06/13/89
Guidance on Limiting Potential to Emit in New Source Permitting
MEMORANDUM JUNE 13, 1989
SUBJECT: Guidance on Limiting Potential to Emit in New Source Permitting
FROM: /s/ Terrell E. Hunt
Associate Enforcement Counsel
Air Enforcement Division
Office of Enforcement and Compliance Monitoring
/s/ John S. Seitz, Director
Stationary Source Compliance Division
Office of Air Quality Planning and Standards
TO: Addressees
This memorandum transmits the final guidance on conditions in
construction permits which can legally limit a source's potential to emit to
minor or de minimis levels. We received many helpful comments on the
January 24, 1989 draft of this guidance, and have incorporated the comments
into the final document wherever possible. A summary of the major changes
which have been made to the guidance in response to these comments is
provided below.
Several commenters noted that the draft guidance used the term
"federally enforceable" to mean both federally enforceable as defined in the
new source regulations ( 40 CFR Sections 52.21(b)(17), 51.165(a)(1)(xiv),
51.166(b)(17) ), and enforceable as a practical matter. We have tried to
distinguish the places where each term should be used, explained the
relationship between the two terms, and indicated that in order to properly
restrict potential to emit, limitations must be both federally enforceable
as defined in the regulations and practically enforceable.
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Some commenters requested that the section on averaging times for
production limits be more specific as to when it is appropriate to use
limitations which exceed a one month time basis. We have tried to explain
why it is not possible to develop generic criteria for making this
distinction, and to indicate situations where exceptions to the policy that
production and operation limitations not exceed one month may be warranted.
There were some requests for a section on enforcement. We have included
a new Section VI which addresses this topic. We also received many good
suggestions on the example permit limitations. The section on examples has
been substantially reworked to reflect your comments.
Finally, we learned through the comments that in two specific
circumstances, short term emission limits are the most useful and reasonable
way to restrict and verify limits on potential to emit. These circumstances
are: 1) when control equipment is installed but control equipment operating
parameters are difficult to measure during enforcement inspections; and 2)
in surface coating operations with numerous and unpredictable use of
coatings containing varying VOC content, where add-on control equipment is
not employed. Therefore, we have made a narrow exception to the flat
prohibition on use of emission limits to restrict potential to emit for
these specific circumstances, and only when certain additional conditions
have been met.
Again, we appreciate the thoughtful comments we have received on this
guidance. Please insert this document into your Clean Air Act Compliance /
Enforcement Policy Compendium as Item Number H.3. If you have any
questions, please contact Judith Katz in the Air Enforcement Division at FTS
382-2843, or Sally Farrell in the Stationary Source Compliance Division at
FTS 382-2875.
Addressees:
Regional Counsels
Regions I-X
Regional Counsel Air Branch Chiefs
Regions I-X
Air Management Division Directors
Regions I, III, and IX
Air and Waste Management Division Director
Region II
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Air, Pesticides, and Toxics Management Division Directors
Regions IV and VI
Air and Radiation Division Director
Region V
Air and Toxics Division Directors
Regions VII, VIII, and X
Air Compliance Branch Chiefs
Regions I - X
New Source Review Contacts
Regions I - X
Alan Eckert
Associate General Counsel
Greg Foote, OGC
Gary McCutchen, NSRS, AQMD
David Solomon, NSRS, AQMD
Sally Farrell, SSCD
Judy Katz, AED
David Buente, Chief
Environmental Enforcement Section
DOJ
LIMITING POTENTIAL TO EMIT IN NEW SOURCE PERMITTING
JUNE 13, 1989
AIR ENFORCEMENT DIVISION
OFFICE OF ENFORCEMENT AND COMPLIANCE MONITORING
STATIONARY SOURCE COMPLIANCE DIVISION
OFFICE OF AIR QUALITY PLANNING AND STANDARDS
Limiting Potential to Emit in Major New Source Permitting
I. Introduction
II. The Louisiana-Pacific Case
III. Types of Limitations that will Limit Potential to Emit
IV. Time Periods for Limiting Production and Operation
V. Sham Operational Limits
A. Permits with conditions that do not reflect a source's planned mode
of operation are void ab initio and cannot act to shield the source
from the requirement to undergo preconstruction review.
1. Sham permits are not allowed by 40 CFR 52.21(r)(4)
2. Sham permits are not allowed by the definition of potential to
emit: 40 CFR 52.21(b)(4), 51.165(a)(1)(iii), 51.166(b)(4)
3. Sham permits are not allowed by the Clean Air Act
B. Guidelines for determining when minor source construction permits
are shams.
1. Filing a PSD or nonattainment NSR application
2. Applications for funding
3. Reports on consumer demand and projected productions levels
4. Statements of authorized representatives of the source
regarding plans for operation
VI. Enforcement Procedures
VII. Examples
VIII. Conclusion
Limiting Potential to Emit in New Source Permitting
I. Introduction
Whether a new source or modification is major and subject to new source
review under Parts C and D of the Clean Air Act is dependent on whether that
source or modification has or will have the potential to emit major or
significant amounts of a regulated pollutant. Therefore, the definition of
"potential to emit" under the new source regulations is extremely important
in determining the applicability of new source review to a particular
source. The federal regulations define potential to emit as:
the maximum capacity of a stationary source to emit a pollutant under
its physical and operational design. Any physical or operational
limitation on the capacity of the source to emit a pollutant, including
air pollution control equipment and restrictions on hours of operation
or on the type or amount of fuel combusted, stored or processed, shall
be treated as part of its design if the limitation or the effect it
would have on emissions is federally enforceable.
40 CFR Sections 52.21(b)(4), 51.165(a)(1)(iii), 51.166(b)(4).
Permit limitations are very significant in determining whether a source
is subject to major new source review. This is because they are the easiest
and most common way for a source to obtain restrictions on its potential to
emit. A permit does not
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have to be a major source permit to legally restrict potential emissions. A
minor source construction permit issued pursuant to a state program approved
by EPA as meeting the requirements of 40 CFR Section 51.160 is federally
enforceable. In fact, any permit limitation can legally restrict potential
to emit if it meets two criteria: 1) it is federally enforceable as defined
by 40 CFR Sections 52.21(b)(17), 51.165(a)(1)(xiv), 51.166(b)(17), i.e.,
contained in a permit issued pursuant to an EPA-approved permitting program
or a permit directly issued by EPA, or has been submitted to EPA as a
revision to a State Implementation Plan and approved as such by EPA, and 2)
it is enforceable as a practical matter. The second criterion is an implied
requirement of the first criterion. A permit requirement may purport to be
federally enforceable, but, in reality cannot be federally enforceable if it
cannot be enforced as a practical matter.
Non-permit limitations can also legally restrict potential to emit.
These limitations include New Source Performance Standards codified at 40
CFR Section 60 and National Emission Standards for Hazardous Air Pollutants
codified at 40 CFR Section 61.
The appropriate means of restricting potential to emit through permit
conditions has been an issue in recent enforcement cases. Through these
cases and through guidance issued by EPA, the Agency has addressed three
questions: what types of permit
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limitations can legally limit potential to emit; whether long averaging
times for production limitations are enforceable as a practical matter; and
whether sources may limit potential to emit to minor source levels as a
means of circumventing the preconstruction review requirements of major
source review.
II. The Louisiana-Pacific Case
In United States v. Louisiana-Pacific Corporation, 682 F. Supp. 1122
( D. Colo. Oct. 30, l987 ) and 682 F. Supp. 1141 ( D. Colo. March 22,
1988 ), Judge Alfred Arraj discussed the type of permit restrictions which
can be used to limit a source's potential to emit. The Judge concluded
that:
...not all federally enforceable restrictions are properly considered in
the calculation of a source's potential to emit. While restrictions on
hours of operation and on the amount of materials combusted or produced
are properly included, blanket restrictions on actual emissions are not.
682 F. Supp. at 1133.
The Court held that Louisiana-Pacific's permit conditions which limited
carbon monoxide emissions to 78 tons per year and volatile organic compounds
to 101.5 tons per year should not be considered in determining "potential to
emit" because these blanket emission limits did not reflect the type of
permit conditions which restricted operations or production such as limits
on hours of operation, fuel consumption, or final product.
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The Louisiana-Pacific court was guided in its reasoning by the D.C.
Circuit's holding in Alabama Power v. Costle, 636 F. 2d 323 ( D.C. Circuit
l979 ). Before Alabama Power, EPA regulations required potential to emit to
be calculated according to a source's maximum uncontrolled emissions. In
Alabama Power, the D. C. Circuit remanded those regulations to EPA with
instructions that the Agency include the effect of in-place control
equipment in defining potential to emit. EPA went beyond the minimum
dictates of the D.C. Circuit in promulgating revised regulations in l980 to
include, in addition to control equipment, any federally enforceable
physical or operational limitation. The Louisiana-Pacific court found that
blanket limits on emissions did not fit within the concept of proper
restrictions on potential to emit as set forth by Alabama Power.
Moreover, Judge Arraj found that:
...a fundamental distinction can be drawn between the federally
enforceable limitations which are expressly included in the definition
of potential to emit and ...( emission ) limitations.... Restrictions
on hours of operation or on the amount of material which may be
combusted or produced ... are, relatively speaking, much easier to
"federally enforce." Compliance with such conditions could be easily
verified through the testimony of officers, all manner of internal
correspondence and accounting, purchasing, and production records. In
contrast, compliance with blanket restrictions on actual emissions would
be virtually impossible to verify or enforce.
Id. Thus, Judge Arraj found that blanket emission limits were not
enforceable as a practical matter.
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Finally, the Court reasoned that allowing blanket emission limitations
to restrict potential to emit would violate the intent of Congress in
establishing the Prevention of Significant Deterioration ( PSD ) program.
III. Types of Limitations that will Restrict Potential to Emit
As an initial matter in this discussion, a few important terms should be
defined. Emission limits are restrictions over a given period of time on
the amount of a pollutant which may be emitted from a source into the
outside air. Production limits are restrictions on the amount of final
product which can be manufactured or otherwise produced at a source.
Operational limits are all other restrictions on the manner in which a
source is run, including hours of operation, amount of raw material
consumed, fuel combusted, or conditions which specify that the source must
install and maintain add-on controls that operate at a specified emission
rate or efficiency. All production and operational limits except for hours
of operation are limits on a source's capacity utilization. Potential
emissions are defined as the product of a source's emission rate at maximum
operating capacity, capacity utilization, and hours of operation.
To appropriately limit potential to emit consistent with the opinion in
Louisiana-Pacific, all permits issued pursuant to 40 CFR Sections 51.160,
51.166, 52.21 and 51.165 must contain a
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production or operational limitation in addition to the emission limitation
in cases where the emission limitation does not reflect the maximum
emissions of the source operating at full design capacity without pollution
control equipment. Restrictions on production or operation that will limit
potential to emit include limitations on quantities of raw materials
consumed, fuel combusted, hours of operation, or conditions which specify
that the source must install and maintain controls that reduce emissions to
a specified emission rate or to a specified efficiency level. Production
and operational limits must be stated as conditions that can be enforced
independently of one another. For example, restrictions on fuel which
relates to both type and amount of fuel combusted should state each as an
independent condition in the permit. This is necessary for purposes of
practical enforcement so that, if one of the conditions is found to be
difficult to monitor for any reason, the other may still be enforced.
When permits contain production or operational limits, they should also
have recordkeeping requirements that allow a permitting agency to verify a
source's compliance with its limits. For example, permits with limits on
hours of operation or amount of final product should require an operating
log to be kept in which the hours of operation and the amount of final
product produced are recorded. These logs should be available
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for inspection should staff of a permitting agency wish to check a source's
compliance with the terms of its permit.
When permits require add-on controls operated at a specified efficiency
level, permit writers should include, so that the operating efficiency
condition is enforceable as a practical matter, those operating parameters
and assumptions which the permitting agency depended upon to determine that
the control equipment would have a given efficiency.
An emission limitation alone would limit potential to emit only when it
reflects the absolute maximum that the source could emit without controls or
other operational restrictions. When a permit contains no limits on
capacity utilization or hours of operation, the potential to emit
calculation should assume operation at maximum design or achievable capacity
( whichever is higher ) and continuous operation ( 8760 hours per year ).
The particular circumstances of some individual sources make it
difficult to state operating parameters for control equipment limits in a
manner that is easily enforceable as a practical matter. Therefore, there
are two exceptions to the absolute prohibition on using blanket emission
limits to restrict potential to emit. If the permitting agency determines
that setting operating parameters for control equipment is infeasible in a
particular situation, a federally enforceable permit
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containing short term emission limits ( e.g. lbs per hour ) would be
sufficient to limit potential to emit, provided that such limits reflect the
operation of the control equipment, and the permit includes requirements to
install, maintain, and operate a continuous emission monitoring ( CEM )
system and to retain CEM data, and specifies that CEM data may be used to
determine compliance with the emission limit.
Likewise, for volatile organic compound ( VOC ) surface coating
operations where no add-on control is employed but emissions are restricted
through limiting VOC contents and quantities of coatings used, emission
limits may be used to restrict potential to emit under the following limited
circumstances. If the permitting agency determines for a particular surface
coating operation that operating and production parameters ( e.g. gallons of
coating, quantities produced ) are not readily limited due to the wide
variety of coatings and products and due to the unpredictable nature of the
operation, emission limits coupled with a requirement to calculate daily
emissions may be used to restrict potential to emit. The source must be
required to keep the records necessary for this calculation, including daily
quantities and the VOC content of each coating used. Emission limits may be
used in this limited circumstance to restrict potential to emit since, in
this case, emission limits are more easily enforceable than operating or
production limits.
9
IV. Time Periods For Limiting Production and Operation
As discussed above, a limitation specifically recognized by the
regulations as reducing potential to emit is a limitation on production or
operation. However, for these limitations to be enforceable as a practical
matter, the time over which they extend should be as short term as possible
and should generally not exceed one month. This policy was explained in a
March 13, l987 memorandum from John Seitz to Bruce Miller, Region IV. The
requirement for a monthly limit prevents the enforcing agency from having to
wait for long periods of time to establish a continuing violation before
initiating an enforcement action.
EPA recognizes that in some rare situations, it is not reasonable to
hold a source to a one month limit. In these cases, a limit spanning a
longer time is appropriate if it is a rolling limit. However, the limit
should not exceed an annual limit rolled on a monthly basis. EPA cannot now
set out all-inclusive categories of sources where a production limit longer
than a month will be acceptable because every situation that may arise in
the future cannot now be anticipated. However, permits where longer rolling
limits are used to restrict production should be issued only to sources with
substantial and unpredictable annual variation in production, such as
emergency
10
boilers. Rolling limits could be used as well for sources which shut down
or curtail operation during part of a year on a regular seasonal cycle, but
the permitting authority should first explore the possibility of imposing a
month-by-month limit. For example, if a pulp drier is periodically shut
down from December to April, the permit could contain a zero hours of
operation limit for each of those months, and then the appropriate hourly
operation limit for each of the remaining months. Under no circumstances
would a production or operation limit expressed on a calendar year annual
basis be considered capable of legally restricting potential to emit.
V. Sham Operational Limits
In the past year, several sources have obtained purportedly federally
enforceable permits with operating restrictions limiting their potential to
emit to minor or de minimis levels for the purpose of allowing them to
commence construction prior to receipt of a major source permit. In such
cases where EPA can demonstrate an intent to operate the source at major
source levels, EPA considers the minor source construction permit void ab
initio and will take appropriate enforcement action to prevent the source
from constructing or operating without a major source permit.
11
The following example illustrates the kind of situation addressed in
this section: An existing major stationary source proposes to add a 12.5
megawatt electric utility steam generating unit, and applies for a federally
enforceable minor source permit which restricts operation at the unit to 240
hours per year. Because the project is designed as a baseload facility, EPA
does not believe that the source intends to operate the facility for only
240 hours a year. Further investigation would probably uncover
documentation of the source's intent to operate at higher levels than those
for which it is permitted.
This situation raises the question of whether a source can lawfully
bypass the preconstruction or premodification review requirements of
Prevention of Significant Deterioration ( PSD ) and nonattainment New Source
Review by committing to permit conditions which restrict production to a
level at which the source does not intend to operate for any extensive time.
If, after constructing and commencing operation, the source obtains a
relaxation of its original permit conditions prior to exceeding them, does
this constitute a violation of the preconstruction review requirements?
This section discusses why it is inappropriate to construct a source with a
minor source permit when there is intent to operate as a major source, and
provides guidelines for identifying these "sham" permits.
12
A. Permits with conditions that do not reflect a source's planned mode
of operation are void ab initio and cannot act to shield the source from the
requirement to undergo preconstruction review.
1. Sham permits are not allowed by 40 CFR Section 52.21(r)(4)
Section 52.21(r)(4) states:
At such time that a particular source or modification becomes a major
stationary source or major modification solely by virtue of a relaxation
in any enforceable limitation which was established after August 7, l980
on the capacity of the source or modification otherwise to emit a
pollutant, such as a restriction on hours of operation, then ( PSD )
shall apply to the source or modification as though construction had not
yet commenced on the source or modification.
When a source that is minor because of operating restrictions in a
construction permit later applies for a relaxation of that construction
permit which would make the source major, Section 52.21(r)(4) prescribes the
methodology for determining best available control technology ( BACT ).
However, it does not foreclose EPA's ability, in addition to the retroactive
application of BACT and other requirements of the PSD program, to pursue
enforcement where the Agency believes that the initial minor source permit
was a sham. EPA will limit its activity to requiring application of 40 CFR
52.21(r)(4) only for the cases where a source legitimately changes a project
after finding that the operating restrictions which were taken in good faith
cannot be complied with. Whether a source has acted in good faith is a
factual question which is answered by available evidence in the particular
case.
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2. Sham permits are not allowed by the definition of potential to
emit: 40 CFR Sections 52.21(b)(4), 51.165(a)(1)(iii), 51.l66(b)(4).
The definition of potential to emit enables sources to obtain federally
enforceable permits with operational restrictions as a means of limiting
emissions to minor source levels. However, implicit in the application of
these limitations is the understanding that they comport with the true
design and intended operation of the project.
3. Sham permits are not allowed by the Clean Air Act
Parts C and D of the Clean Air Act exhibit Congress's clear intent that
new major sources of air pollution be subject to preconstruction review.
The purposes for these programs cannot be served without this essential
element. Therefore, attempts to expedite construction by securing minor
source status through the receipt of operational restrictions from which the
source intends to free itself shortly after operation are to be treated as
circumvention of the preconstruction review requirements.
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B. Guidelines for determining when minor source construction permits
are shams.
EPA's determination that a purportedly federally enforceable
construction permit is a sham is made based on an evaluation of specific
facts and evidence in each individual case. The following are criteria
which should be scrutinized when making such a determination:
1. Filing a PSD or nonattainment NSR permit application
If a major source or major modification permit application is filed
simultaneously with or at approximately the same time as the minor source
construction permit, this is strong evidence of an intent to circumvent the
requirements of preconstruction review. Even a major source application
filed after the minor source application, but either before operation has
commenced or after less than a year of operation should be looked at
closely.
2. Applications for funding
Applications for commercial loans or, for public utilities, bond issues,
should be scrutinized to see if the source has guaranteed a certain level of
operation which is higher than that in its construction permit. If the
project would not be funded or if it would not be economically viable if
operated on an
15
extended basis ( at least a year ) at the permitted level of production,
this should be considered as evidence of circumvention.
3. Reports on consumer demand and projected production levels.
Stockholder reports, reports to the Securities and Exchange Commission,
utility board reports, or business permit applications should be reviewed
for projected operation or production levels. If reported levels are
necessary to meet projected consumer demand but are higher than permitted
levels, this is additional evidence of circumvention.
4. Statements of authorized representatives of the source regarding
plans for operation.
Statements by representatives of the source to EPA or to state or local
permitting agencies about the source's plans for operation can be evidence
to show intent to circumvent preconstruction review requirements.
Note that if a determination is made that a permit is a "sham" for one
pollutant and, therefore, the source is a major source or major
modification, the permit may possibly still contain valid limits on
potential to emit for other pollutants.
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In such cases, the entire source must still go through new source review,
during which, for PSD review, all significant pollutants for which there is
a net significant increase must be analyzed for BACT. In nonattainment new
source review, new sources must have LAER determinations only for pollutants
for which they are major. Major modifications, however, must have LAER
determinations for all nonattainment pollutants emitted in significant
amounts. If the valid limits in a partially void minor source construction
permit keep certain pollutants below significance levels, then those
pollutants would not have to be analyzed for BACT or LAER. However, if a
source or modification is determined to be major for PSD or NSR because part
of its minor permit is deemed void, it would have to undergo BACT or LAER
analysis for all significant pollutants.
VI. Enforcement Procedures
This guidance has discussed permit conditions which will legally
restrict potential to emit, shielding a source from the requirement to
comply with major new source permitting regulations. Failure by a
permitting agency to adhere to these guidelines may result in a permit that
does not legally restrict potential to emit, thereby subjecting a source to
major new source review. If that source has not gone through
preconstruction review, it is a significant violator of the Clean Air Act
and is subject to enforcement for constructing or
17
modifying without a major new source permit.
The enforcement options available to EPA in these situations include
administrative action under Sections 167 or 113(a)(5) of the Act or federal
judicial action under Sections 113(b)(2), 113(b)(5), 113(c), or 167. Which
enforcement option is selected depends on the facts of the particular
situation. ( See July 15, l988 guidance on EPA Procedures for Addressing
Deficient New Source Permits. )
VII. Examples
The following examples are provided to illustrate the type of permit
restrictions which would and would not legally limit potential to emit to
less than major source thresholds. These examples are provided for purposes
of clarifying the potential to emit and averaging time guidance only. They
are not intended to reflect all the permit conditions necessary for a valid
permit. Specific test methods, compliance monitoring and recordkeeping and
reporting requirements are necessary to make permit limitations enforceable
as a practical matter. The use of examples where averaging times are the
longest times allowed under EPA policies is not intended to necessarily
condone the selection of the longest averaging times; averaging times should
in practice be as short as possible.
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1. The minor source construction permit for a boiler contains the
following restrictions: 250,000 gal fuel / month; 0.8% S fuel; 8000 hours /
year.
These conditions are federally enforceable production and operation
limits, but do not limit potential to emit because one of them does not meet
EPA policies on enforceability as a practical matter. The averaging time
for hours of operation, one of the operational limits necessary to restrict
emissions to less than 250 tpy, exceeds a monthly or rolling yearly limit.
If, instead of 8000 hours / year, the hourly restriction were stated as 666
hours / month, the permit would serve to keep the source a minor source,
assuming the permit contains appropriate recordkeeping provisions.
2. A waferboard plant which has the physical capacity to emit over 300
tpy of carbon monoxide in the absence of using specific combustion
techniques has the following permit restriction as the sole emission
limitation: 249 tpy.
This does not limit potential to emit since an operational or production
restriction is necessary for the source to be restricted to 249 tpy. The
permit must contain a restriction on hours of operation or capacity
utilization which, when multiplied by the maximum emission rate for the CO
sources at the plant, results in emissions of 249 tpy. Additionally, while
the
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emission limit alone cannot restrict potential to emit, the emission limit
is unenforceable as a practical matter since it is limited on an annual
basis. The permit should contain a short term emission limit ( in addition
to the annual emission limit ), consistent with the compliance period or
parameter in the applicable test method for determining compliance.
3. A small scale rock crushing plant that cannot emit more than 240
tpy under maximum operation without controls ( including plant-wide
particulate emissions from transfer and storage operations ) has the
following permit restriction as the sole emission limitation: 240 tpy
particulate matter.
Since no operational limitations are necessary for the source to emit
below 250 tpy, no operational restrictions need be in the permit to limit
potential to emit. However, although this is not a major source, the state
agency should express the emission limit in this permit as a lb / hour
measure or gr / dscf so that it will be enforceable as a practical matter.
4. A plant consisting solely of a small rock crusher has the following
permit restrictions: 0.05 lb gr PM / dscf; fabric filter must be employed
and maintained at 99% efficiency.
Assuming that maintaining the fabric filter at 99% efficiency will
result in emissions of less than 250 tpy, this
20
permit would limit potential to emit if it also contained either 1)
parameters that allowed the permitting agency to verify the fabric filter's
operating efficiency or 2) a requirement to install and operate continuous
opacity monitors ( COMs ) and a specification that COM data may be used to
verify compliance with emission limits. Note that if this second
alternative were adopted, it would not be necessary to require that the
fabric filter be maintained at 99% efficiency.
To determine potential to emit, the efficiency rate of the fabric filter
would be multiplied by the maximum uncontrolled emission rate, the maximum
number of operating hours and maximum throughput capacity since there are no
other operating or production limits. However, the efficiency rate of the
fabric filter would not be enforceable as a practical matter unless there
were an enforceable means to monitor ESP performance on a short term basis.
The two alternatives mentioned above would satisfy this requirement.
5. A surface coating operation which has the capability of utilizing
l5,000 gal coating / month, with the following permit restrictions: 3.0 lb
VOC / gal coating minus water; 20.5 tons VOC / month; monthly VOC emissions
to be determined from records of the daily volumes of coatings used times
the manufacturers specified VOC content.
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This does not limit potential to emit since the source has the physical
capacity to exceed 250 tpy of VOC, and the permit does not contain a
production or an operational limitation. A monthly limit on gallons of
coating used which when multiplied by 3.0 lb / gal equates to less than the
250 tpy threshold ( e.g. 13,500 gallons / month ), with appropriate
recordkeeping, would generally be necessary to limit potential to emit. If,
however, the permitting agency determines, due to the wide variety of
coatings employed and products produced, that restrictions on operation or
production are not practically enforceable, then the above emission limits
could restrict potential to emit if there are requirements that the source
calculate emissions daily, and keep the appropriate records.
If the source was alternatively to meet the 20.5 ton / month limit by
employing add-on controls, the permit would need to contain an operational
limit, such as the requirement to install and operate an incinerator at 99%
efficiency. A requirement to monitor incinerator efficiency ( either
directly or indirectly via temperature monitoring for example ), and
appropriate recordkeeping requirements to verify compliance with each of the
permit conditions would also be necessary to make the permit conditions
enforceable as a practical matter. Note, however, that in the case where
add-on controls are employed, the source may be able to meet a shorter term
emission limit than the ton per month figure.
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VIII. Conclusion
We hope this guidance will help EPA Regions identify sources which have
the potential to emit major amounts of an air pollutant which will subject
those sources to the requirements of preconstruction new source review.
Every source which is subject to these requirements but has not obtained a
major new source permit should be seriously considered for enforcement
action.
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