33 ELR 10815 | Environmental Law Reporter | copyright © 2003 | All rights reserved

The Federal Title V Air Quality Permit Program for Operating a Major Source of Air Pollution: A Primer on the Substantive and Procedural Requirements Imposed on Industrial Facilities by the 1990 Clean Air Act Amendments, Applicable Regulations, and Key EPA Guidance Documents

Rolf R. von Oppenfeld is Managing Partner with the Team for Environmental Science and Technology Law (TESTLaw) Practice Group, operating under the law firm of von Oppenfeld, Hiser & Freeze, P.C., with western regional offices in Phoenix, Arizona, and eastern regional offices in Columbia, South Carolina. Mr. von Oppenfeld is a Martindale-Hubbell AV-rated attorney and has been listed in The Best Lawyers of America (1993-1996 editions). Mr. von Oppenfeld received his B.S. in chemistry and biology and worked as a chemist for the U.S. Environmental Protection Agency (EPA). He received his J.D. (summa cum laude) from George Washington University.

Eric L. Hiser is a partner and heads the regulatory practice for the TESTLaw Practice Group. He is a principal author of the Arizona Environmental Law Handbook (3d ed. 1999) and the South Carolina Environmental Law Handbook (3d ed. 2000), published by Government Institutes, ABS Consulting. He represents steel mills, copper plants, oil and gas pipelines, metal fabricators, electronics manufacturers, paper mills, food/beverage plants, and other businesses. Mr. Hiser received his J.D. with honors from Duke University.

Mark E. Freeze is a partner with the TESTLaw Practice Group in the areas of environmental toxic tort, and commercial litigation. Mr. Freeze has extensive experience in mold claims, Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cost recovery action, CERCLA allocations, Resource Conservation and Recovery Act and Clean Water Act (CWA) citizen suits, environmental insurance, and toxic tort litigation. Mr. Freeze received his J.D. in 1988 from the University of Texas.

[33 ELR 10815]

All companies today, whether large or small, need to be aware of the types and amounts of their air emissions. Based on the types and amounts of emissions, these sources may be required to obtain operating permits under the Clean Air Act's (CAA's) Title V program. This Article provides a detailed discussion of the Title V operating permit program and a review of the contents required in a Title V permit.

Title V Operating Permit Program

Background

The 1990 CAA Amendments introduced a comprehensive operating permit scheme for stationary sources. Prior to [33 ELR 10816] 1990, only new or modified sources were required to obtain permits. The operating permit program under the CAA Amendments was modeled on the Clean Water Act's (CWA's) national pollution discharge elimination system permitting scheme implemented beginning in 1972.

The primary goal of the CAA operating permit (or Title V) program is to incorporate all the requirements applicable to a covered facility into one document. This approach serves several purposes. The program provides a vehicle for easier enforcement; a single data set for all parties (government, the regulated entity, and the public) to refer to; increased consistency between environmental media; and a uniform national approach to permitting. The program also allows the development of a baseline data set for improved state implementation plan (SIP) development and emissions trading and offset programs.¹

The Title V program establishes the minimum requirements for an operating permit program, and the states are allowed to include more stringent requirements if they desire.² The permitting program is procedural; it does not impose any new air pollution control requirements but may impose additional monitoring, recordkeeping, reporting, and certification requirements.³ The permitting program is designed to be self-sufficient by imposing permit fees to cover costs. By the 1993 statutory deadline under CAA § 502(d), 48 states had their own permit programs. Today, all states have an approved operating permit program.⁴ In some cases, these programs are administered by local authorities or even tribal bodies.

The federal regulations governing state operating permits are found at 40 C.F.R. part 70. If a state does not have a fully approved permit program, then the U.S. Environmental Protection Agency (EPA) is required to administer the operating permit program under the federal regulations found at 40 C.F.R. part 71. Regardless of whether the facility is subject to the state or federal permitting program, the Title V permits are all federally enforceable.

Applicability and Scope

Current Scope of the Program: Major Sources, Affected Facilities, and Municipal Waste Combustors

The part 70 regulations allow permitting authorities to limit the scope of the Title V program to major sources, affected facilities under Title IV, municipal waste combustors regulated under § 129(a), and categories designated by the Administrator.⁵ Most permitting authorities have limited their program to these categories. Understanding the scope of these categories is critical to a proper understanding of Title V applicability.

Federal law requires sources in the following categories to potentially obtain a Title V permit per CAA § 502(a):

. Any source subject to the hazardous air pollutant (HAP) provisions at CAA § 112, except those subject solely to § 112(r) (accidental release provision).

. A major stationary source as defined under the definitions section of CAA § 302(j), i.e., any source that emits or has the potential-to-emit (PTE) 100 tons per year (tpy) of any air pollutant.

. An "affected source" under the acid rain program in subchapter IV of the CAA, i.e., any one of the listed units in table A of CAA § 404 or as provided in CAA § 405.

. Any source subject to the new source performance standards (NSPS) found in CAA § 111.

. Any source required to have a permit under the prevention of significant deterioration (PSD) and nonattainment area requirements found in parts C and D of CAA subchapter I, i.e., those requiring a PSD or new source review (NSR) permit.⁶

. Any source designated by the Administrator of EPA.

Unlike the preconstruction review program that proceeded Title V, the statute does not differentiate between new, modified, reconstructed, or existing major sources—all must obtain permits.⁷

[] Major Source. The CAA defines a major source in several different ways, depending on context. The Act itself generally defines a major source as "any stationary facility or source of air pollutants which directly emits, or has the [PTE], [100 tpy] or more of any air pollutant (including any major emitting facility or source of fugitive emissions of any such pollutant, as determined by rule by the Administrator)" in § 302(j). This definition introduces the fundamental concept that any "source" that has the PTE 100 tons or more of any regulated air pollutant, excluding fugitive emissions (except for sources in 27 listed categories) is subject to Title V control. The only exception is if such a source accepts enforceable limits on its operations that reduce its PTE below Title V thresholds. Such a source is typically referred to as a synthetic minor or conditional major source. The use of conditions to create a synthetic minor source is discussed later in the Article.

The second definition of major source includes any source regulated as a major stationary source under the PSD and nonattainment area major NSR preconstruction review programs. While the 250 and 100 ton PSD thresholds do not expand the universe of sources subject to Title V, the definition of major for certain nonattainment areas classification is lower, as seen in the table below. [33 ELR 10817]

(NEW COLUMN)Ozone

Nonattainment(NEW COLUMN)Volatile(NEW COLUMN)Particulate Matter(NEW COLUMN)Carbon Monoxide (CO)

Classification(NEW COLUMN)Organic(NEW COLUMN)Less Than 10 Microns

(NEW COLUMN)Compounds(NEW COLUMN)(PM[10])

(NEW COLUMN)(VOCs)

(NEW COLUMN)and Nitrogen

(NEW COLUMN)Oxide (NO_x)

Marginal(NEW COLUMN)100 tpy VOC[s]

(NEW COLUMN)100 tpy NO_x(NEW COLUMN)___(NEW COLUMN)___

Moderate(NEW COLUMN)100 tpy VOC[s]

(NEW COLUMN)100 tpy NO_x(NEW COLUMN)100 tpy PM[10](NEW COLUMN)100 tpy CO

Serious(NEW COLUMN)50 tpy VOC[s](NEW COLUMN)(NEW COLUMN)50 tpy CO if stationary

(NEW COLUMN)50 tpy NO_x(NEW COLUMN)70 tpy PM[10](NEW COLUMN)sources > 25% of inventory

Severe(NEW COLUMN)25 tpy VOC[s]

(NEW COLUMN)25 tpy NO_x

Extreme(NEW COLUMN)10 tpy VOC[s]

(NEW COLUMN)10 tpy NO_x

Thus, sources emitting amounts as small as 10 tpy may be subject to Title V operating requirements in extreme ozone nonattainment areas.

The third definition of major source arises from the HAP program. A major source is defined as any source that emits 10 tpy of any single HAP or 25 tpy of any combination of HAPs. Unlike the definition of major source under § 302(j) and the preconstruction review program, fugitive emissions are considered in determining the source's PTE in the HAP program.

The fourth definition of major source involves radionuclides. The definition in the regulations states "for radionuclides, 'major source' shall have the meaning specified by the Administrator by rule."⁸ The Administrator has yet to specify a meaning for major source by rule.

A major source includes a group of stationary sources from the same industrial group that are located on contiguous or adjacent properties and are under common control.⁹ The same industrial group means the sources have the same two-digit Standard Industrial Classification (SIC) code. In determining major source status under the § 302(j) definition, fugitive emissions¹⁰ are included in the determination if the facility falls within the 27 categories listed in 40 C.F.R. § 70.2. The 27th category includes all sources regulated under the NSPS or national emission standards for hazardous air pollutants (NESHAPs) under CAA §§ 111 and 112, respectively, but the fugitive emissions are counted only for those air pollutants regulated by the category under CAA §§ 111 or 112. Additionally, sources subject to NSR under parts C and D may be aggregated even with different SIC codes if they are support facilities "integrally related with the primary activity of the site."¹¹ Sources that are temporary or operated by contractors must be included in the emissions for major source determinations.¹²

A source may be broken down into emission units or groups of emission units and these breakdowns may be permitted instead of the entire source as a whole. However, every emission unit at a Title V source must be covered by a Title V permit.

The determination of whether the source is major or nonmajor is crucial. For major sources, all applicable requirements for all emissions units must be included in the permit.¹³ For example, if a source is considered a major source for a single criteria pollutant, then each regulated pollutant emitted from that source must be addressed in the permit, including NSPS, HAP standards under § 112, and any SIP requirements. In contrast, nonmajor sources subject to the permitting provisions need only address those requirements for those units that triggered Title V coverage.¹⁴

[] Affected Sources. Sources subject to Title IV of the CAA pertaining to acid deposition control (acid rain) are also subject to Title V as affected sources.¹⁵ The statute defines affected source as "a source that includes one or more affected units," which means "a unit that is subject to emission reduction requirements or limitations under this subchapter [Acid Deposition Control]."¹⁶

[] Municipal Waste Combustors. The CAA requires that "solid waste incineration units" or municipal waste combustors "operate pursuant to a permit issued under" Title V.¹⁷ This requirement becomes effective either 36 months after promulgation of performance standards for municipal waste combustors or upon the effective date of the state's Title V permit program, whichever is later.¹⁸ Since all states have approved Title V permit programs [33 ELR 10818] and performance standards have been promulgated, municipal waste combustors are subject to the Title V permitting process.

[] Other Sources Designated by the Administrator. The Administrator is authorized to designate other sources that must obtain a Title V operating permit. Thus far, the Administrator has only designated decorative chromium electroplating sources as other sources under Title V. However, the Administrator then rescinded this category.

[] Nonmajor and Exempt Sources. Despite the broad reach of Title V's permitting requirement, EPA has, by rule, allowed permitting authorities to temporarily defer most nonmajor sources from the Title V program until EPA has completed a rulemaking to determine "how the program should be structured for nonmajor sources and the appropriateness of any permanent exemption …."¹⁹ This option is not available, however, for "affected sources" under the acid rain program or solid waste incinerators subject to CAA § 129. Exemptions for nonmajor sources subject only to § 111 or § 112 are determined when a new standard is promulgated. These exemptions and deferrals are justified by EPA on the basis that immediate compliance would be impractical and infeasible, and that the vast majority of nonmajor sources are small businesses not currently regulated that would require great amounts of resources due to their lack of expertise and experience.²⁰

EPA has also exempted sources and source categories subject to the standards for residential wood heaters and asbestos demolition and renovation from Title V requirements provided that their regulation under 40 C.F.R. part 60, subpart AAA, and 40 C.F.R. § 61.145 would be the sole reason for Title V applicability.²¹ States, however, may require these sources to obtain permits if the state chooses.

Sources subject to a one-time reporting requirement provision under the CAA may not be required to obtain an operating permit. If an individual nonmajor source subject to 40 C.F.R. parts 60, 61, or 63 meets two conditions, the source will not be subject to Title V requirements.²² The first condition is that the "source's only applicable requirement is a one-time or ongoing notification, reporting, or recordkeeping requirement," and the second condition is that this requirement "exists to show that the source's actual emissions are below a certain threshold established by the standard."²³ EPA summarizes by stating:

We interpret the Clean Air Act and the regulations at parts 70 and 71 to mean that [the one-time reporting requirement sources] are "not subject to standards or regulations under section 111" for purposes of title V permitting …. Therefore, these sources are not required to apply for title V permits on the basis of their record keeping and reporting requirements as a matter of federal law.²⁴

An example of such a condition is certain volatile organic liquid storage vessels subject solely to a dimensional recordkeeping requirement under the NSPS in 40 C.F.R. part 60, subpart Kb.

Interpretation Issues

Some subjects of Title V are not clearly defined and still leave room for interpretation by EPA, state agencies, permittees, and sometimes the courts. When subjects are not clearly defined under Title V of the CAA, other titles of the Act are used to clarify or justify certain definitions.

[] Stationary Sources. Section 302(z) of Title V defines stationary source generally as "any source of an air pollutant except those emissions resulting directly from an internal combustion engine or nonroad vehicle."²⁵ In the regulations, a stationary source "means any building, structure, facility, or installation that emits or may emit any regulated air pollutant or any pollutant listed under section 112(b) of the Act."²⁶

White Paper Number 2 published by EPA on March 5, 1996, allows a source that is "familiar" to the permitting authority to stipulate that it is a major source or that it is subject to federal requirements as specified.²⁷ This policy alleviates the need for the source to gather and provide information to determine the applicability of the Title V program. "Familiarity" means the permitting authority has had previous review experience or has an "otherwise adequate" familiarity level with the facility's operation. Examples provided by EPA include having previously issued a permit to the facility or having a current emissions inventory.²⁸ However, this "does not affect the requirement to provide information for other purposes under part 70," such as monitoring and recordkeeping or emission descriptions.²⁹

The items to be included in the permit differs for major and nonmajor sources. Under 40 C.F.R. § 70.4(c)(1), an operating permit for a major source must include "all applicable requirements for all relevant emissions units in the major source." In other words, all the source's requirements under the CAA must be included. However, the next paragraph states that nonmajor source permits are only required to contain the applicable requirements that "cause the source to be subject to the part 70 program." EPA has taken the position that the national ambient air quality standards (NAAQS) for criteria pollutants implemented through a SIP is not an "applicable requirement" to be included in an operating permit.³⁰

[] PTE. A source's emissions are determined by its PTE for purposes of Title V applicability. "PTE" is defined at 40 C.F.R. § 70.2 as:

[33 ELR 10819]

The maximum capacity of a stationary source to emit any air pollutant under its physical and operational design. Any physical or operational limitation on the capacity of a source to emit an air pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation is enforceable by the Administrator.³¹

This definition mirrors the PTE definition for the NSR and PSD programs and is also used for the § 112 program. While the NSR and PSD programs were implemented before 1990, the § 112 and Title V programs were added in the 1990 CAA Amendments.

In January 1995, EPA issued a guidance document to serve as an interim, transitionary gap-filler for two years due to the difficulties in acquiring a federally enforceable limit (a requirement) because of slow state program implementation.³² The guidance listed five manners in which to create a federally enforceable PTE limit³³:

. federally enforceable state operating permit implemented through SIP and EPA-enforceable;

. state limits imposed by the SIP and approved by EPA;

. general permits;

. federally enforceable state construction permits, i.e., NSR and minor NSR; or

. Title V permits.

The policy also allows sources that actually emit less than one-half the major source threshold requirement to be treated as nonmajor sources for the interim period.

On July 21, 1995, the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit remanded the PTE definition with regard to the § 112 program and the "federally enforceable" requirement.³⁴ The D.C. Circuit then remanded and vacated the PTE rules for the NSR and PSD programs.³⁵ In light of these cases, EPA issued a memorandum in January 1996 on effective limits on PTE.³⁶ EPA stated that the three "overarching considerations" governing PTE limit effectiveness are: (1) enforceability as a practical matter; (2) compliance incentive effectiveness; and (3) state program effectiveness.³⁷ This memo discussed two options to ensure compliance effectiveness: (1) state or locally enforceable limits; or (2) streamlined federal enforceability. As EPA notes, the "central question arising from the court decisions is whether sufficient compliance incentives exist if EPA and citizens cannot directly enforce PTE limits in federal courts …."³⁸ EPA wanted to explore these two options with stakeholders for a future rulemaking on PTE limits and enforceability.

Nonetheless, the D.C. Circuit felled the last PTE definition later that year by vacating the definition as applied to the Title V program.³⁹ The 1995 transition policy, originally to be in effect for only two years, was extended until a rule could be promulgated, and the term "federally enforceable" in the PTE definition for purposes of operating permits has been redefined to mean "federally enforceable or legally or practicably enforceable by a State or local air pollution control agency at least for purposes of federal law."⁴⁰

[] Fugitive Emissions. As with the PSD and nonattainment NSR programs, fugitive emissions are counted under Title V to determine major source status only for certain source categories. The categories are listed under the definition for major source and are the same categories under the PSD program.⁴¹ Under the definition, a major stationary source is a source that "directly emits or has the potential to emit 100 tpy or more of any air pollutant (including any major source of fugitive emissions of any such pollutant, as determined by rule by the Administrator)."⁴² However, fugitive emissions of a stationary source will not be considered in determining whether it is a major stationary source unless the source belongs to one of the listed categories.⁴³ In addition to the 26 specific categories, the list also includes "all other stationary source categories regulated by a standard promulgated under section 111 or 112 of the Act, but only with respect to those air pollutants that have been regulated for that category."⁴⁴ Therefore, the Title V permitting process requires source categorization to determine the scope of the source and whether fugitive emissions should be counted toward the total emissions.

[] Regulated Air Pollutants. A source must emit a "regulated pollutant" to be subject to the Title V program. Additionally, emissions of regulated pollutants determine the permit fees imposed on a source under the permitting program. Regulated air pollutants are defined at 40 C.F.R. § 70.2, including⁴⁵:

. NO_x and VOCs;

. pollutants with promulgated NAAQS (PM[10], PM less than 2.5 microns in diameter, sulfur dioxide (SO₂), ozone, nitrogen dioxide (NO₂), CO, and lead);

[33 ELR 10820]

. pollutants subject to NSPS under CAA § 111;

. air toxics subject to CAA § 112; and

. Class I and II substances under the stratospheric ozone program in CAA Title VI.

Note that "if a pollutant is regulated for one source category by a standard or other requirement, then the pollutant is considered a regulated air pollutant for all source categories."⁴⁶ The exception to this rule is when a pollutant is regulated under § 112(g)(2) as a case-by-case maximum achievable control technology (MACT) determination under the toxics program. Additionally, states may add air pollutants for regulation if they choose.

There are several exclusions when applying this definition to fee calculations only. For purposes of determining a permit fee under 40 C.F.R. § 70.9(b)(2), CO, pollutants regulated solely by virtue of classification as a Class I or II substance under CAA Title VI, and pollutants regulated solely because it is subject to CAA § 112(r) prevention of accidental release provisions are not counted in the fee determination.⁴⁷

As previously discussed, all major sources are subject to the Title V permit requirements, and therefore it is important to determine what constitutes a "regulated air pollutant" for major source classification under CAA § 302(j). The definition itself is written broadly,⁴⁸ but EPA has determined that a narrow interpretation is consistent with congressional intent and limits the definition to all pollutants subject to regulation, i.e., control of emissions, under the CAA.⁴⁹ This approach parallels the interpretation given under the PSD program.⁵⁰

Avoiding Title V: Synthetic Minors

A source that wishes to avoid Title V coverage altogether may opt for state non-Title V programs or other EPA programs that limit the PTE or provide enforceable limitations and/or criteria that enable the source to avoid Title V applicability. For example, a new source subject to best achievable control technology or lowest achievable emission rate under PSD or NSR programs that limits the emissions to below the major source threshold amounts may escape Title V coverage.⁵¹ Sources that do so are referred to as synthetic minor sources. This approach can prove to be a costly gamble, however. If the source fails to comply with those synthetic limitations or it is shown that the limitations were fraudulent, then EPA or the state may bring an enforcement action for operating without a permit, which may be applied retroactively from the date when the source should have acquired the permit.⁵² Additionally, a source may choose to obtain a Title V permit⁵³ and use the enforceable limitations in the operating permit to preclude coverage in other programs, such as NSR. This carries the same risk of enforcement for fraudulent permitting, however.

Application Requirements

General Requirements

Permit applications should "contain information to the extent needed to determine major source status, to verify the applicability of part 70 or applicable requirements, and to compute a permit fee (as necessary)."⁵⁴ A source that is subject to a permit program must obtain a permit on the date of permit program approval or the date the source falls under the purview of the permit program.⁵⁵ A source must apply for an operating permit within one year of when the source becomes subject to the program after EPA grants full, partial, or interim approval of the state program.⁵⁶ If a source requires a PSD or NSR permit under the preconstruction review programs of parts C or D or must meet the requirements of § 112(g), i.e., HAP source modifications, the source must obtain an operating permit or permit revision within one year of commencing operation after the state obtains either full, partial, or interim approval for their program.⁵⁷ Sources subject to the acid rain Phase II program were required to submit an application by January 1, 1996, for SO₂ and January 1, 1998, for NO_x.⁵⁸

Permit renewals must be filed at least 6 months before permit expiration, and this requirement may be extended out to 18 months if a state chooses.⁵⁹

[] General. A permit application must contain⁶⁰:

. identifying information for the facility, such as name, address, telephone number, contact individual at site, and owner;

. a description of the source's products and processes by SIC code;

. all emissions for a major source;

. all emissions of regulated air pollutant;

. description of all points of emissions and emissions rates;

. description of fuels, raw materials, production rates, and operating schedules;

. identification and description of air pollution control equipment and compliance monitoring devices;

. limitations on source operations or work practice standards;

[33 ELR 10821]

. description of all applicable requirements;

. description of applicable test methods for each requirement;

. explanation of proposed exemptions;

. a compliance plan that includes:

1. a statement that sources currently in compliance will continue to comply;

2. a statement that sources becoming subject to requirements will meet those requirements; and

3. a statement and plan of how sources not in compliance will achieve compliance;

. a compliance schedule, including certification reports at least every six months; and

. certification by a responsible official that the application is true, accurate, and complete.

EPA's White Paper Number 1, released on July 10, 1995, offers guidance as to how each of these requirements can be met.⁶¹ For example, the guidance "enables and encourages" the use of:

. tpy estimates for emissions units only where meaningful and these may be based on generally available information rather than new studies or testing;

. emissions descriptions rather than estimates for emissions not regulated at the source (unless required for fee calculations, permit shield, major source determinations, or plantwide applicability determinations);

. checklists for emissions from insignificant activities;

. exclusions for trivial or insignificant activities;

. group treatment for certain activities;

. the operating permit process to reconcile existing NSR and federally enforceable terms with the Title V permit;

. citations for applicable requirements with qualitative descriptions for emissions units; and

. certifications of compliance status which do not require re-evaluation of previous applicability decisions.⁶²

Permit revision applications need only contain information relevant to the change.⁶³

"Unless the permitting authority requests additional information or otherwise notifies the applicant of incompleteness within 60 days of receipt of the application, the application shall be deemed complete."⁶⁴ The applicant has a duty to supplement and correct the application when the applicant becomes aware of incorrect information.

The permitting authority has 18 months to act on a completed permit application.⁶⁵ The failure of the permitting authority to act within the specified time period is deemed a final action by the agency and subject to review in state court.⁶⁶ CAA § 503(d) provides an application shield that protects a source from violations for operating without a permit between the time a completed application is submitted and the time a final decision is made by the permitting authority.⁶⁷

The requirement of certification by a responsible official⁶⁸ is not a superficial one. This signature is often known as the "designated felon" signature because the responsible official is legally responsible in an enforcement action. Therefore, the responsible official should be someone who understands the Title V process and the judgment calls that underlie the information in the permit.⁶⁹

[] Conditions. Under Title V permits, facilities must agree to conditions regarding emissions. The stipulations are based on prohibitions under the state programs that are written into facility permits. One of the main conditions in permits is the prohibition against circumvention. Facilities are not allowed to use any plan, activity, or device to conceal or appear to minimize emissions in order to circumvent any state or federal regulations. Also, facilities are not allowed to circumvent any emission control devices that are required under the permit. Other prohibitions can include:

. violating any provision of the CAA or regulations;

. operating air emission sources without a permit (with exceptions);

. operating a source out of compliance with emission standards unless authorized by permit;

. open burning (with exceptions);

. falsifying information in permits or reports; and

. creating a nuisance such as odors.

Each state program usually includes prohibitions or conditions such as these, but they can also include other stipulations involving specific areas, such as the burning of used oil. The applicable stipulations should be included in the individual facility's permit.

[] Insignificant Units and Activities. EPA may approve a list of "insignificant activities and emissions levels" that do not have to be included in a permit application as long as the omitted information is not required for applicable requirement determinations nor for fee calculations.⁷⁰ This policy is a significant exception for many businesses, given the expanded definition of regulated air pollutant. EPA realized that "in many cases these pollutants are emitted in amounts of no significance to air quality management," and that it would be "unduly burdensome" to require applicants to quantify and account for all emissions.⁷¹ The compilation of this list is solely the responsibility of the states so that states [33 ELR 10822] can address their unique air quality management issues effectively,⁷² although EPA must ultimately approve the list. EPA has published a list of examples of activities that it considers trivial and insignificant to serve as a starting point for states.⁷³

[] Generic Applicable Limits. In addition to specific limitations incorporated into a facility's Title V permit, states also include generic applicable limitations that apply to all sources subject to Title V. One of the most widely used generic limitations is the opacity standard. An opacity standard generally prohibits the visible emission of smoke and other PM. For example, under the Illinois code, visible emissions cannot exceed an opacity of 30%, even during startups and malfunctions.⁷⁴ Another way that states impose generic limitations is through the use of process weight rates. Under the Colorado Air Quality Control Commission Regulations, owners and operators of all manufacturing processes must limit the emissions of PM (and SO₂ if applicable) from the process into the atmosphere depending on the process rate weight of the equipment.⁷⁵ Agencies provide tables containing the process weight rates for facilities to use. The process weight rate is generally defined as "the actual weight or engineering approximation thereof of all materials except liquid and gaseous fuels and combustion air, introduced into any process per hour."⁷⁶

[] Trivial Activities. Pursuant to EPA's White Paper Number 1, certain activities may be treated as trivial activities and presumptively omitted from Title V permit applications.⁷⁷ By omitting these trivial activities from the permit application, the facility does not have to count emissions from these activities in their emissions inventories. Based on this list, many states have adopted a list of trivial activities into their air permitting regulations. States can either use the list provided by EPA or modify the list as appropriate since EPA's list is "intended to exclude many similar activities" from Title V permitting.⁷⁸ The following is a sampling of what EPA considers trivial activities⁷⁹:

. emissions from mobile sources and landscaping equipment;

. air conditioning and ventilating units used for human comfort;

. noncommercial food preparation;

. consumer use of office equipment and products;

. janitorial services and laundry activities;

. bathroom vent emissions and tobacco smoking rooms and areas;

. plant maintenance and upkeep activities not associated with manufacturing;

. portable electrical generators;

. hand-held equipment for buffing, polishing, cutting, drilling, etc.;

. storage tanks that will not emit any VOC or HAP;

. vents from continuous emissions monitors and other analyzers;

. equipment used for surface coating, painting, spraying operations that do not emit any VOC or HAP;

. bench-scale laboratory equipment;

. process water filtration systems and demineralizers with water tanks and vents;

. boiler water treatment operations, not including cooling towers;

. fire suppression systems; and

. steam vents and safety relief valves, steam leaks, cleaning operations, sterilizers.

Emissions Inventory

The most onerous task of preparing an operating permit application is completing the emissions inventory, which can take up to one-half of the time needed to prepare the application.⁸⁰ The AP-42 manual provides emission factors that can be used in calculating PTE, but sources should understand that the AP-42 emission factors represent averages.⁸¹ Quantifying emissions with averages requires balancing the risk of underestimating and possibly violating the permit with overestimating and the payment of higher permit fees and/or subjection to more stringent control requirements. "Sources should include disclaimers in the inventory for those results that are calculated and not based on actual measured emissions" that may help serve as evidence in establishing compliance.⁸²

Compliance Requirements

States also require facilities to provide compliance-related information in their permit applications. Compliance-related information usually includes a compliance plan, what type of monitoring will be used, and compliance certification.

[] Compliance Plan. All sources subject to the Title V permitting requirements must submit a compliance plan with its application.⁸³ The compliance plan must contain: the compliance status of the source; a statement that the source will continue to comply with requirements it is in compliance with; a statement that the source will timely comply with new requirements; a description of how the source will achieve compliance; and a compliance schedule.⁸⁴ For sources not in compliance with any requirements, the compliance [33 ELR 10823] schedule will consist of enforceable actions with milestones for remedial measures that will lead to compliance.⁸⁵ The schedule must include deadlines for the remedial actions and a date for full compliance. This schedule must be at least as strict as any administrative order or judicial consent decree.⁸⁶ Even with a compliance schedule in place a source can still be subject to an enforcement action for violating the underlying requirement. For sources required to have a compliance schedule, the facility must submit certified progress reports to the agency at least every six months according to the compliance schedule.⁸⁷

[] Compliance Certification. Part 70 of the regulations also requires that facilities submit a compliance certification with their permit applications.⁸⁸ Thus, for each applicable requirement, the applicant must certify, under penalty of law, whether or not the source is in compliance. The compliance certification must include: a certification of compliance with all applicable requirements by a responsible corporate official; a statement of the methods used for determining compliance; a schedule for submitting compliance certifications during the permit term; and a statement regarding the compliance status of the source with any enhanced monitoring and compliance certification requirements.⁸⁹

For certification, a facility must review the CAA, all state and federal regulations, all permit requirements, and all SIP provisions to determine which requirements are applicable and whether or not the facility is in compliance with the applicable requirements. If the facility is not in compliance with all the requirements, then it must submit a compliance plan to meet those requirements. Compliance certification will be based on emissions data submitted with the application that demonstrate compliance during a particular time period. If a facility is uncertain whether it will remain in compliance for the permit period, the facility may want to be proactive and submit a compliance plan to implement changes in the future to ensure total compliance.

The compliance certification must be certified by a responsible corporate official who must certify that all the information in the application is correct by certifying the truth, accuracy, and completeness of the information.⁹⁰ Under the definitions, a responsible corporate official means:

[A] president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation, or a duly authorized representative of such person if the representative is responsible for the overall operation of one or more manufacturing, production, or operating facilities applying for or subject to a permit and either:

(i) the facilities employ more than 250 persons or have gross annual sales or expenditures exceeding $ 25 million (in second quarter 1980 dollars); or

(ii) the delegation of authority to such representatives is approved in advance by the permitting authority.⁹¹

EPA has proposed to change the certification language under Title V to match the language in the acid rain program where the person signing the application would certify under penalty of law that the information provided is true, accurate, and complete.

Monitoring Requirements

Under the operating permit rules, Title V sources must meet three basic reporting and recordkeeping requirements: periodic monitoring; reporting; and compliance certification. Periodic monitoring is the basic requirement for Title V reporting, while compliance assurance monitoring (CAM) increases the monitoring, reporting, and recordkeeping requirements for major sources subject to the rule.

[] CAM. Certain emission units at Title V sources are subject to additional requirements under the CAM rule. Under the final CAM rule, sources must submit a CAM plan for monitoring the performance of pollutant-specific emissions units (PSEUs).⁹² CAM obligations are triggered if the major source satisfies all of the following criteria:

. is subject to a federally enforceable emissions limitation or standard for a pollutant for which the source is major;

. achieves compliance with such emissions limitation or standard by use of a control device;

. has the PTE, before controls, an amount greater than or equal to the amount in tons pre-year required for the site to be classified as a major source under Title V; and

. is not otherwise exempt from CAM.⁹³

[] Periodic Monitoring. All Title V sources must conduct periodic monitoring for every applicable requirement using the terms, test methods, units, averaging periods, and statistical methods consistent with the requirements in 40 C.F.R. § 70.6(a)(3). The requirements for periodic monitoring are discussed further in this Article in the permit contents section.

Permit and Application Shields

Permit and application shields allow the facility to submit and have reviewed an application for a permit without being in violation of operating without a permit. However, this allowance is not automatic and the owner or operator needs to take the necessary steps to obtain a permit or application shield.

[] Application Shield. If an applicant has submitted a timely and complete application for a Title V permit, and the agency has not yet acted on that permit, the source's failure to have the permit is not a violation of the CAA unless the delay in final action is due to the failure of the applicant to [33 ELR 10824] timely submit required information to the permitting authority.⁹⁴ The application shield does not, however, affect "the requirement that any source have a preconstruction permit under title I of the Act."⁹⁵ Thus, the application shield will not protect a source that is constructing if the construction requires a preconstruction review permit.

[] Permit Shield. When a source has a permit, compliance with the permit is deemed compliance with all "applicable requirements" as of the date of permit issuance if: (1) the permit specifically includes and identifies the applicable requirements; or (2) the permitting authority makes an explicit determination that other provisions (referred to in the determination) are not applicable.⁹⁶ The permit shall not shield or otherwise lessen the Administrator's authority under § 7603 (emergency orders), liability for previous violations, applicable requirements of the acid rain program, compliance with EPA information requests, or the authority of the director to requirement compliance with new applicable requirements adopted after the permit is issued.⁹⁷ A permit that does not expressly state that a permit shield exists is presumed not to provide a shield.⁹⁸ Therefore, the owner or operator needs to be sure to request a permit shield.

Streamlining Applications

A source may choose to streamline its application and permit by grouping multiple requirements into a single set of terms.⁹⁹ "The overall objective would be to determine the set of permit terms and conditions that will assure compliance with all applicable requirements for an emissions point or group of emissions points so as to eliminate redundant or conflicting requirements."¹⁰⁰ Streamlining an application requires cooperation and mutual assent from both the applicant and the permitting authority. This approach may be used in the initial formulation of the draft permit and as a way to alter an already completed application without a formal amendment.

Streamlining requires a demonstration of adequacy. This adequacy determination is discussed in detail in EPA's White Paper Number 2, but to summarize, the streamlined requirements must assure "compliance with all applicable requirements it subsumes."¹⁰¹ Streamlining involves an eight-step process for the applicant and permitting authority:

. Step One—Compare all applicable requirements to be streamlined and those that are currently applicable, distinguishing between compliance, monitoring, and work practice provisions.

. Step Two—Determine most stringent emissions standard for each emission unit pollutant combination.

. Step Three—Propose a single set of permit terms to include most stringent emissions limitation and applicable monitoring, reporting, and recordkeeping.

. Step Four—Certify compliance.

. Step Five—Develop a compliance schedule.

. Step Six—Propose a permit shield for streamlined requirements.

. Step Seven—Permitting authority determines adequacy of proposal.

. Step Eight—Permitting authority must note use of streamlining to EPA and the public.¹⁰²

Permitting Process

Preparing and evaluating an operating permit is a time-consuming and complicated job for both the applicant and the permitting authority. For the permit application, the source must assemble background information and emissions data, develop compliance and monitoring plans, assess past compliance, and anticipate future requirements. Submitting the application is only the beginning because the source should continue to work with the permitting authority during review of the application and drafting of the permit.

Trigger Dates, Due Dates, and the Application Shield

A part 70 operating permit program becomes effective as a matter of law on the date of EPA approval or the EPA promulgation date.¹⁰³ After a program becomes effective, sources are given a certain amount of time to apply for a permit. Generally, a permit application must be submitted within 12 months after a source becomes subject to the permit program, though a permitting authority may establish an earlier deadline for application submissions.¹⁰⁴ In addition, a modified source that qualifies as a major source must submit an application within 12 months of commencing operation or earlier if required.¹⁰⁵ A source with a Title V permit that is modified so that it becomes subject to a new program must revise the permit within the specified time frame. However, if the permit prohibits such a modification, the source must obtain the permit revision before commencing operation.¹⁰⁶

Title V permits cannot be issued for more than five years except permits for municipal waste incineration units.¹⁰⁷ When a permit expires, the source's right to operate is terminated unless a timely and complete renewal application has been submitted.¹⁰⁸ A source is required to submit its renewal application 6 months prior to the expiration date, and a state can require an earlier submission but not earlier than 18 months before expiration.¹⁰⁹

[33 ELR 10825]

After a source submits its permit application or renewal application, the source is covered under the application shield. This means that if a source submits a timely and complete application while it awaits final action by the permitting authority, the source cannot be held in violation of operating without a permit.¹¹⁰ However, the application shield ceases to apply if the source fails to submit any additional information deemed to be needed to complete the application by the specified deadline.¹¹¹ If the state does not issue or deny the renewal permit prior to the expiration of the original permit, then the agency can either extend the permit term until the renewal permit is issued or denied, or state that all terms and conditions of the permit, including the permit shield, will remain in effect until the renewal permit is issued or denied.¹¹²

Public Notice-and-Comment Proceedings and Public Participation

"All permit proceedings … shall provide adequate procedures for public notice including an opportunity for public comment and a hearing on the draft permit."¹¹³ "Adequate procedures" includes notice by publication in general circulation newspapers and by the permitting authority's mailing list. The notice must identify the source facility and include information regarding how to obtain the draft permit, application, and any other relevant information to the permit process. A hearing is not automatically required, but may be required under certain rules, such as when a specified number of interested parties request a hearing. The permitting authority must provide at least 30 days for public comment and give at least 30 days' notice prior to any scheduled public hearing.

EPA Opportunity to Object

Under CAA § 505(a)(1), the state permitting authority must transmit to EPA (usually the regional office) a copy of the permit application, draft permit, and final permit. Upon an agreement with EPA, a summary of the application and compliance plan may be provided rather than the whole application.¹¹⁴

Section 505(b) governs EPA objections. If EPA determines that the permit does not comply with the CAA or the SIP, then EPA must notify both the state permitting authority and the applicant in writing of its objections. These objections must be made within 45 days. If there is no objection, then the permit may be issued by the permitting authority. Within 60 days after this 45-day review period, any person may petition EPA to object to the permit. The petition must "be based only on objections … that were raised with reasonable specificity during the public comment period provided by the permitting agency …."¹¹⁵ EPA has 60 days to grant or deny the petition. Any denial is subject to judicial review. Note that a petition itself does not affect the permit if it has already been issued.

A permit may not be issued if EPA objects. The permitting authority must either modify, terminate, or revoke the permit within 90 days.¹¹⁶ If this time period passes without such action, EPA may issue or deny the permit. The initial 90-day period may be extended for another 90 days if EPA determines that further information is required.¹¹⁷ Only the final action to issue or deny a permit is judicially reviewable.

For nonmajor source categories, EPA may waive the § 505 notification requirements.¹¹⁸

Affected State Review

The state permitting authorities must receive and review the Title V permitting applications for completeness and accuracy. Besides providing copies of permit applications to EPA for review, the agency must notify all affected states of each draft permit submitted for public comment. Affected states are states within 50 miles of the permitted source and other adjacent states whose air quality may be affected.¹¹⁹ After reviewing the draft permit, the affected states may make recommendations to the permitting authority, and if the permitting authority does not adopt the recommendations, then the authority must provide its reasoning in writing to the affected state and EPA.¹²⁰

Judicial Review

States that receive approval to run an operating permit program must provide judicial review. In these states, state court review is the sole means of review—no challenges may be brought in federal court except for EPA's failure to veto.¹²¹ Review is available to the applicant, anyone who participated in the public participation process, and "any other person who could obtain judicial review of such actions under State laws."¹²² This list includes anyone who would have Article III standing under the U.S. Constitution. Challenges to the permit must be filed within 90 days of final permit action or within 90 days of when new grounds arise. This 90-day limit may be shortened by the state. Note that this deadline may arise before completion of a petition to the EPA Administrator for permit review and denial under CAA § 505(b)(2). "Thus, a state court challenge may have to be filed without waiting for an EPA response if the right to judicial review is to be preserved."¹²³

In 1994, EPA disapproved Virginia's state permit program for failing to provide for adequate judicial review.¹²⁴ [33 ELR 10826] Virginia had attempted to limit judicial review to those who had "pecuniary and substantial" interests. The U.S. Court of Appeals for the Fourth Circuit upheld EPA's disapproval and ruled that the Virginia proposal did not comply with the CAA.¹²⁵

After the expiration of the applicable review provisions for the permit, permit terms and conditions may not be challenged in a subsequent enforcement action.¹²⁶

General Permits

CAA § 504(d) allows permitting authorities to issue general permits covering numerous similar sources. A source covered under a general permit is still subject to the substantive requirements of 40 C.F.R. part 70 and must still file an application with the permitting authority.¹²⁷ A general permit may not be used for affected sources under the acid rain program.¹²⁸ There must be public participation, i.e., notice-and-comment proceedings, in the formulation of the general permit, but not for a source application under the general permit. The permit program must be submitted to EPA for approval under either SIP or CAA § 112 authority.¹²⁹ The general permit program must require that

. general permits apply to a specific and narrow category of sources;

. sources opting for general permit coverage provide notice and reporting requirements;

. general permits restrict PTE through specific and technically accurate limits;

. general permits contain specific compliance monitoring requirements;

. general permit limits are based on practically enforceable averaging times; and

. violations of the general permit are violations of state and federal law and may result in major source coverage.¹³⁰

"The primary purpose … is to provide an alternative means for permitting sources for which the procedures of the normal permitting process would be overly burdensome, such as area sources under section 112."¹³¹ General permits may be used to cover source categories and small businesses as well as discrete emissions units at industrial complexes and major sources.¹³²

EPA has listed three main considerations for sources that desire to be covered under a general permit:

First, categories of sources covered by a general permit should be generally homogenous in terms of operations, processes, and emissions. All sources in the category should have essentially similar operations or processes and emit pollutants with similar characteristics. Second, sources should not be subject to case-by-case standards or requirements…. Third, sources should be subject to the same or substantially similar requirements governing operations, emissions, monitoring, reporting, or recordkeeping.¹³³

Note that regardless of any permit shield provisions, if a source is later determined to not qualify for the general permit, e.g., submission of false or misleading data, the source is subject to enforcement for operating without an operating permit.¹³⁴ Individual sources may be issued an individual permit or a certification letter by the permitting authority. Revisions to general permits follow the same revision procedures as other part 70 permits. Additionally, the issuance or denial of a general permit by the permitting authority to a source is not a "final action" subject to judicial review.¹³⁵

Temporary Sources

A source that changes location at least once during the term of a permit may be eligible for a temporary source permit. This is a "single permit authorizing emissions from similar operations by the same source operator at multiple temporary locations."¹³⁶ Affected sources, however, are not eligible for a temporary source permit. These permits must contain conditions that provide for: (1) compliance with 40 C.F.R. part 70 requirements; (2) compliance with all applicable requirements at each location; and (3) the owner or operator to notify the permitting authority at least 10 days in advance of a location change.¹³⁷

Title V Interface With Other Programs

The Accidental Release Prevention Program

Permitting authorities under Title V have certain responsibilities regarding the accidental release prevention program.¹³⁸ The Title V permitting authority does not review the adequacy of the accidental release prevention plan but only the content of the plan as required under 40 C.F.R. part 68. The air permitting authority defined specific responsibilities in 40 C.F.R. § 68.215(e). These are:

. verifying the source has registered a risk management plan (RMP);

. verifying the source has submitted a source certification;

. ensuring compliance through records review or inspections; and

. initiating enforcement actions when necessary.

Registering the plan and ensuring compliance through a records review can both be accomplished by accessing [33 ELR 10827] EPA's RMP information database, which is available to the implementing agency from EPA. Ensuring source certification is achieved through checking the Title V permit application. The permitting authority may delegate these responsibilities, but "in no circumstance can a permitting authority absolve itself of the responsibility for ensuring that the activities are performed."¹³⁹ Any fees associated with implementing these responsibilities are recoverable under the Title V fees program.

The NSR Program

One of the fundamental principles behind the operating permit program is to put all the source's requirements into one document. With that goal in mind, permitting authorities may integrate the preconstruction review requirements under NSR into the operating permit.¹⁴⁰ Therefore, if NSR follows the procedural and compliance-related requirements of the operating permit program, e.g., EPA and affected state review, then an "existing Title V permit can be administratively revised to reflect the results of the integrated NSR process."¹⁴¹ However, the probability remains high that the NSR program will lack substantially similar requirements, and that the source will require a Title V permit review for its preconstruction permit under NSR.

HAPs and § 112

One of the requirements of the state program submittal to EPA is a legal opinion affirming that the state has the authority to implement the CAA § 112 air toxics program.¹⁴² This means the state must be able to accept delegation to impose and enforce MACT, generally achievable control technology, and residual risk analyses. The state must also be capable of implementing case-by-case MACT determinations for sources where EPA fails to issue a categorical standard within 18 months of the deadline. However, sources that only emit HAPs may be covered by a general permit, if applicable.

Section 112(g)(2) and (3) states that no person shall construct, reconstruct, or modify a HAP major source without ensuring that the MACT determinations are met and included in the operating permit. As of October 16, 2000, states could enact an "equivalency by permit" program that allows states to include permit terms and conditions that supplant federal HAP standards through the Title V permit.¹⁴³

Acid Rain Program

The acid rain provisions in Title IV are to be implemented through the Title V operating permit program in conjunction with the acid rain permit program.¹⁴⁴ For "affected sources" under Title IV, the Title V permit must include prohibitions against emissions beyond the allowances granted in accordance with Title IV, and the operating permit application must include the standardized acid rain forms if applicable. Additionally, permits "issued to implement [Title IV] shall be issued for a period of 5 years, notwithstanding [Title V]."¹⁴⁵ CAA § 403(f) states that allowances may be "received, held, and temporarily or permanently transferred" under the acid rain program regardless of the operating permit as long as the affected unit does not emit more than the allowances grant. Nothing in the Title V provisions may affect allowances for affected units,¹⁴⁶ and the acid rain provisions cannot affect compliance with requirements under other sections of the CAA.¹⁴⁷

Title V Operating Permit Content

Given the extensive list of requirements that Title V permits must address, it is not surprising that the permit contents are considerably more detailed and exacting, particularly on monitoring, recordkeeping, and reporting, than most other permits. This part of the Article examines the detailed content requirements for a Title V permit. Section 504 of the CAA Amendments of 1990 states that

each permit issued … shall include enforceable emission limitations and standards, a schedule of compliance, a requirement that the permittee submit to the permitting authority, no less often than every 6 months, the results of any required monitoring, and such other conditions as are necessary to assure compliance with applicable requirements of this chapter, including the requirements of the applicable implementation plan.¹⁴⁸

The final rule for the operating permit program enumerates nine requirements for permit content:

. a fixed term or duration;

. limits and conditions to assure compliance with all applicable requirements;

. a schedule of compliance;

. inspection, monitoring, recordkeeping, reporting, and compliance certification requirements to ensure compliance with permit terms and conditions;

. reopening conditions for major sources;

. provisions for permit revision, termination, modification, or reissuance;

. provisions ensuring operational flexibility allowing for minor changes without a "revision" under certain circumstances;

. provision that nothing in the Title V permit affects allowances under the acid rain program; and

. provision that all alternative operating scenarios be identified by the source and included in the permit.¹⁴⁹

[33 ELR 10828]

Each term or condition in the permit must reference the authority for that term.¹⁵⁰ Additionally, the permit must include standard provisions for inspection and entry, a severability clause, and similar boilerplate language.¹⁵¹

Emission Limits

Emissions limits in permits "translate generally applicable standards and duties into source-specific emission limitations."¹⁵² The permit must contain the limitation on emissions as determined by the applicable standard. Applicable standards include, at a minimum, limits imposed by NSPS issued for sources under CAA § 111, sources subject to regulation under the HAP regime in § 112, incineration standards under § 129, limits under the acid rain and ozone sections (Titles IV and VI, respectively), reviews of major sources and new sources for PSD under § 165, limits under the SIPs, and any other applicable standard. The actual numeric limitations are found scattered throughout the Federal Register, Code of Federal Regulations, and state regulations codified into the SIP. The NAAQS generally are not included in the emissions limitations for major sources—these requirements are implemented through the SIP. NAAQS generally are not "applicable requirements" for Title V operating permit purposes. However, NAAQS and requirements under visibility standards are considered "applicable requirements" for temporary sources.¹⁵³

One issue that frequently arises is differences between currently applicable state law and regulations and those approved for inclusion in the SIP.¹⁵⁴ These differences arise because states and local air pollution control authorities are constantly in the process of revising their regulations and submitting some, but not all, of these revisions to EPA for inclusion in the SIP. In many cases, there will be delays between when a SIP revision is submitted and when EPA approves it.¹⁵⁵ Whether a rule is SIP-approved is important because EPA "only recognizes and can only enforce the SIP-approved rules."¹⁵⁶ How the differences between state law requirements and SIP-approved requirements are handled depends on several factors.

If the permitting authority is only including federally applicable requirements in its Title V permit program, which is permissible, although rare, only the approved SIP language would be included in the permit because the revised state law or regulation is not part of the SIP and hence not a federally enforceable requirement that must be included in the permit. There is no question about state-only requirements because they are not included in the permit.

If the permitting authority is including both state and federally applicable requirements in its Title V permit program, which is usually the case, the permitting authority may elect to take one of the following approaches. First, permit authorities may base the permit on the state rule if the rule has been submitted for SIP approval and is equivalent to or more stringent than the currently enforceable SIP requirement.¹⁵⁷ Second, if the state rule is less stringent than the SIP or differs significantly, then the permit must incorporate the SIP-approved rule and the state rule until the state rule is approved in the SIP.¹⁵⁸ Third, if the state rule is not intended to be included in the SIP, or if the permitting authority does not wish to make the state rule federally enforceable, the state rule may be included in the permit and designated a "state-only" condition. As a state-only condition, it would not be enforceable by EPA or citizens groups under the federal CAA.

Regardless of the approach taken, the permitting authority must identify the origin and authority for each term and condition included in the permit and identify any differences in the form included in the permit from that set forth in the underlying applicable requirement.¹⁵⁹ Where the applicable SIP or standard allows an "equivalency" determination, the permit must contain provisions to ensure that any resulting emissions limit has been demonstrated to be quantifiable, accountable, enforceable, and based on replicable procedures.¹⁶⁰ Finally, where other applicable requirements under the federal CAA are more stringent than acid rain provisions under Title IV, the permit must include both as federally enforceable conditions.¹⁶¹

Permit Duration

An operating permit under Title V may be issued for a term up to five years.¹⁶² For affected sources under the acid rain program of Title IV, the permit shall issue for a five-year term.¹⁶³ Solid waste incinerators subject to regulation under CAA § 129(e) may have an operating permit for a period up to 12 years, with a review every 5 years.¹⁶⁴ Prior to permit expiration, a source should submit an application for permit renewal.

Monitoring, Recordkeeping, and Reporting

The permit content requirements for monitoring, recordkeeping, and reporting are found at 40 C.F.R. § 70.6(a)(3).¹⁶⁵ Emissions units at sources are often subject to different requirements under different emissions regulations, and the monitoring requirements of each standard to which the source is subject must be included in the permit.¹⁶⁶

These monitoring requirements break down into three major divisions: (1) monitoring required by a specific applicable requirement, such as an NSPS, NESHAP, or SIP provision; (2) CAM applicable to certain large emissions units using control devices; and (3) periodic monitoring or "gap-filling" requirements where there is either no monitoring or [33 ELR 10829] inadequate monitoring in the applicable requirement(s) and CAM does not apply.

Monitoring, Recordkeeping, and Reporting Required by an Applicable Requirement

The Title V program is very clear that all monitoring and testing requirements set forth in an applicable requirement must be specified in the permit.¹⁶⁷ If more than one monitoring or testing recordkeeping or reporting requirement applies to a particular emissions unit or operation, sources and permitting authorities have the option of "streamlining" those requirements. Streamlining is permissible if the new, single set of monitoring or testing requirements "is adequate to assure compliance at least to the same extent as the monitoring or testing applicable requirements that are not included in the permit as a result of such streamlining."¹⁶⁸ Streamlining is often used for opacity standards (where visible emissions observation for a lower opacity standard gives clear assurance that a higher opacity standard is also being met) and other standards to minimize duplicative monitoring, recordkeeping, and reporting.

CAM

CAM applies to emissions units that, before controls, exceed the applicable "major source" threshold. CAM is authorized by § 504(b) of the federal CAA. The applicability of CAM, the development of a CAM plan, and related issues are discussed below.

Some standards require little or no testing, such as certain NSPS or SIP provisions, although they may have a testing reference method. In these cases, the permit must require some form of periodic monitoring, even if noninstrumental testing or monitoring is involved, and recordkeeping itself may satisfy the monitoring requirement.¹⁶⁹

The permitting authority maintains broad discretion in establishing these periodic monitoring requirements.¹⁷⁰ Continuous emissions monitoring is not required under Title V if "alternative methods are available that provide sufficiently reliable and timely information for determining compliance."¹⁷¹ The permit may also allow streamlining of the monitoring requirements as long as the monitoring or testing assures compliance.¹⁷² Testing requirements must be EPA-approved. For insignificant emissions units,¹⁷³ if a regular program of monitoring would not "significantly enhance" compliance assurance, then no monitoring is required.¹⁷⁴

The permit must include all recordkeeping requirements. Records for monitoring must include:

. the date, place, and time of sampling or measurements;

. the date analyses were performed;

. who performed analyses;

. analytical techniques or methods used;

. results of analyses; and

. operating conditions at the time of sampling or measurement.¹⁷⁵

Reports of monitoring must be submitted at least every six months, and records must be retained for five years. Any deviation from permit requirements must also be reported, and all of these reports and records must be signed and certified by a responsible official.

On October 22, 1997, EPA published the CAM rule.¹⁷⁶ The CAM rule is designed to fulfill monitoring requirements contained in Title V (and Title VII).¹⁷⁷ Sources subject to the rule must follow established criteria in monitoring the operation and maintenance of control equipment so as to provide reasonable assurance of compliance with applicable emission standards, and report to state and local regulators whether or not they are in compliance. The CAM requirements satisfy the periodic monitoring requirements.

[] Applicability. Whether a facility is subject to the CAM rule is determined on a pollutant-by-pollutant basis for each "emissions unit." The CAM rule adopts by reference the part 70 definition of "emissions unit" to mean "any part or activity of a stationary source that emits or has the [PTE] any regulated pollutant or any pollutant listed under section 112(b) of the Act [HAPs]."¹⁷⁸

In addition, the CAM rule only applies to those PSEUs that use a "control device" to achieve compliance with an "applicable emission limitation or standard." The rule narrowly defines "control device" to mean "equipment, other than inherent process equipment, that is used to destroy or remove air pollutant(s) prior to discharge in the atmosphere," while "applicable emission limitation or standard" is broadly defined to mean "any applicable requirement that constitutes an emission limitation, emission standard, standard of performance, or means of emissions limitation as defined under the Act."¹⁷⁹ However, CAM requirements do not apply to inherent process equipment "necessary for the proper or safe functioning of the process, or material recovery equipment."¹⁸⁰ In order to determine if the equipment is not a control device, the owner or operator must determine if:

(1) the primary purpose of the equipment is to control air pollution;

(2) the material recovery equipment makes economic sense or is it so costly that it would be deemed a pollution control device; and

(3) the equipment would still be installed if there were no air quality regulations in place.

[33 ELR 10830]

If the equipment is not primarily for air pollution control, it is cost effective, and it would still be installed even without the regulations, then it is inherent process equipment and not subject to the CAM requirements. Other CAM exemptions include emissions limits promulgated after November 15, 1990, under the NSPS or NESHAP programs, the federal acid rain program, and for minor sources under Title V.¹⁸¹ However, "applicable requirement" parallels the Title V definition and therefore limits the CAM rule to federally enforceable requirements.¹⁸²

Furthermore, units using control devices must have "potential pre-control device emissions" equal to or greater than the applicable major source threshold. Note that any emission reductions achieved by the control device are not taken into account, even if the owner or operator generally is allowed to do so under the regulatory definition of "PTE."¹⁸³ However, enforceable operating hour restrictions, throughput restrictions, control device efficiency factors, and similar enforceable restrictions are taken into account. These restrictions may help a unit escape the CAM applicability threshold.

To summarize, sources that satisfy all of the following criteria are subject to CAM:

. the source is subject to part 70 or part 71 for any pollutant, i.e., major source;

. the emissions unit is subject to a limitation or standard for the applicable regulated air pollutant (or a surrogate thereof) for which the source is major;

. the emissions unit uses a control device to achieve compliance with any such emission limitation or standard;

. the emissions unit has "potential pre-control device emissions" required to classify the unit as a major source; and

. the emissions unit is not otherwise exempt from CAM.¹⁸⁴

The CAM rule also provides several exemptions with respect to certain emission limitations or standards for which the underlying requirements already establish adequate monitoring and with respect to certain municipally owned utility units. The exempted emission limitations or standards are as follows:

. emission limitations or standards proposed by EPA after November 15, 1990, under the NSPS or HAPs programs;

. Title VI stratospheric ozone protection requirements;

. Title IV acid rain program requirements;

. requirements that apply solely under an approved emissions trading program;

. emission cap requirements under Title V; or

. emission limitations or standards for which a Title V permit specifies a continuous compliance determination method that does not use an assumed control factor.

The CAM rule also exempts backup utility power emissions units¹⁸⁵ that are municipally owned if the owner or operator provides documentation in a Title V operating permit application that

. the utility unit is exempt from all monitoring requirements in 40 C.F.R. part 75;

. the utility unit is operated for the sole purpose of providing electricity during periods of peak electrical demand or emergency situations and will be operated consistent with that purpose throughout the permit term; and

. the utility unit's actual emissions, based on the average annual emissions over the last three years of operation (or shorter time period for units with fewer than three years of operation), are less than 50% of the amount in tpy required for a source to be classified as a major source and are expected to remain so.

[] CAM Plan Requirements. The CAM rule requires owners and operators to develop and propose, through the Title V permit process, a CAM plan that satisfies specified criteria. An owner or operator must submit two general categories of information with a Title V permit application to propose a CAM plan; general information necessary to justify the appropriateness of the proposed monitoring; and information to justify the appropriateness of the indicator ranges to be used for reporting exceedances or excursions.¹⁸⁶ A CAM plan must contain:

. monitoring designed to obtain data for one or more indicators of emission control performance for the control device, any associated capture system and, if necessary, processes at a PSEU;

. an appropriate range or designated condition for each selected indicators such that operation within the range provides a reasonable assurance of ongoing compliance with emission limitations or standards for the anticipated range of operating conditions (including the detection of any bypass of the control device to the atmosphere);

. specifications for obtaining data that are representative of the monitored emissions or parameters;

. for new or modified monitoring equipment, verification procedures to confirm the operational status of the monitoring prior to the required monitoring commencement date;

. quality assurance and control practices that are adequate to ensure the continuing validity of the data;

. specifications for the frequency of monitoring, data collection procedures, and, if applicable, the period over which discrete data points will be averaged for the purpose of determining whether an excursion or exceedance has occurred;

. a justification for the proposed elements of the monitoring (some monitoring systems are presumptively acceptable such as continuous emission [33 ELR 10831] monitoring systems (CEMS), continuous opacity monitoring systems (COMS), and predictive emission monitoring systems (PEMS));

. control device (and process and capture system, if applicable) operating parameter data obtained during an applicable compliance or performance test (or its equivalent); and, if necessary,

. an implementation plan for installing, testing, and operating the monitoring.¹⁸⁷

The three basic elements of the CAM plan are the background information, the monitoring approach, and the justification. The background information provides information on the PSEUs including a brief description of the unit, applicable emission limit or standard, the applicable pollutant, and existing monitoring requirements under other programs.¹⁸⁸ The description of the monitoring approach in the CAM plan should include the general criteria, the performance criteria, and any special criteria. The general criteria include any performance indicators and/or indicator ranges along with the device for measuring the indicator.¹⁸⁹ The performance criteria include data representativeness, verification of operational status, quality assurance and quality control procedures, monitoring frequency, and data collection procedures.¹⁹⁰ Sources using a CEMS, COMS, or PEMS must include the applicable indicators, indicator ranges, performance criteria, and exceedance reporting procedures as special criteria.¹⁹¹ The owner or operator has to justify the choice of monitoring approach in the CAM plan by including information to demonstrate that the selected monitoring plan meets the requirements of the CAM rule. The justification must demonstrate that the control devices and processes achieve compliance with applicable emission limits and are maintained to minimize emissions.¹⁹² The justification step can be simplified by selecting a monitoring method based on EPA guidance, which is then considered as "presumptively acceptable monitoring."¹⁹³

Potentially acceptable monitoring methodologies for complying with CAM requirements can include CEMS, COMS, and PEMS. EPA suggests a five-step approach for selecting a monitoring method:

(1) summarize current monitoring procedures;

(2) evaluate current monitoring procedures to determine if they meet CAM criteria;

(3) determine if current monitoring procedures can be modified to meet CAM criteria;

(4) identify potential monitoring approaches that meet CAM criteria; and

(5) select the most reasonable approach that meets CAM criteria.¹⁹⁴

EPA has released technical guidance on CAM that includes examples of the types of monitoring that can be used to satisfy CAM requirements for various control devices and emission units, and provides case studies from actual situations.¹⁹⁵

If monitoring problems develop under the CAM plan, the owner or operator must take corrective action to restore proper operation. If there are too many corrective actions or if the source falls outside the monitoring range for extended periods (EPA has suggested 5% of measurements), then the source must develop a quality improvement plan (QIP) to improve the quality of the monitoring data or correct control equipment failure.¹⁹⁶ The Title V permit may include circumstances that will trigger a QIP requirement or EPA or a state agency may require a QIP based on available documentation or other information regarding CAM operation and maintenance.

CAM plans should be submitted with either the Title V permit application or the permit renewal depending on the unit size and the schedule in the regulations.¹⁹⁷ Large PSEUs, units whose PTE exceeds the major source threshold with emission controls operating, must submit the plan with the initial permit if the application has not been submitted by April 20, 1998.¹⁹⁸ Otherwise, if the source had an operating permit or complete application before April 20, 1998, the CAM submittal requirement is deferred until permit renewal.¹⁹⁹ However, the CAM plan submittal can also be required prior to renewal if the source applies for a significant modification to the permit or significantly modifies a pending application after the April 20, 1998, date.²⁰⁰ All other small emission units subject to CAM do not have to submit plans until the renewal of the operating permits.²⁰¹ The operating permit must also include the CAM plan requirements including the monitoring approach, data availability requirements, indicator ranges, and a statement concerning the obligations to do monitoring, reporting, and recordkeeping.²⁰² The CAM plan itself typically is not included in the permit.

[] Implementation Schedule. Implementation of the CAM rule is to be phased in depending on the size of the PSEU involved. For an owner or operator of a new or existing large PSEU (having the PTE the applicable regulated air pollutant in an amount equal or greater than the major source threshold after controls), Title V operating permit and significant permit revision applications submitted on or after April 20, 1998, must contain CAM plans. For all other large PSEUs, CAM plan submittals must be included with the Title V renewal application.²⁰³ For the remaining smaller PSEUs, these requirements are also delayed until permit renewal. However, permits reopened for cause by the permitting authority may require the CAM plan submittal as part of the reopening process.²⁰⁴ Until CAM is in place, current Title V [33 ELR 10832] monitoring requirements (including periodic monitoring) will continue to apply.²⁰⁵

[] Reporting and Recordkeeping Requirements. Title V reports that involve CAM must include summary data on the number, duration, and cause of: excursions from indicator ranges; emission limitation exceedances; any corrective actions taken; and monitor downtime incidents (other than those associated with zero and span or other daily calibration checks).²⁰⁶ In addition, the report must document QIP implementation and completion activities, if applicable.²⁰⁷

In addition to the general recordkeeping required by Title V, the owner or operator must maintain records of monitoring data, monitor performance data, corrective actions taken, any written QIP and related implementation activities, and other supporting information required to be maintained under CAM, e.g., data used to document the adequacy of monitoring, records of monitoring maintenance, or corrective actions.²⁰⁸

Periodic Monitoring

A source's operating permit must contain all emissions monitoring and analysis procedures or test methods based on any applicable requirements. If an applicable requirement, such as NSPS, does not require periodic testing or monitoring, the permit must require monitoring sufficient to yield reliable results that are representative of compliance with permit terms and conditions.²⁰⁹ The permit must also contain requirements covering use, maintenance, and installation of the monitoring equipment.²¹⁰ If monitoring shows a deviation from permit terms, the owner or operator must report the deviation promptly to the permitting agency.²¹¹ In addition, facilities must keep all monitoring records for five years from the time of generation and also keep records of calibration and maintenance where required.²¹² If an emission unit is subject to the CAM rule, then the CAM requirements can also be used to satisfy the periodic monitoring requirements.

[] EPA's Periodic Monitoring Guidance and Litigation. On September 15, 1998, EPA issued its periodic monitoring guidance for state and local permitting authorities to use in evaluating whether sufficient monitoring is contained in each facility's federal operating permit to assure compliance with regulations developed to meet CAA requirements.²¹³ Under the guidance, the permitting authority evaluates whether monitoring, including recordkeeping, reporting, or periodic testing, applies to the emissions unit in question under existing applicable requirements for that unit. If the already required monitoring is sufficient to yield reliable data from the relevant time period and is representative of the source's compliance with a particular applicable requirement, then no further monitoring (for that applicable requirement at that emission unit) is required in the permit. If additional monitoring is required, the permitting authority will consider the following factors (as well as any others that may apply on a case-by-case basis) to determine the appropriate periodic monitoring methodology:

. the likelihood of violating the applicable requirement, i.e., the margin of compliance with the applicable requirement;

. whether add-on controls are necessary for the unit to meet the emission limit;

. the variability of emissions from the unit over time;

. the type of monitoring, process, maintenance, or control equipment already available for the emission unit;

. the technical and economic considerations associated with the range of possible monitoring methods; and

. the kind of monitoring found on similar emission units.

On April 14, 2000, however, the D.C. Circuit ruled that EPA violated the Administrative Procedure Act by seeking to expand monitoring activities under the CAA through the use of guidance rather than a rule.²¹⁴ The decision states that nothing in EPA's existing Title V operating permit regulations gives state authorities a "roving commission to pore over existing state and federal standards, to decide which are deficient, and to use the permit system to amend, supplement, alter or expand the extent and frequency of testing already provided."²¹⁵ The ruling sets aside EPA's periodic monitoring guidance in its entirety, and specifically says that states cannot use the guidance or EPA's existing operating permit regulations to "conduct more frequent monitoring of its emissions than that provided in the applicable state or federal standard, unless that standard requires no periodic testing, specifies no frequency, or requires only a one-time test."²¹⁶ Periodic monitoring is thus applicable in only three specific circumstances:

. no periodic monitoring (recordkeeping in lieu of monitoring) is required;

. a test method, but no frequency is specified; or

. only a one-time test is required.

Appalachian Power Co. v. U.S. Environmental Protection Agency²¹⁷ therefore affords facilities the opportunity to use the decision as a shield against the imposition of additional monitoring requirements in current permit proceedings. In addition, the decision might possibly be used to remove additional monitoring requirements imposed through use of guidance.

[33 ELR 10833]

Compliance Plan and Schedule Requirements

The compliance plan and schedule requirements should generally mirror the requirements found in the permit application at 40 C.F.R. § 70.5(c)(8). This includes:

. a description of the compliance status of the source;

. a description of the applicable requirements and statements affirming existing and future compliance;

. a compliance schedule that denotes existing compliance, states that requirements becoming effective during the term of the permit will be timely met, and for sources that are not in compliance, a schedule of enforceable remedial measures and milestones; and

. submission of progress reports.

Note that a compliance plan, as described in § 503(b),²¹⁸ is required to be included in the permit application, but not in the permit itself.²¹⁹ However, the permit must contain a compliance plan in accordance with 40 C.F.R. § 70.5(c)(8), which requires the compliance status of the source and statements that compliance will continue and will be met. If a source is in noncompliance, then the source must provide a narrative description of how it will achieve compliance.²²⁰

EPA expects that CAM data will provide owners or operators with reliable data to reach a conclusion about their compliance status. However, note that CAM data does not replace but merely supplements the Title V certification requirement. CAM data does not necessarily provide unequivocal proof of compliance or noncompliance. CAM excursions or exceedances may raise questions about compliance status, but may not conclusively confirm that a source is in noncompliance. Such occurrences only indicate a need to review the compliance information provided in order to determine what, if any, compliance or enforcement action is warranted.

Progress reports for compliance schedules are due at least every six months. These progress reports should include dates, milestones, and achievements required under the compliance schedule and an explanation and corrective action measures if any dates were missed.²²¹

Compliance certifications are due at least annually. This certification identifies the specific terms or conditions, the testing methods used to determine compliance, and the status of compliance for that term or condition.²²² This certification should also identify any deviations, exceptions, or exceedances that occurred during the compliance period.

Under 40 C.F.R. § 70.6(c), the permit must contain conditions that permit entry and inspection to the location of the permitted source and where the records are kept. The permit must also allow, at reasonable times, access and copying of records, sampling or monitoring, and inspection of "facilities, equipment (including monitoring and air pollution control), practices, or operations regulated or required under the permit…."²²³

"Any document (including reports) required by a part 70 permit shall contain a certification by a responsible official" for truth, accuracy, and completeness after reasonable inquiry.²²⁴

Permit Fees

Title V was designed to be self-funding. CAA § 502(b)(3)(A) provides that the source shall pay an "annual fee … sufficient to cover all reasonable (direct and indirect) costs required to develop and administer the permit program requirements…." The costs should cover modeling, monitoring, analyses, preparing guidance, preparing emissions inventories and tracking, and review of permits. The collected fees may be used only for permit program costs. Regulated pollutants for fee determinations include: (1) VOCs; (2) pollutants regulated under NSPS or the air toxics program (§§ 111 or 112); and (3) criteria pollutants (except CO).²²⁵

The CAA provides that a state program providing for a $ 25 per ton fee is presumed acceptable, while a state program using a lesser fee must demonstrate its reasonableness.²²⁶ Due to political pressure, many states adopted the $ 25 fee minimum rather than conducting an analysis of actual costs.²²⁷ In fact, evidence indicates that many states effectively subsidize the permitting program costs because the fees charged are inadequate to cover the costs.²²⁸ Note that the $ 25 per ton minimum does not necessarily mean an actual charge of $ 25 per ton.²²⁹ "The State is not required to assess fees on any particular basis and can use application fees, service-based fees, emissions fees based on either actual or allowable emissions, other types of fees, or any combination thereof."²³⁰ For purposes of assessing adequacy, while EPA will accept other approaches, states may avail themselves of the presumption only if "it would result in the collection and retention of an amount not less than $ 25 per year [as adjusted] times the total tons of the actual emissions of each regulated pollutant (for presumptive fee calculation) emitted from part 70 sources."²³¹

States may exclude from fee calculations:

. actual emissions from affected sources under the Title IV program;

. actual emissions exceeding 4,000 tpy;

. pollutants regulated solely under § 112(r);

. actual emissions already included in minimum fee calculation; and

[33 ELR 10834]

. insignificant quantities of actual emissions not required to be listed in the permit.²³²

"No exemption is created for such pollutants which a particular source emits but for which the source is not in fact subject to a specific regulatory requirement. On the other hand, no fees are required from other 'regulated air pollutants' as defined more expansively in [40 C.F.R.] § 70.2 in making the $ 25/tpy test."²³³ The exemption for affected sources under the acid rain program does not automatically exclude utilities from permit fees.²³⁴ States have discretion in imposing fees on utilities, although EPA will not count those fees towards the state's fee recovery requirement.

The fee schedule is adjusted to the consumer price index.²³⁵ The $ 25 fee is no longer $ 25. The new presumptive minimum fee as of 2000 is $ 34.87 for part 70 permits,²³⁶ and $ 36.07 for part 71 permits.²³⁷

Permit Shield

If a source is in compliance with its permit, it is considered to be in compliance with all applicable requirements of the CAA if the requirements are included in the permit and with any requirements specifically stated in the permit as not applicable.²³⁸ A permit shield is not automatically granted. Its existence must be explicitly stated in the permit itself.²³⁹ The permit shield provisions are used to ensure stability and certainty in the permitting process, as the purpose of the permit is to provide a single resource enumerating all legal obligations and requirements.

Requirements and terms must be included in the permit to be protected. This includes negative declarations of requirements that do not apply.²⁴⁰ If the permit is silent regarding a requirement and it is later determined that the source has not complied with that requirement, the source is in violation.²⁴¹ Therefore, requirements enacted after the permit was issued are not included in a permit shield. This also means that a provision specifically identified in the permit but amended subsequent to permit issuance is not covered by the shield because the amended regulation could not have been contemplated in the permit issuance.²⁴² It is clearly imperative to identify all the requirements that do and do not apply to a source and include those in the permit for maximum coverage and protection.

Streamlined permits should fall under the protection of the permit shield, and "when the source complies with the streamlined requirement, the source will be considered to be in compliance with all of the applicable requirements subsumed under the streamlined requirements."²⁴³

Limitations

The permit shield is available at the discretion of the permitting authority. EPA has adopted a "narrow" interpretation of the permit shield coverage,²⁴⁴ and it is not as protective nor as certain as the permit shield offered under the CWA.

Sources seeking to obtain or renew a part 70 permit cannot be shielded from enforcement actions alleging violations of any applicable requirements (including orders and consent decrees) that occurred before, or at the time of, permit issuance. In addition, sources may not be shielded from requests for information pursuant to section 114 of the Act. The EPA has also provided that the shield will not extend to minor permit modifications.²⁴⁵

The permit shield also does not cover acid rain requirements under Title IV,²⁴⁶ nor does it cover off-permit changes,²⁴⁷ administrative amendments, or certain emerging provisions.²⁴⁸

Operational Flexibility

One of the greatest concerns of industry was the ability to respond to market dynamics under a structured permit regime. CAA § 502(b)(10) directs EPA to develop provisions that allow a source to make changes as long as the changes do not result in changes under Title I, i.e., the NAAQS, nor result in emissions greater than allowed in the original permit. Provisions allowing for operational flexibility are codified at 40 C.F.R. § 70.4(b)(12). They include two mandatory and one optional manner of providing operational flexibility. Other permit flexibility tools include anticipated alternative operating scenarios and off-permit changes.

Section 502(b)(10) Changes

Section 502(b)(10) requires the federally approved operating permit program to include:

Provisions to allow changes within a permitted facility … without requiring a permit revision, if the changes are not modifications under any provision of subchapter I of this chapter and the changes do not exceed the emissions allowable under the permit (whether expressed therein as a rate of emissions or in terms of total emissions[).] Provided, That the facility provides the Administrator and the permitting authority with written notification [33 ELR 10835] in advance of the proposed changes which shall be a minimum of 7 days, unless the permitting authority provides in its regulations a different time frame for emergencies.²⁴⁹

The part 70 regulations repeat this basic requirement verbatim²⁵⁰ and lay out additional procedural steps. First, the regulations repeat the requirement that the proposed change cannot be a modification under any provision of Title I of the CAA, which includes PSD, major source NSR, NSPS, and presumably modifications under the part 61 NESHAPs.²⁵¹ Second, the notice required to the Administrator and the permitting authority must include "a brief description of the change within the permitted facility, the date on which the change will take place, any change in emissions, and any permit term or condition that is no longer applicable as a result of the change," which covers situations, for example, where a permitted emissions unit is removed from service.²⁵² A copy of this notification must be attached to the permit and the regulations provide that the permit shield will not cover such changes.²⁵³

Anticipated Alternative Operating Scenarios

The regulations provide that "reasonably anticipated operating scenarios" be included in the permit.²⁵⁴ This allows facilities to identify optional scenarios and remain in compliance with the law. Terms and conditions required under the regulations relating to anticipated alternative operating scenarios include: (1) recording in the source's log the switch to an alternative operating scenario; (2) the possible extension of the permit shield to cover the alternative operating scenario; and (3) the alternative operating scenario must meet all applicable requirements in the permit.

EPA proposed to clarify aspects of the use of the alternative operating scenarios in a proposed rule in August 1995. The proposed definition included a limitation that the alternative scenarios be limited to those the facility is "designed to accommodate."²⁵⁵ However, in a draft version of operating permit rule revisions released on February 18, 1998, EPA stated it was deleting the "designed to accommodate" language and that it "believes that new units or modifications should be eligible for advance approval as alternative operating scenarios where the State NSR program allows it and where the permitting authority approves the alternative scenario(s) as such."²⁵⁶ Taking this approach one step further, EPA set forth criteria for "advance approvals" in their draft operating permits program in White Paper Number 3.²⁵⁷

An advance approval incorporates terms allowing specified future changes without additional approval or revisions.²⁵⁸ There are many potential uses for advance approvals, including "the addition of specific new process units, modifications to existing units, or even for the addition or modification of units which are not specifically known but which are within a described category of changes."²⁵⁹

Off-Permit Changes

An off-permit change is a potentially powerful tool for a source. States may allow changes to sources that are "not addressed or prohibited" in the permit without a permit revision under three conditions²⁶⁰:

. each change does not cause a violation of any permit term or condition;

. sources provide EPA with contemporaneous written notice of each change and a description of the change; and

. the change is not covered under the permit shield.

Changes made under this provision are not subject to regulation or review until permit renewal. This option is strictly a state program. If a state chooses to prohibit off-permit changes as a matter of state law, then that prohibition is not federally enforceable.²⁶¹ If a change is made, the source must record the changes made and the resulting emissions of a regulated air pollutant not included in the permit.²⁶²

EPA has proposed to eliminate the off-permit change provision.²⁶³ The general view is that anything not included in the permit is disallowed. EPA relies on CAA § 504(a)'s language that operating permits "assure compliance with applicable requirements…." EPA therefore holds that the best way to assure compliance is to require a permit revision or reopening for changes. However, until this proposal is finalized, the off-permit changes can still provide a great degree of operational flexibility for sources.

Emissions Trading and Emissions Caps

Permitting authorities are required under the regulations to include a provision in the permit that no permit revision is necessary for emissions trading.²⁶⁴ Under 40 C.F.R. § 70.4(b)(12), two schemes exist to allow flexibility in emissions trading. One is optional and may be imposed at the permitting authority's discretion, while the second is mandatory and must be made available.

[] Under the SIP. If the SIP authorizes facility emissions trading, then the source may trade emissions within a facility without a permit revision and with seven days' notice.²⁶⁵ The written notification must include, at a minimum:

. a description of the change;

. when the change will occur;

[33 ELR 10836]

. any change in emissions;

. the permit requirements the source will comply with under the SIP emissions trading provisions;

. the SIP provisions the source will comply with; and

. the pollutants emitted.²⁶⁶

The permit shield does not cover the SIP trading program because EPA views the requirements as belonging to the SIP rather than the permit.²⁶⁷

"The effect is to give a source some of the same flexibility as if the SIP prescribed a single overall emission limit for the entire facility."²⁶⁸ However, the usefulness of this provision is limited to the willingness of a state to revise the SIP to allow this sort of trading.

[] Under a Federally Enforceable Emissions Cap. A permitting authority must allow emissions trading "in the permitted facility solely for the purpose of complying with a federally-enforceable emissions cap that is established in the permit independent of otherwise applicable requirements."²⁶⁹ The applicant must request that the permit contain such terms, and the permit application must propose "replicable procedures and permit terms that ensure the emissions trades are quantifiable and enforceable."²⁷⁰ Note that the standards must be federally enforceable—a state can use state law to regulate more stringently and is not required to allow the same flexibility.²⁷¹ The notification requirement is substantially the same as emission trading under the SIP—requiring seven days' notice and several specific items that must be included in the notice.

Typically this provision is not used to meet applicable requirements but rather to avoid meeting other potentially applicable requirements.²⁷² For example, if a source meets the major source definition for Title V purposes with emission of 100 tpy but wants to avoid NSR, with a threshold amount of 250 tpy, then the source may adjust emissions levels within the source at emission units through trading and remain under the permitted cap, which would be between 100 and 250 tpy.

However, this flexibility may be lost if the emissions increase triggers Title I modification requirements. It is also possible that the trigger for PSD and NSR is low enough that the emissions increase would not shield the source from permit modification requirements. With the increasing use and adoption of plantwide applicability limits under the PSD and NSR programs, this provision will be of decreasing utility.

Because the provisions for emissions trading under this section are explicitly authorized in the permit, the permit shield applies.

Emergency Provisions

An emergency situation constitutes an affirmative defense against a permit exceedance.²⁷³ "Emergency" is defined as:

Any situation arising from sudden and reasonably unforeseeable events beyond the control of the source, including acts of God, which situation requires immediate corrective action to restore normal operation, and that causes the source to exceed a technology-based emission limitation under the permit, due to unavoidable increases in emissions attributable to the emergency. An emergency shall not include noncompliance to the extent caused by improperly designed equipment, lack of preventative maintenance, careless or improper operation, or operator error.²⁷⁴

In addition, the emergency defense need not extend to all technology-based standards. However, most technology-based standards incorporate a startup, shutdown, and malfunction exception to the standards. Note that the emergency provision applies to technology-based standards and not health-based standards. This approach is justified because the emergency provisions are meant to handle the contingency of technological failures, and health-based standards are "formulated largely without regard to technological limitations."²⁷⁵

Conclusion

Title V permits can be complicated and time-consuming to complete. Many different programs and regulations can be required to be included in a Title V permit. The goal of the Title V program is to have all the source's requirements contained in one permit. Accordingly, the Title V program process can often be overwhelming, especially for inexperienced persons. The intention of this Article was to provide a detailed review of the Title V program and the contents of a Title V permit. However, this review should not substitute for reading and understanding the actual Title V permit program regulations. Sources required to submit a Title V permit should carefully read all the applicable state and federal regulations and consult an experienced environmental attorney for further assistance.

1. U.S. Environmental Protection Agency, Final Rule Operating Permits Program, 57 Fed. Reg. 32249 (July 21, 1992).

2. 42 U.S.C. §§ 7416, 7661e(a), ELR STAT. CAA §§ 116, 506(a); 40 C.F.R. § 70.1(c).

3. 40 C.F.R. § 70.1(b).

4. Regina P. Cline, All Pending Title V Permits Scheduled for Completion by 2001, EPA Official Says, Daily Env't Rep. (BNA), June 23, 1999, at A-4.

5. 40 C.F.R. § 70.3(a).

6. For example, in ozone nonattainment areas, major source classification is based on the area classification and emission. In marginal or moderate areas, a potential-to-emit (PTE) of 100 tons per year (tpy) of nitrogen oxides (NO_x) or volatile organic compounds (VOCs) is considered major, while in serious areas the threshold drops to a PTE of 50 tpy, and in severe areas the PTE amount is 25 tpy. A limited sliding scale applies to carbon monoxide (CO) and particulate matter with a diameter of 10 microns or less (PM[10]) as well, although with different threshold amounts.

7. JAMES T. O'REILLY ET AL., CLEAN AIR PERMITTING MANUAL 16-25 (1997).

8. 40 C.F.R. § 70.2(1)(ii).

9. Id. § 70.2.

10. Fugitive emissions are "those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally-equivalent opening." Id. This definition is identical to the fugitive emission definition found in the NSR program. Note that emissions that are "actually collected" are not fugitive. Memorandum from Thomas C. Curran, U.S. EPA, Interpretation of the Definition of Fugitive Emissions in Parts 70 and 71, at 2 (Feb. 10, 1999) (available from the ELR Document Service, ELR Order No. AD-04085).

11. See 45 Fed. Reg. 52675, 52695 (Aug. 7, 1980); 54 Fed. Reg. 48870 (Nov. 28, 1989).

12. Letter from John S. Seitz, U.S. EPA, to Lisa J. Thorvig, Minnesota Pollution Control Agency (Nov. 16, 1994) (available from the ELR Document Service, ELR Order No. AD-01132).

13. 40 C.F.R. § 70.3(c)(1).

14. Id. § 70.3(c)(2).

15. 42 U.S.C. § 7651g, ELR STAT. CAA § 408.

16. Id. § 7651a(1), (2), ELR STAT. CAA § 402(1), (2).

17. Id. § 7429(e), ELR STAT. CAA § 129(e).

18. Id.

19. 40 C.F.R. § 70.4(b)(1).

20. 57 Fed. Reg. at 32561-62.

21. 40 C.F.R. § 70.4(b)(4).

22. Memorandum from Steven J. Hitte, U.S. EPA, on Title V Applicability of One-Time "Reporting" Provisions for Nonmajor Sources (Apr. 19, 1999) (available from the ELR Document Service, ELR Order No. AD-04131).

23. Id. at 1.

24. Id. at 2.

25. 42 U.S.C. § 7602(z), ELR STAT. CAA § 302(z).

26. 40 C.F.R. § 70.2.

27. U.S. EPA, WHITE PAPER NUMBER 2 FOR IMPROVED IMPLEMENTATION OF THE PART 70 OPERATING PERMITS PROGRAM 34 (1996) [hereinafter WHITE PAPER NUMBER 2].

28. Id.

29. Id.

30. See David P. Novello, Overview of the Title V Operating Permit Program, in THE CLEAN AIR ACT HANDBOOK 450-51 (Robert J. Martineau Jr. & David P. Novello eds., 1998).

31. 40 C.F.R. § 70.2.

32. Memorandum from John S. Seitz, U.S. EPA, Options for Limiting the Potential to Emit of a Stationary Source Under Section 112 and Title V of the Clean Air Act (Jan. 25, 1995) (available from the ELR Document Service, ELR Order No. AD-00800).

33. Id.; see also Novello, supra note 30, at 448-49.

34. National Mining Ass'n v. EPA, 59 F.3d 1351, 25 ELR 21390 (D.C. Cir. 1995). The court remanded the matter to EPA for an explanation as to "how its refusal to consider limitations other than those that are 'federally enforceable' serves the statute's directive to 'consider controls' when it results in a refusal to credit controls imposed by a state or locality even if they are unquestionably effective." Id. at 1364, 25 ELR at 21397.

35. Chemical Mfrs. Ass'n v. EPA, 70 F.3d 637 (D.C. Cir. 1995).

36. Memorandum from Steven A. Herman & Mary D. Nichols, U.S. EPA, on "Effective" Limits on Potential to Emit: Issues and Options (Jan. 31, 1996) (available from the ELR Document Service, ELR Order No. AD-03108).

37. Id. at 3-4.

38. Id. at 5.

39. Clean Air Implementation Project v. EPA, No. 96-1224, 1996 U.S. App. LEXIS 18402, 1996 WL 393118 (D.C. Cir. 1996).

40. U.S. EPA, EXTENSION OF JANUARY 25, 1995 POTENTIAL TO EMIT TRANSITION POLICY (Aug. 27, 1996) (available from the ELR Document Service, ELR Order No. AD-03105).

41. 40 C.F.R. § 70.2.

42. Id.

43. Id.

44. Id.

45. Id.; Memorandum from Lydia N. Wegman, U.S. EPA, Definition of Regulated Air Pollutant for Purposes of Title V (Apr. 26, 1993) [hereinafter Wegman Memo] (available from the ELR Document Service, ELR Order No. AD-00104).

46. Wegman Memo, supra note 45, at 3 (emphasis in original).

47. 40 C.F.R. § 70.2.

48. Under CAA § 302(g), the term "air pollutant" means "any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive … substance or matter which is emitted into or otherwise enters the ambient air. Such term includes any precursors to the formation of any air pollutant, …." 42 U.S.C. § 7602(g), ELR STAT. CAA § 302(g).

49. Wegman Memo, supra note 45, at 4.

50. Id. at 5.

51. See O'REILLY ET AL., supra note 7, at S-35.

52. Id.

53. Sources that are not automatically included in the coverage are not excluded from applying for an operating permit if they desire, so long as they have the potential to become a major source.

54. U.S. EPA, WHITE PAPER FOR STREAMLINED DEVELOPMENT OF PART 70 PERMIT APPLICATIONS 6 (1995) [hereinafter WHITE PAPER NUMBER 1].

55. 42 U.S.C. § 7661b(a), ELR STAT. CAA § 503(a).

56. Id. § 7661b(c), ELR STAT. CAA § 503(c); 40 C.F.R. § 70.5(a)(1).

57. 42 U.S.C. § 7661(b)(c), ELR STAT. CAA § 503(c); 40 C.F.R. § 70.5(a)(2).

58. 42 U.S.C. § 7651g(d), ELR STAT. CAA § 408(d); 40 C.F.R. § 70.5(a)(1)(iv).

59. 40 C.F.R. § 70.5(a)(1)(iii).

60. Id. § 70.5(c).

61. WHITE PAPER NUMBER 1, supra note 54.

62. Id. at 2, 3.

63. 40 C.F.R. § 70.5(a)(2).

64. Id. § 70.7(a)(4).

65. Id. § 70.7(a)(2).

66. 42 U.S.C. § 7661a(b)(7), ELR STAT. CAA § 502(b)(7).

67. See 40 C.F.R. § 70.7(b).

68. The definition of "responsible official" is found at 40 C.F.R. § 70.2.

69. See Shannon S. Broome & Charles H. Knauss, Preparing the Title V Permit Application, in THE CLEAN AIR ACT HANDBOOK 485-86 (Robert J. Martineau & David P. Novello eds., 1998).

70. 40 C.F.R. § 70.5(c). This means the information must not be necessary to determine: (1) which requirements apply; (2) whether the source is in compliance with applicable requirements; or (3) whether the source is major. WHITE PAPER NUMBER 1, supra note 54, at 8-9.

71. Wegman Memo, supra note 45, at 5.

72. Id. at 6.

73. WHITE PAPER NUMBER 1, supra note 54, at 9, attach. A.

74. ILL. ADMIN. CODE tit. 35, §§ 212.123(a) & 212.124(a) (1996).

75. Colo. Air Quality Control Com. Reg. No. 1, § III.C., No. 6, pt. B, § III (2002).

76. ILL. ADMIN. CODE tit. 35, § 211.5250 (1993).

77. WHITE PAPER NUMBER 1, supra note 54, attach. A.

78. Id. at 5.

79. Id. at 6.

80. Compiling Inventory Biggest Task in Permit Application, Consultant Says, 26 Env't Rep. (BNA) 446 (1995).

81. See Clara G. Poffenberger, The Role of Emission Factors in Permitting and Enforcement, in THE EMISSION INVENTORY: KEY TO PLANNING, PERMITS, COMPLIANCE, AND REPORTING 7-9 (Air & Waste Management 1996) [hereinafter THE EMISSION INVENTORY].

82. Rolf R. von Oppenfeld et al., Minimizing the Risks Created by an Emissions Inventory, in THE EMISSION INVENTORY, supra note 81, at 138.

83. 40 C.F.R. § 70.5(c)(8).

84. Id. § 70.5(c)(8)(i), (ii), and (iii).

85. Id. § 70.5(c)(8)(iii)(C).

86. Id.

87. Id. § 70.5(c)(8)(iv).

88. Id. § 70.5(c)(9).

89. Id. § 70.5(c)(9)(i), (ii), (iii), and (iv).

90. Id. § 70.5(d).

91. Id. § 70.2.

92. U.S. EPA, Compliance Assurance Monitoring, 62 Fed. Reg. 54900 (Oct. 22, 1997) (codified at 40 C.F.R. pt. 64).

93. 40 C.F.R. § 64.2(a), (b).

94. 42 U.S.C. § 7661b(d), ELR STAT. CAA § 503(d).

95. 40 C.F.R. § 70.5(a)(6).

96. See 42 U.S.C. § 7661c(f), ELR STAT. CAA § 504(f); 40 C.F.R. § 70.5(f)(1).

97. See 42 U.S.C. § 7661c(f), ELR STAT. CAA § 504(f); 40 C.F.R. § 70.5(f)(3).

98. 40 C.F.R. § 70.5(f)(2).

99. WHITE PAPER NUMBER 2, supra note 27, at 7. CAA § 504(a) and (f) provide the legal authority for streamlining, 42 U.S.C. § 7661d(a), (f), ELR STAT. CAA § 504(a), (f).

100. WHITE PAPER NUMBER 2, supra note 27, at 7.

101. Id. at 11 n.9. The procedures for adequacy determination are discussed id. at 8-11.

102. Id. at 14-16.

103. 42 U.S.C. § 7661a(h), ELR STAT. CAA § 502(h).

104. 40 C.F.R. § 70.5(a)(1)(i).

105. Id. § 70.5(a)(1)(ii).

106. Id.

107. Id. § 70.6(a)(2).

108. Id. § 70.7(c)(1)(ii).

109. Id. § 70.5(a)(1)(iii).

110. Id. § 70.7(b).

111. Id. §§ 70.5(a)(2), 70.7(b).

112. Id. § 70.4(b)(10).

113. Id. § 70.7(h); see 42 U.S.C. § 7661b(e), ELR STAT. CAA § 503(e).

114. 40 C.F.R. § 70.8(a).

115. 42 U.S.C. § 7661d(b)(2), ELR STAT. CAA § 505(b)(2).

116. Id. § 7661d(b)(3), (c), ELR STAT. CAA § 505(b)(3), (c).

117. Id. § 7661d(e), ELR STAT. CAA § 505(e).

118. 40 C.F.R. § 70.8(a)(2).

119. Id. § 70.2.

120. Id. § 70.8(b)(2).

121. See 42 U.S.C. § 7661a(b)(6), ELR STAT. CAA § 502(b)(6). If, after the EPA review period for a permit, any person petitions EPA for failure to object to the permit and EPA denies the petition, the denial may be reviewed in the U.S. court of appeals per CAA § 307. Note that the EPA denial will be from the EPA Environmental Appeals Board, to whom the Administrator has delegated petition review authority. See generally Nancy Firestone & Elizabeth Brown, Ensuring the Fairness of Agency Adjudications: The Environmental Appeals Board's First Four Years, 2 ENVTL. LAW. 291, 321 (1996).

122. 40 C.F.R. § 70.4(3)(x).

123. ARNOLD W. REITZE JR., AIR POLLUTION CONTROL LAW: COMPLIANCE AND ENFORCEMENT 217 (Envtl. L. Inst. 2001).

124. U.S. EPA, Clean Air Act Disapproval of Operating Permits Program; Virginia, 59 Fed. Reg. 31183, 31184 (June 17, 1994).

125. Virginia v. Browner, 80 F.3d 869, 26 ELR 21245 (4th Cir. 1996). Virginia subsequently received interim approval in 1997.

126. 57 Fed. Reg. at 32265.

127. 42 U.S.C. § 7661c(d), ELR STAT. CAA § 504(d); 40 C.F.R. § 70.6(d).

128. 40 C.F.R. § 70.6(d)(1).

129. Memorandum from Kathie A. Stein, U.S. EPA, Guidance on Enforceability Requirements for Limiting Potential to Emit Through SIP and § 112 Rules and General Permits (Jan. 25, 1995) (available from the ELR Document Service, ELR Order No. AD-01272).

130. Id.

131. 57 Fed. Reg. at 32275.

132. Id. at 32275.

133. Id. at 32278.

134. 40 C.F.R. § 70.6(d)(1).

135. Id. § 70.6(d)(2).

136. Id. § 70.6(e).

137. Id.

138. See Memorandum from Steven J. Hitte, U.S. EPA, on Title V Program Responsibilities Concerning the Accidental Release Prevention Program (Apr. 20, 1999) (available from the ELR Document Service, ELR Order No. AD-04115).

139. U.S. EPA, FREQUENTLY ASKED QUESTIONS AND RESPONSES REGARDING TITLE V PROGRAM RESPONSIBILITIES OF THE ACCIDENTAL RELEASE PREVENTION PROGRAM (1999).

140. 57 Fed. Reg. at 32258.

141. Id.

142. Id.

143. U.S. EPA, Hazardous Air Pollutants: Amendments to the Approval of State Programs and Delegation of Federal Authorities, 65 Fed. Reg. 55810 (Sept. 14, 2000); 40 C.F.R. § 63.94.

144. 42 U.S.C. §§ 7651g(a), 7661e(b), ELR STAT. CAA §§ 408(a), 506(b).

145. Id. § 7651g(a), ELR STAT. CAA § 408(a).

146. Id. § 7651g(b), ELR STAT. CAA § 408(b).

147. Id. § 7651b(f), ELR STAT. CAA § 403(f).

148. Id. § 7661c(a), ELR STAT. CAA § 504(a).

149. 57 Fed. Reg. at 32298.

150. 40 C.F.R. § 70.6(a)(1)(i).

151. See id. § 70.6(a)(5)-(6).

152. Novello, supra note 30, at 456.

153. 57 Fed. Reg. at 32564.

154. WHITE PAPER NUMBER 2, supra note 27, at 3.

155. While delays are typically less than 18 months in most regions, it is not unknown for a program revision to be pending for years.

156. Id. at 3.

157. Id.

158. Id.

159. 40 C.F.R. § 70.6(a)(1)(i).

160. Id. § 70.6(a)(1)(iii).

161. Id. § 70.6(a)(1)(ii).

162. 42 U.S.C. § 7661a(b)(5)(B), ELR STAT. CAA § 502(b)(5)(B): 40 C.F.R. § 70.6(a)(2).

163. Id. § 7651g(a), ELR STAT. CAA § 408(a); 40 C.F.R. § 70.6(a)(2).

164. 40 C.F.R. § 70.6(a)(2).

165. The statutory authority exists at 42 U.S.C. § 7661c(b), ELR STAT. CAA § 504(b).

166. See 40 C.F.R. § 70.6(a)(3)(i)(A).

167. Id.

168. Id.

169. Id. § 70.6(a)(3)(i)(B).

170. WHITE PAPER NUMBER 2, supra note 27, at 32.

171. 42 U.S.C. § 7661c(a), ELR STAT. CAA § 504(a).

172. 40 C.F.R. § 70.6(a)(3)(i)(A).

173. WHITE PAPER NUMBER 2, supra note 27, at 29 n.21.

174. Id. at 32.

175. 40 C.F.R. § 70.6(a)(3)(ii)(A).

176. See 62 Fed. Reg. at 54900 (codified at 40 C.F.R. pt. 64); U.S. EPA, TECHNICAL GUIDANCE DOCUMENT: COMPLIANCE ASSURANCE MONITORING (1998) [hereinafter COMPLIANCE ASSURANCE MONITORING].

177. See 42 U.S.C. §§ 7414(a)(1), (a)(3), 7661b, 7661c, ELR STAT. CAA §§ 114(a)(1), (a)(3), 503, 504.

178. 40 C.F.R. §§ 64.1, 70.2.

179. Id. § 64.1.

180. Id.

181. Id. § 64.2(a)(3) & (b)(1).

182. Id. § 64.1.

183. See id. § 64.2(a)(3).

184. Id. § 64.2.

185. See id. § 72.2.

186. See id. § 64.4.

187. See id. §§ 64.3, 64.4.

188. See id. § 64.4.

189. Id. § 64.3(a).

190. Id. § 64.3(b).

191. Id. § 64.3(d).

192. Id. § 64.4(b).

193. Id.

194. COMPLIANCE ASSURANCE MONITORING, supra note 176, at 2-21 to 2-23.

195. Id.

196. 40 C.F.R. § 64.8.

197. Id. § 64.5.

198. Id. § 64.5(a)(1).

199. Id. § 64.5(a)(3).

200. Id. § 64.5(a)(2).

201. Id. § 64.5(b).

202. Id. §§ 64.4, 70.6(a)(3)(A).

203. See id. § 64.5(a).

204. See id. § 64.5(b).

205. See id. §§ 64.5(d), 64.6(e)(1).

206. Id. § 64.9(a).

207. Id.

208. Id. § 64.9(b).

209. Id. § 70.6(a)(3)(i)(B).

210. Id. § 70.6(a)(3)(i)(C).

211. Id. § 70.6(a)(3)(iii)(B).

212. Id. § 70.6(a)(3)(ii)(B).

213. U.S. EPA, PERIODIC MONITORING GUIDANCE (2002), available at http://www.epa.gov/Region7/programs/artd/air/title5/t5memos/pmguide.pdf (last visited Aug. 11, 2003) (available from the ELR Document Service, ELR Order No. AD-03936).

214. See Appalachian Power Co. v. EPA, 208 F.3d 1015, 30 ELR 20560 (D.C. Cir. 2000).

215. Id. at 1025, 30 ELR at 20564.

216. Id. at 1027, 30 ELR at 20565.

217. 208 F.3d 1015, 30 ELR 20560 (D.C. Cir. 2000).

218. This section requires a plan "describing how the source will comply with all applicable requirements…." 42 U.S.C. § 7661b(b), ELR STAT. CAA § 503(b).

219. 57 Fed. Reg. at 32254-55.

220. 40 C.F.R. § 70.5(c)(8)(ii)(c).

221. Id. § 70.6(c)(4).

222. Id. § 70.6(c)(5).

223. Id. § 70.6(c)(2)(3).

224. Id. § 70.6(c)(1); see id. § 70.5(d).

225. 42 U.S.C. § 7661a(b)(3)(B)(ii), ELR STAT. CAA § 502(b)(3)(B)(ii).

226. Id. § 7661a(b)(3)(B)(i), ELR STAT. CAA § 502(b)(3)(B)(i); 40 C.F.R. § 70.9(b)(2)(I).

227. REITZE, supra note 123.

228. See U.S. GENERAL ACCOUNTING OFFICE, AIR POLLUTION — DIFFICULTIES IN IMPLEMENTING A NATIONAL AIR PERMIT PROGRAM 29-31 (1993).

229. For example, South Dakota charges $ 6.10 per ton annually for a regulated pollutant, Indiana charges $ 33 per ton annually, and Maryland charges $ 25, adjusted for the consumer price index.

230. 57 Fed. Reg. at 32292.

231. 40 C.F.R. § 70.9(b)(2)(i).

232. Id. § 70.9(b)(2)(ii).

233. 57 Fed. Reg. at 32564.

234. Id. at 32564; see 42 U.S.C. § 7651g(c)(4), ELR STAT. CAA § 408(c)(4).

235. 40 C.F.R. § 70.9(b)(2)(iv).

236. Memorandum from Jeff Herring, U.S. EPA, Correction to Part 70 Presumptive Minimum Fee Effective From September 2000 Through August 2001 (Dec. 22, 2000). See Memorandum from Jeff Herring, U.S. EPA, Annual Adjustment of Presumptive Minimum Fee for 40 C.F.R. Part 70 and 40 C.F.R. Part 71 (Sept. 18, 2000).

237. Memorandum from Jeff Herring, U.S. EPA, Correction to the Part 71 Presumptive Minimum Fee for Calendar Year 2001 (Dec. 22, 2000). See Memorandum from Jeff Herring, U.S. EPA, Annual Adjustment of Presumptive Minimum Fee for 40 C.F.R. Part 70 and 40 C.F.R. Part 71 (Sept. 18, 2000).

238. 42 U.S.C. § 7661c(f), ELR STAT. CAA § 504(f); 40 C.F.R. § 70.6(f).

239. 40 C.F.R. § 70.6(f)(2).

240. Id. § 70.6(f)(1)(ii).

241. "Only requirements that have been reviewed by the permitting authority and identified as such in the permit can be shielded against." 57 Fed. Reg. at 32277.

242. Id.

243. WHITE PAPER NUMBER 2, supra note 27, at 8.

244. 57 Fed. Reg. at 32564. "Put simply, a broad shield would effectively abrogate specific Congressional mandates such as section 112 requirements … and would significantly handicap States in their planning for effectiveness of new requirements designed to meet other Congressional goals." Id.

245. 57 Fed. Reg. at 32255; see 40 C.F.R. § 70.6(f)(3).

246. 40 C.F.R. § 70.6(f)(3)(iii).

247. Id. §§ 70.6(b)(14)(iii), 70.7(e)(2)(vi).

248. Id. § 70.6(f)(3).

249. 42 U.S.C. § 7661a(b)(10), ELR STAT. CAA § 502(b)(10).

250. 40 C.F.R. § 70.4(b)(12).

251. Id. § 70.4(b)(12)(i).

252. Id. § 70.4(b)(12)(i)(A).

253. Id. § 70.4(b)(12)(i)(B).

254. Id. § 70.6(a)(9).

255. U.S. EPA, Proposed Rule Operating Permits Program and Federal Operating Permits Program, 60 Fed. Reg. 45529, 45565 (Aug. 31, 1995).

256. U.S. EPA, PREAMBLE TO REVISED PART 51 AND PART 70: DRAFT 19 (1998).

257. U.S. EPA, DESIGN OF FLEXIBLE AIR PERMITS (2000) (draft for review and comment released on Aug. 7, 2000).

258. Id. at 10.

259. Id.

260. 40 C.F.R. § 70.4(b)(14).

261. Id.

262. Id. § 70.4(b)(14)(iv).

263. 60 Fed. Reg. at 45533.

264. 40 C.F.R. § 70.6(a)(8).

265. Id. § 70.4(b)(12)(ii).

266. Id. § 70.4(b)(12)(ii)(A).

267. 57 Fed. Reg. at 32268.

268. JOHN-MARK STENSVAAG & CRAIG N. OREN, CLEAN AIR ACT: LAW AND PRACTICE 14-176 (1994).

269. 40 C.F.R. § 70.4(b)(12)(iii).

270. Id.

271. STENSVAAG & OREN, supra note 268, at 14-178.

272. See O'REILLY ET AL., supra note 7, at 16-59.

273. 40 C.F.R. § 70.6(g).

274. Id. § 70.6(g)(1).

275. 57 Fed. Reg. at 32279; see generally Natural Resources Defense Council v. EPA, 859 F.2d 156, 19 ELR 20016 (D.C. Cir. 1988) (under the CWA, water quality-based limitations not tied to technological limitations).

33 ELR 10815 | Environmental Law Reporter | copyright © 2003 | All rights reserved