9. In addition, it provides for a new category of trivial
activities that may streamline permit applications for many
sources. The key points made are:
Basic Policy
Part 70 does not require that any information be provided in
permit applications on activities included on a state's
insignificant activities list, unless the activities are
excluded because they fall below a size or production rate
cutoff. No emissions information whatever should be
required.
Insignificance Based on Size or Production Rate Cutoffs
The guidance indicates that it is sufficient for sources to
simply list in an application the kinds of insignificant
activities subject to such cutoffs that are present at the
source or check them off from an approved list.
Trivial Activities
EPA for the first time recognizes a category of activities
that need not be described in permit applications even
though they are not included on a state's insignificant
activities list. These are activities that are clearly
trivial (i.e., emissions units and activities with specific
applicable requirements and with extremely small
emissions). The necessary first step is for the state to
develop a list of these activities for exclusion from Title
V permits, but once included on a list no information is
required for them in Title V applications. One notable
aspect of the description of trivial activities is that
these are activities that can be excluded even though they
are subject to specific applicable requirements. Up to
this point, EPA has taken the position that activities
subject to such requirements could not be excluded from
Title V permits. States are given the authority to develop
their own list of trivial activities. The White Paper
includes a list of examples of trivial activities on its
Attachment A, which is included verbatim with this Issue
Analysis as Appendix B.
Generic Grouping of Emissions Units and Activities
The White Paper provides for a simplified approach to dealing
with generic requirements at Title V sources. pp. 9-10. For
sources subject to requirements that fit within EPA's
description, the benefits would be not only a simplified Title V
permit application, but also significant reductions in the
frequency with which permit revisions may be necessary. This new
category of activity and the relevant guidelines are described
below:
Definition of Generic Requirements
The guidance includes little specific definition of what
comes within this category. It does state that they include
certain broadly applicable requirements often found in the
SIP. Examples brought to EPA's attention include
requirements that apply identically to all emissions units
at a facility (e.g., source-wide opacity limits), general
housekeeping requirements, and requirements that apply
identical emission limits to small units (e.g., process
weight requirements).
Description Required in Permit
EPA states that these requirements can normally be
adequately addressed in the permit application with minimal
or no reference to any specific emissions unit or activity.
However, the scope of the requirement and the manner of its
enforcement need to be clear in the application.
Exclusion of Units
As long as the applicability of these requirements is
documented and the compliance status is described as
required, the individual emissions units or activities may
be excluded from the application. Also, the part 70 permit
would then be written without specificity to emissions units
or activities. However, compliance assurance requirements
must be included and any specific requirement relative to
these provisions must be addressed as well.
Not Limited to Small Units
The guidance provides that the authorization for treating
requirements generically does not depend on whether the
activities qualify as trivial or insignificant. The only
prerequisite is that the following conditions be satisfied:
(1) the class of activities or emissions units subject to
the requirement [must be ones that] can be unambiguously
defined in a generic manner; and (2) effective
enforceability of that requirement [must] not require a
specific listing of specific units or activities.
Short-Term Activities
EPA provides that states can treat many short-term activities
subject to an applicable requirement in the same manner as
activities subject to generic requirements (which are discussed
in the preceding paragraphs). p. 10. The relevant rules are:
Definition of Short-Term Activities
EPA does not attempt to include a comprehensive description,
but does specifically reference activities occurring
infrequently and for a short duration at a part 70 source.
Basic Policy
For short-term activities, the application and permit would
not include emissions unit specificity. Instead, it would
contain a general duty to meet all applicable requirements
that would apply to any qualifying short-term activity.
Determination of Applicable SIP Requirements
EPA recognizes that the requirement to determine applicable SIP
requirements is one of the undisputed challenges facing both
States and the regulated community. EPA's guidance (pp. 10-11)
will simplify the SIP requirement identification process
significantly:
Basic Policy
A good faith estimate [of applicable SIP requirements] will
be enough to support both a valid compliance certification
and a 'completeness' determination. The good faith
estimate is further described as requiring that applicants,
after consultation with the permitting authority, . . .
include in permit applications the State rules which, to the
best of their knowledge are in the SIP.
Implications of Later Identified Requirements
If additional requirements are identified subsequent to
submission of permit applications, there should be no effect
on the validity of the original permit application and its
eligibility for the application shield or of the
accompanying compliance certification. The source would be
required to update its certification to account for any
later identified SIP requirements.
Reliance on Specific Information Sources
EPA gives several examples of additional approaches, other
than good faith source estimates, that are sufficient for
determining applicable SIP requirements. These include use
of a state-developed check list and compliance with the
associated state requirements, as well as use of EPA
contractor-developed compilations.
Treatment of Pending SIP Requirements
One of the major problems that exists in most states is that
many SIP requirements have not been acted upon by EPA. EPA
outlines the following process for dealing with such
requirements: (1) sources would first note that the pending
SIP requirement is a state-only requirement that will become
federally enforceable upon SIP approval; (2) the status
would be tracked by the permitting authority, with
incorporation in the permit as a federally enforceable
requirement occurring when SIP approval occurs; (3)
continued identification of the requirement as state-only if
SIP approval did not occur before issuance of the permit;
(4) automatic treatment as federally enforceable upon SIP
approval; and (5) provision for existing SIP requirements to
expire upon EPA approval of the SIP provision.
Incorporation of Prior NSR Permit Terms and Conditions
Perhaps the most innovative portion of the White Paper guidance
is contained in this section, which outlines a mechanism for
deleting federally-enforceable permit terms that have been
established through new source review permits.
pp. 11-15. EPA outlines a new policy with regard to which new
source review terms must be included in Title V permits and then
outlines a procedure for deleting requirements that need not be
included. Up to this point, EPA had interpreted its Title V
regulations as requiring all minor new source review terms to be
included in Title V permits and had not embraced any approach for
reducing the numbers of such terms that must be included in
permits. The key elements of the new policy are as follows:
Basic Policy
The guidance states that EPA has concluded that only
environmentally significant terms need to be included in
part 70 permits.
Procedures for Purging NSR Terms
EPA provides for a parallel processing approach to delete
NSR terms and provides a mechanism for terms that fit within
its guidelines. The basic concept is that the NSR term
would be removed as a federally-enforceable requirement by
revising the NSR permit concurrently with the process for
issuance of the part 70 permit.
Scope of Terms That May Be Excluded
The categories of terms that EPA provides can be excluded
from NSR permits are ones that are obsolete, extraneous,
environmentally insignificant, or otherwise not required as
part of the SIP or a federally-enforceable NSR program.
The specific categories of terms and individual types of
limitations that EPA identified as candidates for exclusion
are identified in Appendix C.
Terms That May Not Be Excluded
EPA provides that certain NSR terms must be included in part
70 permits. These include mandatory terms under EPA's
governing regulations (e.g., BACT, LAER), ones not mandatory
but expressly required under the state's NSR program (e.g.,
NSPS and SIP emission limits, reporting and recordkeeping
requirements), or ones that are voluntarily taken to avoid
an otherwise applicable requirement (e.g., emission limits
used to create a synthetic minor source, to net out of
major NSR, or to create tradable offsets or other emission
reduction credits).
Initial Identification of Candidate Terms for Exclusion
When submitting part 70 applications, sources are to
propose candidate terms from their current NSR permits
which they reasonably believe should be considered for
revision, deletion, or designation as being enforceable only
by the State.
No Compliance Certification for Candidate Terms to Be Excluded
The guidance provides that, when the source submits its
application, it would, as a Federal matter, only need to
certify compliance status for those remaining NSR terms that
it had earmarked for incorporation into the part 70 permit
as federally-enforceable terms. If the permitting
authority later determines that additional terms beyond
those proposed as federally enforceable by the source should
be retained to implement NSR, the source would be required
to re-certify its application with respect to those NSR
terms. As with all other permitting authority requests,
failure of the source to respond as required by the
permitting authority would result in loss of the application
shield and, in this instance, also cause the certification
to no longer be accurate.
Timing of Decisions Re Exclusions
The guidance provides that resolution of which NSR terms are
to be included in the initial part 70 permit should ideally
be completed by the time of its issuance. Recognizing that
states may not have adequate resources, EPA specifically
authorizes that final decisions can be postponed beyond the
time of permit issuance up to the time of renewal of the
permit. The permitting authority is to specify a deadline
for making such determinations in the permit and include a
stipulation that such terms will be reviewed and decisions
made regarding exclusion by the identified deadline.
Enforcement under State Law
Until decisions are made on NSR terms to be excluded, the
candidate terms would continue to be enforceable under
State law as terms of the NSR permit. Terms not deleted or
designated as State-only would be incorporated in the
federally-enforceable portion of the part 70 permit
consistent with applicable permit revision procedures.
New Terms for Practical Enforceability
EPA indicates that there may be some instances where it
would be necessary to add new terms to the part 70 permit
to make any incorporated NSR permit terms enforceable from
a practical standpoint, to reflect operation rather than
construction, or to meet other part 70 requirements
regarding the content of permits. EPA provides no examples
of the types of terms that might be necessary. In light of
the compliance assurance requirements included in Title V,
it seems unlikely that there should be many, if any, terms
that should be needed for practical enforceability.
However, there may be limited instances where the precise
intent of specific requirements needs to be addressed by the
permitting authority and the source.
Section 112(r) Requirements
The guidance confirms EPA's basic policies with regard to section
112(r) in the context of Title V. p. 15. These are:
Basic Term Included In Permit
Sources otherwise required to obtain a part 70 permit only
need to acknowledge (where appropriate) that the on-site
storage and processing of section 112(r) chemicals may
require the source to submit a risk management plan when
that requirement becomes applicable.
No Quantification of Emissions
Sources are not required to quantify emissions of substances
listed under section 112(r), unless they are also
pollutants listed under section 112(b), and such
quantification is needed for fee collection purposes.
Research and Development Activities
EPA indicates that it expects R&D activities will generally be
exempt from part 70 and not be involved in the part 70
application process. pp. 15-16. This is due to the fact that
they are typically independent, non-major sources.
Basic Policy
Title V permits are not required for R&D activities unless
they are either individually major or a support facility
making significant contributions to the product of a
collocated major manufacturing facility.
Laboratory Activities
These activities are eligible for classification as an
insignificant activity if there are no applicable SIP
requirements. The existence of work practice laboratory
requirements only require statements in permit applications
acknowledging their applicability and certifications of
compliance.
Minimal Information Required
Where subject to a Title V permit, R&D and laboratory
activities are not to be subject to requirements for an
extensive inventory of chemicals and activities or a
detailed description of emissions. Nor is there a need to
monitor emissions.
Applications from Non-Major Sources
Permitting for non-major sources differs significantly from that
for major sources (p. 16), as follows:
Only Limited Terms Required to be Included
Part 70 provides that permits for non-major sources only
have to address the requirements applicable to emissions
units that cause the source to be subject to Title V
permitting. Other units are not required to be covered,
even if they are subject to applicable requirements.
No Information on Units Not Triggering Applicability
Since applications for non-major sources are not to include
applicable requirements for emissions units that do not
cause the source to be subject to part 70, no information on
those units is needed in the permit application.
Supporting Information
EPA includes several statements under this heading regarding
information to be submitted with permit applications. pp. 16-17.
Basic Policy
EPA confirms that the great majority of the detailed
background information relied upon by the source to prepare
the information need not be included in the application for
it to be found complete.
Emissions Calculations
Pointing out that certain emissions-related calculations are
required under section 70.5(c)(3)(viii), EPA encourages the
permitting authority to allow the source to only submit
examples of calculations performed that illustrate the
methodology used.
Permitting Authority Requests for Additional Information
EPA confirms that the permitting authority can request
detailed information needed to justify any questionable
information or statement in the application or to the
extent needed to write a comprehensive draft permit.
Quality of Required Information
EPA once again emphasizes the fact that part 70 permit
applications are not intended to cause industry to spend
considerable sums for generating new emissions information. pp.
17-18. Key points that are made are:
Basic Policy
Except when disputes occur or unusual circumstances necessitate a
different approach, where estimates of emissions are necessary,
reasonably-available information may be used. New testing is
not required and emissions factors are presumed to be acceptable
for emissions calculations, but more accurate data are preferred
if readily available.
Examples of Acceptable Information Sources
EPA specifically identifies emission factors in AP-42 and other
EPA documents as ones that are acceptable to make necessary
emissions calculations. EPA also authorizes other emission
estimation methods, such as materials balance, source test, or
continuous emissions monitoring (CEM) data, when emissions
estimates produced through the use of emission factors are not
appropriate.
Permitting Authority Discretion
EPA states that, when a range of values is identified, permitting
authorities are often better able to make decisions regarding
the appropriate emissions factor value to be used. Emissions
estimates must be expressed in terms consistent with the
applicable requirement, but the source may rely on any data
using the same units and averaging times as in the test method.
Special Rules for HAPs
Only limited quantification of HAP emissions should be required.
When Title V permit applications are submitted, many sources will
not be subject to federally-enforceable HAP requirements, and
thus should only be subject to providing a general description of
the emission units. Where emissions information is required, EPA
makes clear that the need for quantification or even estimation
should . . . decrease the lower the levels are that are present.
In appropriate cases, statements that trace amounts of certain
HAPs may be present should be sufficient.
Phase-in of Details for Completeness Determinations
EPA confirms that there is considerable flexibility available for
finding applications administratively complete when only very
limited information is submitted, if this is acceptable to the
permitting authority. pp. 18-19.
Basic Policy
EPA states that permitting authorities can find an application
complete if it meets four criteria: (1) defines the applicable
requirements; (2) indicates whether the source is major or minor;
(3) certifies the compliance status with respect to all
applicable requirements; and (4) allows the permitting authority
to determine where the source fits under its approved permit
issuance schedule. Also, a certification as to truth, accuracy,
and completeness must be included.
Additional Information Submitted in Phases
EPA further refines its statements on complete applications by
saying that if the source has supplied at least initial
information in all the areas required by the permit application
form and has certified it appropriately, the application can be
deemed complete enough to begin processing by the permitting
authority. Thus, sources should not be required to submit
applications many days in advance to build in time for an
iterative process before the application submittal deadline.
Updates to Initially Complete Applications Due to Change
EPA's White Paper relies heavily on the opportunity for
permitting authorities to obtain additional information where the
initial application needs to be supplemented for processing to be
completed. EPA includes specific guidelines in several areas
with regard to such updating. pp. 19-20. The White Paper
provides for additional information to be submitted by either the
applicant or permitting authority and contemplates that any
additional information must be certified upon its being added to
the application.
Changing Emissions Information
The White Paper provides guidance on how and when changes in
emissions information need to be addressed. It divides the
information into two basic categories, as follows:
Information Affecting Permit Terms or Compliance Status
The guidance makes clear that the source must submit
information promptly if it affects the applicable
requirements to be included in the permit or the source's
compliance status. Such information may include a change
that causes the source to become newly subject to
applicable requirements or may affect its ability to comply
with a current NSR permit condition.
Procedures for Submission of New Information
Where new information affects the applicability of
requirements that must be included in the application or the
compliance status with any applicable requirement, the
information should be submitted as an addendum to the
application if it is discovered at any time prior to the
issuance of the proposed permit. The permitting authority
is required to revise the permit accordingly. If discovered
after permit issuance, the resulting change can be addressed
as a permit revision or as a reopening. The guidance
indicates that setting intervals for updating in order to
structure the process and make it more efficient is
desirable.
Postponement of Submission of Information until Renewal
Where information does not affect the applicability of
applicable requirements or a source's compliance status, the
new information need not be submitted until permit renewal,
unless the permitting authority requires submission earlier.
Other Changes
EPA also indicates that there are other changes that can require
updating an initially complete application, such as a new
regulatory requirement becoming applicable before the permit is
issued.
Content Streamlining
Cross-Referencing
EPA adopts a policy that provides for, and indeed encourages,
cross-referencing to numerous other documents in preparing permit
applications and issuing permits. pp. 20-22.
Basic Policy
The White Paper states that the permitting authority may allow
the application to cross-reference previously issued
preconstruction and part 70 permits, State or local rules and
regulations, State laws, Federal rules and regulations, and other
documents that affect the applicable requirements to which the
source is subject. The one proviso is that the referenced
materials be currently applicable and available to the public.
Also, the source must certify to the accuracy of any description
of such cross-referenced documents. Finally, the public docket
for the permit action must include the materials, unless they are
published and/or are otherwise readily available.
Citation-Based Permitting
EPA specifically provides for citations to be used to streamline
how applicable requirements are described. This will avoid
paraphrasing or re-stating federal regulatory provisions or other
applicable requirements in readily available documents. EPA
points out that the citation must be clear with respect to limits
and other requirements that apply to each subject emissions unit
or activity. Also, this is critical for the source which must
make certain that there is no potential for misunderstanding in
subsequent enforcement actions.
Incorporation of Part 70 Applications by Reference into Permits
EPA discourages the incorporation of entire applications into
permits. This is a practice that has been used in the past, but
should not be used in part 70 permitting. The White Paper
provides that, if states do incorporate applications by
reference, EPA will consider information in the application to be
federally enforceable only to the extent it is needed to make
other necessary terms and conditions enforceable from a practical
standpoint. Also, permit revisions for changes in other aspects
of the application will not be required.
Changing Application Forms
EPA encourages states to reexamine their permit application forms
in light of their experience to date and the contents of the
White Paper. While revision of an application form probably
requires a program revision, EPA provides that such a revision
can, in most instances, be accomplished through an exchange of
letters with the appropriate EPA Regional Office. Also, a state
could notify the regional office that it intends to make
completeness determinations based on completion of parts of the
existing forms to reduce the burdens associated with formally
changing systems already developed.
Responsible Official
In this section, EPA provides an interpretation of the definition
of responsible official insofar as it relates to partnerships.
pp. 22-24. The guidance recognizes that many partnerships are
made up of corporations or partnerships, or combinations of both,
and that oftentimes it is not appropriate for a general partner
to carry out the duties of a responsible official. For that
reason, EPA provides that the same categories of officials as act
as responsible officials for corporations can also act in that
capacity for partnerships where partnerships have such other
organizations as general partners.
Compliance Certification Issues
EPA includes the guidance on compliance certifications that was
issued in a separate memorandum from Lydia Wegman and Kathie
Stein to EPA regional offices on July 3, 1995. The key points made are as follows:
Basic Policy
For compliance certifications with initial part 70 permit
applications, sources are required to review current major and
minor NSR permits and other permits containing Federal
requirements, SIPs and other documents, and other Federal
requirements in order to determine applicable requirements for
emission units.
No Reconsideration of Previous Applicability Determinations
Required
The guidance states that companies are not federally required
to reconsider previous applicability determinations as part of
the inquiry in preparing part 70 permit applications.
Rectifying Past Noncompliance
EPA points out that it expects companies to rectify past
noncompliance as it is discovered.
No Shield for Noncompliance
Despite the fact that reconsideration of past applicability
decisions by sources is not required, companies will remain
subject to enforcement actions for any past noncompliance with
requirements to obtain a permit or meet air pollution control
obligations.
Appendix A
White Paper Emissions Information Examples
EPA's guidance includes the examples set out below to elaborate
on the guidance related to providing emissions information and
source descriptions in Title V permit applications. p. 8. The
examples are included verbatim from the guidance. They are as
follows:
An application for a de-greaser subject to a requirement to have
a certain type of lid could describe the relevant applicable
requirement and simply identify that it emits volatile organic
compounds (VOC) and falls within the scope of the regulation.
Quantification of the VOC emissions would not be necessary since
the level of emissions is not relevant to the standard.
An application for a storage tank subject to a requirement to
have a certain type of seal, in addition to describing this
requirement, would only need to generally identify the types of
pollutants emitted, such as VOC and HAP generally.
An application for a boiler that is grandfathered under the SIP
could just identify that PM, SO2, NOx, VOC, lead, and HAP are
emitted and that no applicable requirement is relevant.
Appendix B
List Of Activities That May Be Treated As Trivial
The following types of activities and emissions units may be
presumptively omitted from part 70 permit applications. Certain
of these listed activities include qualifying statements intended
to exclude many similar activities.
Combustion emissions from propulsion of mobile sources, except
for vessel emissions from Outer Continental Shelf sources.
Air-conditioning units used for human comfort that do not have
applicable requirements under title VI of the Act.
Ventilating units used for human comfort that do not exhaust air
pollutants into the ambient air from any manufacturing/industrial
or commercial process.
Non-commercial food preparation.
Consumer use of office equipment and products, not including
printers or businesses primarily involved in photographic
reproduction.
Janitorial services and consumer use of janitorial products.
Internal combustion engines used for landscaping purposes.
Laundry activities, except for dry-cleaning and steam boilers.
Bathroom/toilet vent emissions.
Emergency (backup) electrical generators at residential
locations.
Tobacco smoking rooms and areas.
Blacksmith forges.
Plant maintenance and upkeep activities (e.g., grounds-keeping,
general repairs, cleaning, painting, welding, plumbing,
re-tarring roofs, installing insulation, and paving parking lots)
provided these activities are not conducted as part of a
manufacturing process, are not related to the source's primary
business activity, and not otherwise triggering a permit
modification.
Repair or maintenance shop activities not related to the source's
primary business activity, not including emissions from surface
coating or de-greasing (solvent metal cleaning) activities, and
not otherwise triggering a permit modification.
Portable electrical generators that can be moved by hand from one
location to another.
Hand-held equipment for buffing, polishing, cutting, drilling,
sawing, grinding, turning or machining wood, metal or plastic.
Brazing, soldering and welding equipment, and cutting torches
related to manufacturing and construction activities that do not
result in emission of HAP metals.
Air compressors and pneumatically operated equipment, including
hand tools.
Batteries and battery charging stations, except at battery
manufacturing plants.
Storage tanks, vessels, and containers holding or storing liquid
substances that will not emit any VOC or HAP.
Storage tanks, reservoirs, and pumping and handling equipment of
any size containing soaps, vegetable oil, grease, animal fat, and
nonvolatile aqueous salt solutions, provided appropriate lids and
covers are utilized.
Equipment used to mix and package, soaps, vegetable oil, grease,
animal fat, and nonvolatile aqueous salt solutions, provided
appropriate lids and covers are utilized.
Drop hammers or hydraulic presses for forging or metalworking.
Equipment used exclusively to slaughter animals, but not
including other equipment at slaughterhouses, such as rendering
cookers, boilers, heating plants, incinerators, and electrical
power generating equipment.
Vents from continuous emissions monitors and other analyzers.
Natural gas pressure regulator vents, excluding venting at oil
and gas production facilities.
Hand-held applicator equipment for hot melt adhesives with no VOC
in the adhesive formulation.
Equipment used for surface coating, painting, dipping or spraying
operations, except those that will emit VOC or HAP.
CO2 lasers, used only on metals and other materials which do not
emit HAP in the process.
Consumer use of paper trimmers/binders.
Electric or steam-heated drying ovens and autoclaves, but not the
emissions from the articles or substances being processed in the
ovens or autoclaves or the boilers delivering the steam.
Salt baths using nonvolatile salts that do not result in
emissions of any regulated air pollutants.
Laser trimmers using dust collection to prevent fugitive
emissions.
Bench-scale laboratory equipment used for physical or chemical
analysis, but not lab fume hoods or vents.
Routine calibration and maintenance of laboratory equipment or
other analytical instruments.
Equipment used for quality control/assurance or inspection
purposes, including sampling equipment used to withdraw materials
for analysis.
Hydraulic and hydrostatic testing equipment.
Environmental chambers not using hazardous air pollutant (HAP)
gasses.
Shock chambers.
Humidity chambers.
Solar simulators.
Fugitive emission related to movement of passenger vehicles,
provided the emissions are not counted for applicability purposes
and any required fugitive dust control plan or its equivalent is
submitted.
Process water filtration systems and demineralizes.
Demineralized water tanks and demineralizer vents.
Boiler water treatment operations, not including cooling towers.
Oxygen scavenging (de-aeration) of water.
Ozone generators.
Fire suppression systems.
Emergency road flares.
Steam vents and safety relief valves.
Steam leaks.
Steam cleaning operations.
Steam sterilizers.
Appendix C
NSR Terms Identified by EPA as Candidates for Exclusionfrom Title
V Permits
EPA's White Paper identifies a number of categories of NSR terms
and specific individual NSR requirements that EPA believes could
potentially be excluded from Title V permits through the
procedures outlined in the White Paper. The specific categories
and the individual terms are set out below:
Obsolete Terms
In general, terms that are patently obsolete and no longer
relevant to the operation of the source
Terms regulating construction activity during the building or
modification of a source, where the construction is long
completed and the statute of limitation on construction-phase
activities has run out
Terms Not Required Under Federal Law
Odor limitations
Air toxics requirements where they do not reflect a section 112
standard or a SIP criteria pollutant requirement that is
federally enforceable
Extraneous, Out-dated or Otherwise Environmentally Insignificant
Terms
Information incorporated by reference from an application for a
preconstruction permit (however, if needed to enforce NSR permit
terms, it should be converted into part 70 permit terms)
Original terms of a preconstruction permit that has been
superseded by other terms related to operation
Other terms to be evaluated on a case-by-case basis
Copyright 1996 Morgan, Lewis & Bockius LLP. All rights reserved.