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Title V Permit Writer's Tips - Statement of Legal and Factual Basis

Each Title V permit is required to have an accompanying "statement of legal and factual basis" (or "Statement of Basis" for short). Permitting authorities usually call these documents "technical review memos" or "fact sheets". The permit is an enforceable document and should contain only enforceable terms and conditions, as well as any additional information to make the terms meaningful (e.g., identification of emission units). All background narrative (e.g., description of the facility) and explanations (e.g., basis of periodic monitoring regimes) should be in the Statement of Basis.

The Statement of Basis "tells the story" behind the permit conditions.

The more fully decisions are documented in the Statement of Basis, the fewer questions and comments EPA and the public are likely to have about the draft permit conditions. A thorough Statement of Basis also will be useful for permit revisions and permit renewal.

Statement of Basis should include:
  • Descriptions of the facility and manufacturing process
  • Summary of emissions, emission units, and control devices
  • Explanation of why the source is subject to Title V (e.g., PTE for NOx is greater than 100 TPY)
  • Attainment status of the area (important for understanding major source status and applicability of SIP requirements, like RACT)
  • Summary of applicable requirements
  • Explanations for applicability and non-applicability determinations (applicability "thought process")
  • Justification for any "streamlining"
  • Basis for periodic monitoring regime chosen, including appropriate calculations
  • Basis for determining that emission units/operations are "insignificant activities"

Explanations of the periodic monitoring regime are especially important when the periodic monitoring is less than what would be expected (e.g., only quarterly inspections of the baghouse are required because the unit operates less than 40 hours per quarter), or to justify that record keeping may be sufficient periodic monitoring (e.g., a records of the type of fuel and of certain sulfur content in fuel will assure compliance with an SO2 emission limit).

The Statement of Basis can also be used to notify the source, EPA and the public about issues of concern. For example, you may want to discuss the likelihood that a future MACT standard will apply to the source. This is also a place where you can highlight other requirements that are not applicable at the time of permit issuance, but which could become applicable in the future (e.g., future SIP regulations under development).

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