Title V Permit Writer's Tips - Incorporating Applicable Requirements
Title V permits must assure compliance with all Federal "applicable requirements." Applicable requirements are essentially all the rules, regulations, standards and permit conditions for the control of air pollution to which a source is subject under the Clean Air Act. Applicable requirements are defined in 40 CFR Part 70.2 and corresponding state regulations, and include:
- SIP regulations
- NSPS (40 CFR Part 60)
- NESHAP/MACT standards (pre-1990 NESHAP @ 40 CFR Part 61; post-1990 NESHAP/MACT @ 40 CFR Part 63)
- Terms and conditions of PSD/ NSR permits, including minor NSR permits
- Risk management plan requirements (section 112(r) of the CAA)
- Case-by-case MACT determinations (section 112(g) of the CAA)
- Acid rain requirements
- Section 111(d) plans
- Requirements for stratospheric ozone depleting chemicals (Title VI of the CAA)
- Solid waste incineration requirements (section 129 of the CAA)
- Consumer/commercial product requirements (section 183(e) of the CAA)
- Outer continental shelf requirements (section 328 of the CAA)
- Tank vessel requirements (section 183(f) of the CAA)
1. Differences Between SIP and State Versions of Rules
Title V permits must assure compliance with all applicable SIP requirements. Sometimes the SIP-approved version of a rule differs from the state's current effective version of the rule. For example, EPA may have approved a state rule as part of the SIP years ago, but the state has since revised that regulation, and the more recent version has not yet been SIP-approved by EPA. Generally, there are two main options to address this situation:
a) include the SIP-approved version of the rule in the federally-enforceable section of the permit, and the state-effective version in a state-enforceable only section of the permit; or
b) if the state can demonstrate that compliance with the state-effective version of the rule will assure compliance with the SIP version, then the state may choose to "streamline" the limits in accordance with EPA's White Paper #2. (White Paper #2 can be found on the internet at http://www.epa.gov/ttn/oarpg/t5wp.html. Also, see Section II for more guidance on "streamlining").
2. Regulations Pending EPA's SIP Rulemaking Process
In cases where the state has submitted a regulation for EPA's approval into the SIP, but EPA has not yet taken action on that regulation, the requirements deriving from such regulation should be included in the Title V permit as state-only enforceable. However, to avoid a permit revision after EPA's SIP approval to make the condition federally-enforceable, permitting authorities may include language that will make the state requirement automatically federally-enforceable if EPA approves the underlying regulation into the SIP.
|A permit condition in the state-enforceable only section of the permit
|NSPS Applicable requirements typically consist of:
1. Translating NSPS into Title V Permit Conditions
A general methodology to translate NSPS applicable requirements into Title V permit conditions involves the following steps:
- Determine applicability of standard, and of specific requirements.
- Eliminate control options which source will not use, or standards that do not apply (e.g., emission standards that do not apply because source is not allowed to use a particular type of fuel, or is not permitted to use a particular type of equipment).
- Categorize applicable requirements (including general provisions) as either standards/emission limits, monitoring, recordkeeping, reporting, work practice standards, testing, etc.
- Distinguish whether these requirements are applicable facility-wide, to a particular process(es), or to specific equipment.
- Link each emission limit/standard to its associated compliance methods (monitoring, recordkeeping, etc.). If the NSPS does not contain sufficient methods to assure compliance, determine appropriate "gap-filling" periodic monitoring.
2. Boilers/Fuel Type
When incorporating NSPS Subpart Da, Db, and Dc requirements (requirements for various sized boilers), the emission limits for all fuel types must be incorporated into the permit unless there is a permit condition restricting the source to burning only certain fuels. If the permit includes a restriction for burning only specified fuel types, then the permit may include only the applicable requirements for those specified fuel types.
Note: This "Tip" may be applicable to other NSPS standards, and to MACT standards too!
|A sources has three boilers rated at 120 mmBtu/hour of heat
input, which are subject to NSPS Subpart Db. The source burns anthracite coal as the
primary fuel, and No. 2 fuel oil as a backup fuel. Because NSPS Subpart Db contains
emission limits for a variety of fuel types (e.g., coal, natural gas, distillate oil,
residual oil, wood, etc.), the permit includes a condition restricting the source to
burning only anthracite coal and No. 2 fuel oil, to avoid having to include all of the
emission limits for each fuel type specified in Subpart Db.
[Of course, the permit would also contain associated monitoring, recordkeeping, reporting, compliance procedures, etc.]
1. NSR Permits Are Applicable Requirements
Title V permits must include terms from currently effective major or minor source NSR permits and federally-enforceable state operating permits, including any continuing NSR obligations. Cite the NSR/operating permit number and specific permit condition number as the bases of authority for the applicable requirement. If the NSR/operating permit term also stems from another underlying applicable requirement, such as SIP, NSPS or MACT, also cite the underlying requirement as a basis of authority.
|An example permit condition from the District of Columbia states:
Here, the permitting authority has cited both the SIP regulation as well as a prior operating permit condition, and condition number as the bases of authority for the permit condition.
As with other applicable requirements, NSR permit terms can be "streamlined" in accordance with EPA White Paper #2. (See Section II for more guidance on streamlining).
2. Title V Permits Do Not Void Previously Issued NSR Permits
Issuance of a Title V permit does not void or supersede a currently effective NSR permit. However, a state can revise a currently effective NSR permit at the same time it issues a Title V permit, in accordance with EPA's "White Paper #1" (July 10, 1995), which can be found on the internet at http://www.epa.gov/ttn/oarpg/t5wp.html. As explained in the White Paper #1, the procedures of the applicable NSR program govern the NSR permit revision, and the procedures of the state's Title V program govern the Title V permit issuance (or revision). The public notice must address both the revision to the NSR permit and the issuance (or revision) of the Title V permit.
1. Incorporation by Reference
Generally, the guidance given in Section I.B pertaining to NSPS also applies to incorporating NESHAP/MACT standards into Title V permits. EPA is involved in ongoing discussions with permitting authorities at the national level to develop additional guidance on the appropriate "level of detail" of MACT standards that should be incorporated into Title V permits.
|To IBR or NOT to IBR ... not an easy question!
Must balance "simplicity" of IBR with "precision" (the need to create unambiguous, comprehensive permits tailored to the specific source)
One of the key areas of discussion is the extent to which requirements within a MACT standard should be incorporated by reference (IBR). All emission limits, monitoring, recordkeeping, reporting, compliance determination methods, etc., applicable to all emission units must be clearly incorporated into the permit. The details of these requirements may be IBR'd so long as applicability and compliance obligations are clear; however, IBR is not always the best approach. For example, if an entire MACT standard is simply IBR'd into the permit (e.g., the permit states, "The source shall comply with the requirements of 40 CFR Subpart T, National Emission Standards for Halogenated Solvent Cleaning, which are hereby incorporated by reference"), the Title V permit adds no value to understanding the source's specific compliance obligations.
|Note: IBR'ing an Entire MACT into a Permit also Diminishes the Impact of the Permit Shield ... When a sources specific compliance obligations under a MACT standard are specified in a permit, the source may, under certain circumstances, assert the permit shield (if granted in the permit) as a defense to violating a specific compliance obligation which was erroneously omitted from the permit.|
One of the goals of the Title V program was that both the source and the permitting authority would gain a better understanding of the specific requirements applicable to the source, which would lead to improved compliance. There is value to be gained by a source -- and the permit writer -- by studying the specific requirements of a MACT standard, culling out those requirements that apply to the source, and translating them in a logical fashion as Title V permit conditions. In many cases, a particular source may only be subject to a subset of the requirements in a MACT standard, based on its specific equipment or chosen control option. Through this exercise, both the source and permit writers (and EPA, in reviewing the permit) gain a better understanding of the MACT requirements in general, as well as how that standard specifically affects the source. This approach should aid the source in complying with the standard, and aid permitting authorities and EPA in inspecting the source.
Some appropriate uses of IBR include:
- test methods
- inspection and maintenance plans
- calculation methods/equations needed to determine compliance.
When IBR'ing, the citation must be detailed enough so that there is no misinterpretation. The citation must specify the relevant sections (as specifically as possible) of the regulation, and must be clear as to which part of the source the requirements apply (e.g., facility-wide, process, emission unit, etc.)
|IBR -- Proper Citations
Units #1 & 2: Immersion Batch Cold Cleaning Machines
A. Emission Limits/Standards: ...
B. Monitoring: ...
C. Recordkeeping: ...
D. Reporting: Permittee shall submit a compliance report meeting the requirements specified in 40 CFR 63.468(c)(1)-(4) to EPA Region III and the state permitting authority by May 2, 1998. [Citation of authority].
E. Work Practice: Permittee shall employ a tightly fitting cover in accordance with 40 CFR 63.462(a)(1). [Citation of authority].
IBR -- Improper Citations
Note that if the permit condition in (D) above were written as follows, it would NOT be correct:
The bracketed citation immediately following the permit condition is the citation of authority from which the permit condition stems -- it does NOT incorporate the referenced regulation into the permit.
2. Addressing Compliance Options
Many MACT standards contain more than one compliance option (e.g., source can choose to comply via use of a carbon adsorber or a thermal oxidizer). For simplicity and precision, the Title V permit should include only the compliance option selected by the source -- if the source has already selected a compliance option (which usually depends on the due dates for initial notification/initial performance tests). If the source desires flexibility to switch to another compliance option, the permit could IBR an alternative compliance option(s) (e.g., as an alternative operating scenario), but the associated monitoring, recordkeeping, reporting requirements also must be addressed in the permit.
The Statement of Basis should "tell the story" of how the source is complying with the MACT. For example, the Statement of Basis should describe whether/why certain provisions are not applicable, the source's selected compliance option (if known), the results of the initial performance test (or when it will be conducted), and the monitoring requirements.
|A source subject to the marine tank loading MACT identifies in its application that it has installed (or will install by x date) a carbon adsorber to meet MACT. The Statement of Basis clarifies that the permittee has opted to use a carbon adsorber (as provided by 40 CFR 63.563(b)(6)) to comply with MACT, and states when the initial performance test was performed (or will be performed). If known, the Statement of Basis should also describe the baseline parameters for required percent recovery efficiency (e.g., VOC concentration, regeneration time, total stream flow).|
E. Title VI Requirements (Ozone Depleting Substances)
Many facilities are subject to the requirements under Title VI of the Clean Air Act for the control of ozone depleting substances from motor vehicle air conditioners, refrigeration and other sources. Title V permits are required to contain "any standard or other requirement of the regulations promulgated to protect stratospheric ozone under Title VI of the Act, unless the Administrator has determined that such requirements need not be contained in a Title V permit". To date, the EPA Administrator has not made any determination to exclude these requirements from Title V permits.
The following example contains recommended permit conditions to address Title VI requirements. Because these requirements apply to such a large number and wide range of sources, the permit conditions could be included as boilerplate language in the General Conditions section of each permit (similar to the way many states incorporate 112(r) permit conditions).
|Model Permit Conditions to Address Title
1. The permittee shall comply with the standards for labeling of products using ozone-depleting substances pursuant to 40 CFR Part 82, Subpart E:
2. The permittee shall comply with the standards for recycling and emissions reduction pursuant to 40 CFR Part 82, Subpart F, except as provided for MVACs in Subpart B:
3. If the permittee manufactures, transforms, destroys, imports, or exports a class I or class II substance, the permittee is subject to all the requirements as specified in 40 CFR part 82, Subpart A, Production and Consumption Controls.
4. If the permittee performs a service on motor (fleet) vehicles when this service involves ozone-depleting substance refrigerant (or regulated substitute substance) in the motor vehicle air conditioner (MVAC), the permittee is subject to all the applicable requirements as specified in 40 CFR part 82, Subpart B, Servicing of Motor Vehicle Air Conditioners.
The term "motor vehicle" as used in Subpart B does not include a vehicle in which final assembly of the vehicle has not been completed. The term "MVAC" as used in Subpart B does not include the air-tight sealed refrigeration system used as refrigerated cargo, or system used on passenger buses using HCFC-22 refrigerant. These systems are regulated under 40 CFR Part 82, Subpart F.
5. The permittee shall be allowed to switch from any ozone-depleting substance to any alternative that is listed as acceptable in the Significant New Alternatives Program (SNAP) promulgated pursuant to 40 CFR part 82, Subpart G, Significant New Alternatives Policy Program.
EPA anticipates that language similar to items 2.a., 2.b., and 2.c. of the suggested permit conditions above would need to be incorporated into every permit issued. The other permit conditions only need to be in the permit if the source is subject to those requirements. In addition, if the final revisions to the Title V program (40 CFR Part 70) are promulgated as proposed on August 24, 1994 (in other words, only requirements promulgated pursuant to sections 608 and 609 of the Act would have to be contained in the permit), only conditions similar to the permit conditions suggested at items 2 and 4 above would need to be included in the permit. The Part 70 revisions final rule is expected in Spring 1999.
|Why isnt the source subject to this requirement?|
During the course of preparing the draft Title V permit, if it has been determined that certain requirements are NOT applicable to a source, include an explanation in the Statement of Basis. This will aid EPA reviewers and the public in knowing that an affirmative applicability determination has been made (i.e., requirements weren't "forgotten"), and the reasons why requirements don't apply. For example, if a source belongs to a source category (or has a piece of equipment) for which there is an NSPS, MACT, or SIP standard, the Statement of Basis should explain why the standard does not apply to that source.
|A source has five 25 mmBtu/hr boilers. The
Statement of Basis includes the following explanation:
Note: When making an NSPS applicability determination, confirm the initial construction date of the affected source as well as whether it was reconstructed or modified since the applicability date.
|NSPS Subpart Y for Coal Preparation Plants contains requirements for particulate matter and opacity that only apply if the source operates a thermal dryer or pneumatic coal cleaning equipment (40 CFR 60.252(a) and (b)). The Statement of Basis explains that these requirements are not incorporated into the Title V permit for a coal preparation plant because the source is not permitted to use a thermal dryer or coal cleaning equipment.|
|In its permit application, a source
identifies that it operates a cold solvent cleaning machine (degreaser). The Statement of