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Title V Permit Writer's Tips - Compliance/Enforcement

A. Practical Enforceability 

Each Title V permit condition must be practically enforceable. EPA’s primary guidance on practical enforceability is contained in "Guidance on Limiting Potential to Emit in New Source Permitting," June 13, 1989 (Attachment 2). 

Practical Enforceability Answers: WHO, WHAT, WHERE, WHEN, HOW & HOW OFTEN

 1.  No Calendar Year Limits

Emission limits which require compliance on a calendar year basis are not practically enforceable. For long-term emission limitations to be practically enforceable, compliance must be determined, at a minimum, on a 12-month rolling sum basis. This means that each month the emissions of the current month + the 11 previous months are summed.

When an emission or other limitation is expressed as a "12-month rolling total" (or a similar "rolled" limit), the permittee should be required to keep records of the emissions for each month as well as the calculation of the 12-month rolling total of emissions for each month. This will enable an inspector to readily assess the source’s compliance status in any given month.

 NOTE:

It is incorrect to say "12-month rolling average". There is no "averaging" because the limit is derived by summing the monthly emissions over the previous 12-months. Correct terminology includes "12-month rolling sum", "12-month rolling total", or "emissions shall not exceed x in any consecutive 12 month period."

 2.  Operation of Control Equipment

 If a Title V permit requires the emissions from certain equipment to be controlled by a control device, there must also be an explicit permit condition to operate that control device.

 Example #18

A Title V permit requires the emissions from a boiler to be controlled by an electrostatic precipitator (ESP). The permit must also require the source to operate the ESP whenever the boiler is in use. An example permit condition states:

The ESP shall be operated at any time Boiler #1 is in use.

Additional permit conditions are necessary to govern specific requirements about operation and maintenance of the control device, as well as monitoring, recordkeeping and reporting to assure compliance.

 3.  Calculation Equations

 For any permit term that requires a calculation to determine compliance, make sure that the equation and all assumptions are written into the permit.

Example #19 

An example permit condition states:

The permittee shall report monthly VOC emissions from the coating operations, using the following equation and information provided by the coating manufacturer on the VOC content and assuming 100% of the VOC in the coatings are released to the atmosphere:

[Provide VOC calculation equation in permit].

 B. Credible Evidence

Title V permit conditions cannot limit the types of data or information (i.e., credible evidence) that may be used to prove a violation of any applicable requirement. Title V permits should contain language clarifying that any credible evidence may be used in determining a source’s compliance status (or alternatively, that nothing in the permit precludes the use of credible evidence in determining compliance or noncompliance with the terms of the permit). Such language gives fair notice to the source and the public, and prevents the source from claiming that they weren’t on notice that other credible evidence could be used to demonstrate a violation or compliance. Such language can most easily be added to Title V permits by modifying the "boilerplate" provisions (i.e., general permit conditions) as in the following example.

Example #20

Permit Conditions Addressing Credible Evidence

Delaware includes this provision in the General Compliance section of each Title V permit:

Nothing in this permit shall be interpreted to preclude the use of any credible evidence to demonstrate noncompliance with any term of this permit.

In addition, Delaware includes the following related provision in the General Compliance Certification Requirements section of each Title V permit:

Any additional information possessed by the Company that demonstrates noncompliance with any applicable requirement must also be used as the basis for compliance certifications.

In addition to including language similar to the above in the permit, you should also make sure that credible evidence "buster" language is NOT included in the permit. Such language (see examples below) could be construed to limit credible evidence. In general, the permit should simply tell the source what it must do (e.g., measure pressure drop). It is NOT necessary that the permit include a statement that a term "assures compliance" or that an activity (e.g., monitoring) is required to "demonstrate compliance."

Watch out for credible evidence "buster" language!

 Example #21 

Credible Evidence "Buster" Language

Language similar to the following should NOT be included in Title V permits:

The monitoring methods specified in this permit are the sole methods by which compliance with the associated limit is determined.

Reference test method results supersede CEM data [or parametric monitoring data].

Compliance with this provision shall be demonstrated solely by ... [periodic monitoring provisions]...

C.  Compliance Certifications

All Title V applications must include certifications of compliance or non-compliance with applicable requirements. If a source certified "not in compliance" in the permit application, the permitting authority should make sure one of the following two things happens before issuing the draft permit:

1) If the source still is not in compliance prior to issuing the draft permit, the Title V permit must include a compliance schedule.

2) If the source came into compliance since the permit application was submitted, the source must submit a revised compliance certification confirming this fact, prior to issuance of the draft permit.

D.  Permit Shield

Permits should identify the specific operations which are shielded and the specific requirements from which they are shielded. Particularly, if there is a permit shield for a determination of non-applicability, the Statement of Basis should explain why the shielded requirements are not applicable (e.g., because the source does not have certain equipment or processes, or because the equipment or processes are of a size or type which are not regulated).

Example #22

Permit Shield for a Determination of Non-applicability

A permit in West Virginia states:

1. The permittee has requested and is hereby granted a permit shield. The permit shield applies as long as the permittee operates in accordance with the information contained within this permit.

2. The list below identifies requirements which are not applicable to the permittee and the determinations thereof. So long as the permittee operates within the constraints of these determinations, the permit shield shall apply to the following provisions.

a. 40 C.F.R. 60 Subpart G, Standards of Performance for Stationary Gas Turbines. There are no turbines located at the Source.

b. 40 C.F.R. 60 Subparts K and Ka, Standards of Performance for Storage Vessels for Petroleum Liquids. All tanks at the Source are below 40,000 gallons in capacity.

c. 40 C.F.R. 60 Subpart Kb, Standards of Performance for Volatile Organic Liquid Storage Vessels. All tanks storing volatile organic liquids at the Source are below 10,000 gallons in capacity.

d. 40 C.F.R. 60 Subpart KKK, Standards of Performance for Equipment Leaks of VOC From Onshore Natural Gas Processing Plants. The Source is not engaged in the extraction of natural gas liquids from field gas or in the fractionation of mixed natural gas products.

e. 45 C.S.R. 21, To Prevent and Control Air Pollution from the Emission of Volatile Organic Compounds. The Source is not located in Cabell, Kanawha, Putnam, Wayne, nor Wood counties.

f. 45 C.S.R. 27, To Prevent and Control the Emissions of Toxic Air Pollutants. Natural gas is included as a petroleum product and contains less than 5% benzene by weight. C.S.R. 45-27-2.4 exempts equipment "used in the production and distribution of petroleum products providing that such equipment does not produce or contact materials containing more than 5% benzene by weight."

3. Compliance with the conditions of this permit shall be deemed compliance with the corresponding applicable requirements as of the date of permit issuance and/or that the requirements specifically identified are not applicable to the permittee as of the date of permit issuance. C.S.R. 45-30-5.6.a.

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