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MEMORANDUM 

From: The Office of Air Quality Planning and Standards 

 U.S. Environmental Protection Agency 

To: Combustion Turbine NSPS Docket (EPA-HQ-OAR-2004-0490) 

Date: June, 2012 

Subject: Exemption of non-major source subject to new source performance standards for stationary gas 

turbines under 40 CFR 60 subpart KKKK from Title V permitting requirements 

Rational for Clean Air Act Title V Exemption

The U.S. Environmental Protection Agency (EPA) is proposing to exempt non-major source subject to new 

source performance standards (NSPS) for stationary combustion turbines under 40 CFR 60 subpart KKKK from 

the title V permitting requirements. Under authority of Clean Air Act (CAA) section 502(a), EPA may exempt 

non-major sources1 subject to CAA section 111 (NSPS) standards from the requirements of title V if EPA finds 

that compliance with such requirements is “impracticable, infeasible, or unnecessarily burdensome” on such 

sources. The EPA determines whether to exempt a non-major source from title V permitting at the time the 

relevant CAA section 111 standards are established (40 CFR 70.3(b)(2)). Under the proposed exemption, affected 

owners/operators of a stationary combustion turbine that is subject to subpart KKKK and is determined to be nonmajor sources (hereafter referred to as a ‘‘stationary combustion turbine NSPS non-major source’’) would not be 

required to obtain a title V permit under 40 CFR part 70 or 40 CFR part 71, provided that the affected source 

would not be required to obtain a permit under 40 CFR 70.3(a) or 40 CFR 71.3(a) for the sole reason that the 

affected source is a non-major source. Notwithstanding qualifying for this exemption, the owner or operators of 

the exempted stationary combustion turbine would still be required to comply with the provisions of subpart 

KKKK, as applicable to the affected source. 

Consistent with the statute, EPA has determined that compliance with title V permitting is ‘‘unnecessarily 

burdensome’’ for the stationary combustion turbine NSPS non-major sources. The EPA’s determination that this 

criterion was satisfied is based primarily upon consideration of the following four factors: (1) whether title V 

would result in significant improvements to the compliance requirements under subpart KKKK for the stationary 

combustion turbine NSPS non-major sources; (2) whether title V permitting would impose a significant burden on 

these non-major sources and whether that burden would be aggravated by any difficulty these sources may have 

in obtaining assistance from permitting agencies; (3) whether the costs of title V permitting for these non-major 

sources would be justified, taking into consideration any potential gains incompliance likely to occur for such 

sources; and (4) whether there are implementation and enforcement programs in place that are sufficient to assure 

compliance with subpart KKKK without relying on title V permits. Not all of the four factors must weigh in favor 

of an exemption [See 70 FR 75320, 75323 (Title V Exemption Rule)]. Instead, the factors are considered in 

combination and EPA determines whether the factors, taken together, support an exemption from title V for the 

stationary combustion turbine NSPS non-major sources. Additionally, consistent with the guidance provided by 

the legislative history of CAA section 502(a),2

 we considered whether exempting the stationary combustion 

turbine NSPS non-major sources would adversely affect public health, welfare or the environment. The first factor 

is whether title V would result in significant improvements to the compliance requirements in the proposed NSPS. 

A finding that title V would not result in significant improvements to the compliance requirements in the 

proposed NSPS would support a conclusion that title V permitting is ‘‘unnecessary’’ for non-major sources 

subject to the stationary combustion turbine NSPS. 

                                                           

1 CAA section 502(a) prohibits title V exemption for any major source, which is defined in CAA section 501(2) and 40 CFR 

70.2

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 The legislative history of section 502(a) suggests that EPA should not grant title V exemptions where doing so would 

adversely affect public health, welfare or the environment. (See Chafee-Baucus Statement of Senate Managers, Environment 

and Natural Resources Policy Division 1990 CAA Leg. Hist. 905, Compiled November 1993.) 
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One way that title V may improve compliance is by requiring monitoring (including recordkeeping designed to 

serve as monitoring) to assure compliance with permit terms and conditions reflecting the emission limitations 

and control technology requirements imposed in the standard [See 40 CFR 70.6(c)(1) and 40 CFR 71.6(c)(1)]. 

The ‘‘periodic monitoring’’ provisions of 40 CFR 70.6(a)(3)(i)(B) and 40 CFR 71.6(a)(3)(i)(B) require new 

monitoring to be added to the permit when the underlying standard does not already require ‘‘periodic testing or 

instrumental or non-instrumental monitoring (which may consist of recordkeeping designed to serve 

monitoring).’’ In addition, title V imposes a number of recordkeeping and reporting requirements that may be 

important for assuring compliance. These include requirements for a monitoring report at least every 6 months, 

prompt reports of deviations, and an annual compliance certification [See 40 CFR 70.6(a)(3) and 40 CFR 

71.6(a)(3), 40 CFR 70.6(c)(1) and 40 CFR 71.6(c)(1), and 40 CFR 70.6(c)(5) and 40 CFR 71.6(c)(5)]. To 

determine whether title V permits would add significant compliance requirements to the NSPS, EPA compared 

the title V monitoring, recordkeeping and reporting requirements mentioned above to those requirements for the 

stationary combustion turbines in subpart KKKK and concluded they are sufficient. Subpart KKKK requires 

annual compliance demonstration tests, and the notification requirements of §60.8 ensure that the Administrator 

and delegated authorities are aware of tests and other events before they are performed to provide opportunity for 

observation. In addition, records must be maintained and excess emissions and monitor downtime reports must be 

submitted in accordance with §60.7(c), and the results of performance tests must be submitted to EPA’s 

WebFIRE database. In light of the above, EPA determined that additional monitoring through title V is not 

needed and that the monitoring, recordkeeping and reporting requirements in subpart KKKK are sufficient to 

assure compliance with the rule. 

The second factor EPA considered is whether title V permitting would impose significant burdens on stationary 

combustion turbine NSPS non-major sources and whether that burden would be aggravated by any difficulty these 

sources may have in obtaining assistance from permitting agencies. Subjecting any source to title V permitting 

imposes certain burdens and costs that do not exist outside of the title V program. The EPA has estimated that the 

average cost of obtaining and complying with a title V permit was $65,700 per source for a 5-year permit period, 

including fees [See Information Collection Request (ICR) for Part 70 Operating Permit Regulations, January 

2007, EPA ICR Number 1587.07]. The EPA does not have specific estimates for the burdens and costs of 

permitting the stationary combustion turbine NSPS non-major sources; however, there are certain activities 

associated with the 40 CFR part 70 and 40 CFR part 71 rules that are mandatory and impose burdens on any 

facility subject to title V. They include reading and understanding permit program regulations; obtaining and 

understanding permit application forms; answering follow-up questions from permitting authorities after the 

application is submitted; reviewing and understanding the permit; collecting records; preparing and submitting 

monitoring reports; preparing and submitting prompt deviation reports, as defined by the State, which may 

include a combination of written, verbal and other communication methods; collecting information, preparing and 

submitting the annual compliance certification; preparing applications for permit revisions every 5 years; and, as 

needed, preparing and submitting applications for permit revisions. In addition, although not required by the 

permit rules, many sources obtain the contractual services of consultants to help them understand and meet the 

permitting program’s requirements. The ICR for 40 CFR part 70 provides additional information on the overall 

burdens and costs, as well as the relative burdens of each activity described here. Also, for a more comprehensive 

list of requirements imposed on 40 CFR part 70 sources (hence, burden on sources), see the requirements of 40 

CFR 70.3, 40 CFR 70.5, 40 CFR 70.6, and 40 CFR 70.7. The activities described above, which can be extensive 

and time consuming, could be a significant burden on the non-major sources that would be subject to subpart 

KKKK. Furthermore, some of the non-major sources that would be subject to subpart KKKK may be small 

entities that may lack the technical engineering or monetary resources and, therefore, need assistance from the 

permitting authorities to comply with the title V permitting requirements. The Economic Impacts Analysis (EIA) 

of the 2006 final rule estimated that approximately 1 in 10 new combustion turbines would be owned by a small 

entity. These small entities could include combined heat and power (CHP) installations at small manufacturing 

facilities and commercial and institutional buildings. Although EPA does not know the total number of non-major 

sources that would be subject to subpart KKKK, based on the growing interest in using natural gas-fired 

stationary combustion turbines for electric power generation, gas pipeline transmission, and CHP, EPA 

anticipates a significant increase in the number of permit applications that permitting authorities would have to 

process each year. This significant burden on the permitting authorities raises a concern with the potential 
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difficulty or delay that the small entities may face in obtaining sufficient assistance from the permitting 

authorities. 

The third factor EPA considered is whether the costs of title V permitting for these area sources would be 

justified, taking into consideration any potential gains in compliance likely to occur for such sources. The EPA 

concluded in considering the first factor, that the monitoring, recordkeeping and reporting requirements in subpart 

KKKK assure compliance with the standards, that title V would not result in significant improvement to these 

compliance requirements and, that, in some instances, certain title V compliance requirements may not be 

appropriate. In addition, as discussed above in consideration of the second factor, there are concerns with the 

potential burdens that title V may impose on these sources. In addition, below in consideration of the fourth 

factor, there are adequate implementation and enforcement programs in place to assure compliance with subpart 

KKKK. In consideration of the above factors, the costs of title V permitting are not justified for the sources 

proposed to be exempted. Accordingly, the third factor supports title V exemption for the stationary combustion 

turbine NSPS non-major sources. 

The fourth factor is whether there are implementation and enforcement programs in place that are sufficient to 

assure compliance with subpart KKKK for stationary combustion turbine sources without relying on title V 

permits. The CAA provides States the opportunity to take delegation of NSPS. Before the EPA will delegate the 

program, EPA will evaluate the State programs to ensure that States have adequate capability to enforce the CAA 

section 111 regulations and provide assurances that they will enforce the NSPS. In addition, EPA retains authority 

to enforce subpart KKKK anytime under CAA sections 111, 113 and 114. Accordingly, EPA can enforce the 

monitoring, recordkeeping and reporting requirements, which, as discussed under the first factor, are adequate to 

assure compliance with subpart KKKK. Also, States and the EPA often conduct voluntary compliance assistance, 

outreach and education programs (compliance assistance programs), which are not required by statute. These 

additional programs will supplement and enhance the success of compliance with subpart KKKK. The statutory 

requirements for implementation and enforcement of subpart KKKK by the delegated States, EPA and the 

additional assistance programs described above together are sufficient to assure compliance with the rule without 

relying on title V permitting. 

The balance of the four factors supports a finding that title V permitting is unnecessarily burdensome for the 

stationary combustion turbine NSPS non-major sources. While a title V permit might add additional compliance 

requirements if imposed, there would not be significant improvements to the compliance requirements in subpart 

KKKK because these requirements are specifically designed to assure compliance with the rule. Given little or no 

potential gain in compliance if title V were required, the costs of title V permitting are not justified in this case. 

Finally, there are adequate implementation and enforcement programs in place to assure compliance with subpart 

KKKK. 

In addition to evaluating whether compliance with title V requirements is ‘‘unnecessarily burdensome,’’ EPA also 

considered, consistent with guidance provided by the legislative history of section 502(a), whether exempting 

stationary combustion turbine NSPS non-major sources from title V requirements would adversely affect public 

health, welfare or the environment. The title V permit program does not impose new substantive air quality 

control requirements on sources, but instead requires that certain procedural measures be followed, particularly 

with respect to determining compliance with applicable requirements. As stated in our consideration of factor one, 

title V would not lead to significant improvements in the compliance requirements for the proposed NSPS. For 

the reason stated above, we believe that exempting these non-major sources from title V permitting requirements 

would not adversely affect public health, welfare or the environment. 

Based on the above analysis, title V permitting would be ‘‘unnecessarily burdensome’’ for stationary combustion 

turbine NSPS non-major sources. We are, therefore, proposing that these non-major sources be exempt from title 

V permitting requirements.