Compliance Assurance Monitoring Rulemaking (40 CFR Parts 64, 70, and 71)

Responses to Public Comments (Part III)

(Comments Submitted in Response to 1996 Part 64 Dr aft)

October 2, 1997i October 2, 1997

Compliance Assurance Monitoring Rulemaking (40 CFR Parts 64, 70, and 71) Responses to Public Comments (Part III)

Table of Contents

Page

INTRODUCTION ......................................

................................................... .................... 1

Section 1: Definitions ...........................

................................................... ...................... 4

Section 1.1: Control Device Definition ............

................................................... .. 4 Section 1.2: Capture System Definition ............ ................................................ 18 Section 1.3: Continuous Compliance Determination Me thod Definition ............ 20

Section 1.4: Other Definitions ....................

................................................... .... 22

Section 2: Applicability .........................

................................................... .................... 34

Section 2.1: Applicability of 1996 CAM Draft Subpa rt B ................................... 34 Section 2.2: Subpart C Applicability .............

................................................... . 61 Section 2.3: Exemptions ..........................

................................................... ...... 66 Section 2.4: Miscellaneous Applicability Issues .. ............................................. 96

Section 3: Implementation ........................

................................................... ............. 102

Section 3.1: Timing of Implementation ............ ............................................... 102

Section 3.2: CAM Elements in Permits ............ ............................................. 123 Section 3.3: Operation of Monitoring ............. ................................................. 1 48 Section 3.4: Existing Monitoring .................

................................................... . 152 Section 3.5: Costs to Permitters/Programmatic Opti on .................................. 154

Section 3.6: Information for Permitters .......... ................................................. 1 60 Section 3.7: Approval Procedures ................. ................................................. 1 62

Section 4: Recordkeeping and Reporting ...........

................................................... ... 165

Section 4.1: Semiannual Reports .................. ................................................. 1 65 Section 4.2: Reporting-QIP Notice ................ ................................................. 1 67 Section 4.3: Records to be Kept ..................

................................................... 171 Section 4.4: Alternative Recordkeeping Formats ... ........................................ 172 Section 4.5: Off-site Storage of Records ......... ............................................... 173 Section 4.6: Other Reporting and Recordkeeping Iss ues .............................. 174ii

Section 5: Savings Provisions ....................

................................................... ............ 176

Section 6: Monitoring Design Criteria ............

................................................... ......... 178

Section 6.1: Subpart B-General Criteria .......... ............................................... 178 Section 6.2 Subpart B Performance Criteria ....... ........................................... 198 Section 6.3: Use of CEMS, COMS, PEMS in Subpart B ................................ 211

Section 6.4: Cost/Source Features as Factors in Mo nitoring Selection ......... 218

Section 7: Subpart B CAM Plans ...................

................................................... ........ 222

Section 7.1: General Comments .................... ................................................ 22 2

Section 7.2: Permit Interface ....................

................................................... ... 224 Section 7.3: Ability to Add Elements ............. ................................................. 2 26

Section 7.4: Corrective Action Provisions ........ ............................................... 226

Section 7.5: Miscellaneous Comments .............. ............................................ 229

Section 8: Documentation Requirements ............

................................................... ... 232

Section 8.1: Rationale for Monitoring ............ ................................................. 2 32 Section 8.2: Indicator Range Verification ........ ............................................... 234

Section 9: Subpart C Requirements ................

................................................... ....... 246

Section 9.1: General Comments ..................... ................................................ 24 6 Section 9.2: No Monitoring Option ................. ................................................. 2 51 Section 9.3: More Stringent State/Local Requirement s .................................. 252

Section 9.4: Miscellaneous Comments ............... ............................................ 252

Section 10: Quality Improvement Plans (QIPs) .....

................................................... . 254

Section 10.1: QIPs - Need for More Flexibility .. ............................................ 254 Section 10.2: Threshold for Requiring a QIP (64.10 ) ..................................... 258 Section 10.3: Elements of QIPs (64.11(a)) ........ ............................................. 267 Section 10.4: Timing of QIPs (64.11(b)) .......... ............................................... 269 Section 10.5: Recordkeeping and Reporting for QIPs (64.11(c)) ................... 272

Section 11: [Reserved] ...........................

................................................... ................ 273

Section 12: Part 70/71 Revisions .................

................................................... .......... 274

Section 12.1: Monitoring Revisions ............... ................................................. 2 74 Section 12.2: Compliance Certification ........... ............................................... 278

Section 12.3: Deviation Definition ...............

................................................... 290iii

Section 13: General Statutory Issues .............

................................................... ........ 294

Section 14: Enforcement Concerns .................

................................................... ...... 302

Section 14.1: Effect on Existing Standards ....... ............................................. 302 Section 14.2 Relationship of CAM and Credible Evi dence (CE) Rule .......... 308 Section 14.3: Purpose of CAM and its Role in Enfor cement .......................... 317

Section 14.4: Effectiveness of CAM Information for Enforcement ................ 324

Section 14.5: CAM Shield .........................

................................................... .. 328

Section 14.6: Miscellaneous ......................

................................................... .. 331

Section 15: Procedural Issues ...................

................................................... ............ 332

Section 15.1: Administrative Procedures Act ...... ........................................... 332 Section 15.2: OMB Review/Regulatory Impact Analysi s (prior to release of RIA sections) .......................... ............................................... 343 Section 15.3: Regulatory Impact Analysis (Reopened Comment Period) ...... 346 Section 15.4: Paperwork Reduction Act ............ ............................................. 354

Section 15.5: Unfunded Mandates Reform Act ....... ....................................... 355 Section 15.6: Regulatory Flexibility Act ......... ................................................. 3 55

Section 16: Guidance .............................

................................................... ................ 357

Section 17: General Comments .....................

................................................... ........ 365

Section 17.1: CAM Approach .......................

.................................................. 365 Section 17.2: General Comments on the Current Prop osal ........................... 367 Section 17.3: Complexity and Clarity of CAM ...... ........................................... 370 Section 17.4: CAM Rulemaking Process.............. .......................................... 372

Section 17.5: Other General Concerns ............. ............................................. 373

Section 17.6: Comments on Credible Evidence Rulema king ......................... 374

Section 17.7: Benefits and Burdens of CAM Rule ... ....................................... 377 Section 17.8: Delegation of Authority to States .. ............................................ 381 Section 17.9: Implementation Concerns and Recommen dations .................. 383

Appendix III-A: List of Comment Letters for Respons e (Part III): EPA Air Docket

A-91-52October 2, 1997

Compliance Assurance Monitoring Rulemaking (40 CFR Parts 64, 70, and 71) Responses to Public Comments (Part III)

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ivOctober 2, 1997

Compliance Assurance Monitoring Rulemaking (40 CFR Parts 64, 70, and 71) Responses to Public Comments (Part III)

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vOctober 2, 1997

Compliance Assurance Monitoring Rulemaking (40 CFR Parts 64, 70, and 71) Responses to Public Comments (Part III)

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viOctober 2, 1997

INTRODUCTION

This Part III of the three part Compliance Assuranc e Monitoring Rulemaking Responses to Public Comment Document summarizes the written comments submitted during the comment period on the 1996 part 64 Draft and the comment period on the impact analyses for the rulemaking and the credible evidence relationship (see 61 FR 41991, August 13, 1996 and 60 FR 20147, April 25, 1 997).

The Compliance Assurance Monitoring Rule contained in part 64 and the conforming amendments to parts 70 and 71 are being promulgated in response to the direct mandate in section 114(a)(3), as well as the supporting authority in sections 504(b) and 113, of the Clean Air Act (the "Act"). Part 64 builds on existing regulatory monitoring approaches in order to provide a reasona ble assurance that owners and operators are complying with emissions limitations or standards. The regulations require owners and operators to meet minimum monito ring requirements designed to ensure that control measures are operated and maint ained in a manner consistent with good air pollution control practices. The amendmen ts to parts 70 and 71 clarify the relationship between part 64 and the compliance cer tification process under the title V operating permits program.

The EPA proposed these regulations on October 22, 1 993, at 58 FR 54648. The proposal announced the opportunity for written public comment until December 20, 1993, which date was subsequently extended until Ja nuary 31, 1994. The proposal also provided notice of a public hearing, which was conducted in Washington, D.C. on November 19, 1993. The public comment period was r eopened from December 28, 1994 until February 3, 1995 to take additional comm ent on a limited number of specific

issues.

The Agency decided to redesign elements of the part 64 rulemaking in April 1995. On May 31, 1995, the EPA held a public heari ng to discuss the potential redesign of part 64. Follow-up meetings were held in June 1995 in Washington, D.C., Cincinnati, Dallas, and Portland, Oregon. An initi al draft of the compliance assurance monitoring rule and preamble were made available fo r public discussion and comment at another public meeting held in September 1995. Based on the public comment

received on that interim draft, EPA released a seco nd draft in August 1996 and once again took comment on the draft part 64 rule. In a ddition, a public meeting was held to obtain oral input as well.

A complete transcript of the initial public hearing , summaries of all subsequent public meetings, the full text of each comment lett er, and the supporting information used in developing the regulations, are contained i n Docket No. A-91-52. This docketCAM RTC (Part III)

October 2, 1997 Page 3

is available for public inspection and copying betw een 8:00 a.m. and 5:30 p.m. Monday through Friday, excluding government holidays, at R oom M-1500, Waterside Mall, 401 M Street S.W., Washington, D.C. The public comment s on the original enhanced monitoring proposal are found at Section IV-D of th e docket and are numbered from IV-D-1 through IV-D-772. When the Agency determine d to redesign the original proposal in April 1995 to reflect the CAM approach, new material relied on for the rulemaking was placed in Section VI of the docket. The public comments are included in section VI-D of the rulemaking docket.

In March 1996, EPA decided to proceed with the cred ible evidence provisions proposed with the original enhanced monitoring requ irements. The Agency took additional public comment on those provisions and t hose comments are included in the docket as items IV-D-774 through IV-D-843. The Age ncy has responded to those comments as well as comments submitted in response to the original proposal that related to the credible evidence provisions in fina lizing the credible evidence provisions on February 24, 1996 (62 FR 8314). See Docket A-91 -52-V-C-2 for a copy of that response to comments document, which is referred to as the "CE Response Document" throughout the remainder of this document.

Because of the extended time period over which comm ents have been submitted on this rulemaking, this document is divided into t hree parts. First, Part I addresses the comments received during the initial public com ment period (docket items IV-D-1 through IV-D-542). Part II then addresses the comm ents submitted during the December 1994-February 1995 reopened comment period (docket items IV-D-547 through IV-D-762). Finally, Part III addresses the comments submitted in response to the August 1996 Part 64 draft (docket items VI-D-11 4 through VI-D-243), as well as comments submitted during the reopened comment peri od in April-May 1997 (VI-D-244 through VI-D-274). Comments submitted early in the development of the CAM approach were considered by the Agency in formulati ng both the 1995 Part 64 Draft

and the 1996 Part 64 Draft. The details of those c omments related to preliminary staff-level ideas about possible rule structures. Comments on major structural issues have remained generally consistent over time (i.e., use of Part 64 data for enforcement, implementation through Part 70 permits, scope of ap plicability, and the level of justification and testing needed to support propose d monitoring). Thus, the Agency believes that the release of follow-up drafts of th e rule and accompanying discussion materials, and the responses to comments included i n Parts I-III of this document adequately address these additional comments.

The reader should note that many of the most signif icant comments from these comment periods are also responded to in the preamb le to the final rule, and theCAM RTC (Part III)

October 2, 1997 Page 4

responses in this document cross-reference the appr opriate discussion in the preamble where appropriate.

This document also includes appendices. Appendices I-A, II-A and III-A are lists of all comment letters received in the rulemaking d ocket during the initial comment period, the 1994-1995 reopened comment period, the comment period following release of the 1996 part 64 Draft, and the 1997 reo pened comment period, as well as all oral testimony provided at the public hearing. (Comments submitted to the docket use a "IV-D-" or a "VI-D" prefix, while comments fr om the public hearing use a "IV-F" prefix.)

This document includes many citations to other auth orities outside of part 64 or the conforming amendments. These citations are gen erally not followed by their origin,

such as "of the Clean Air Act." Rather, the reader can recognize the origins of the sections by their nature: sections of existing EPA regulations are preceded by 40 CFR, except in the case of 40 CFR part 70, which is frequently cited only as "part 70," and sections therein cited as, e.g. , "§ 70.2." Sections of the Act are referenced by a three digit number, such as "114" or "504." This d ocument also often refers to "State" or "permitting authority." The reader should assum e that where the document refers to a "State," the reference also includes local air po llution agencies, Indian tribes, and territories of the United States to the extent they are or will be the permitting authority for their area, or have been or will be delegated p ermitting responsibilities under the Act. In addition, the term "permitting authority" would also include EPA to the extent EPA is the permitting authority of record.CAM RTC (Part III)

October 2, 1997 Page 5

Section 1: Definitions

Section 1.1: Control Device Definition

1.1.1: Breadth of Control Device Definition

Comment a: Many commenters argued that the control device definition included in the

1996 CAM Draft was too broad. The concerns describe d by these

commenters and the recommendations made are describ ed below.

One of these commenters expressed concern that too many emissions units would be subject to subpart B of the 1996 CAM Draft, resulting in higher costs without any significant environmental benefit.

Response: The Agency disagrees that the rule would require monitoring on too many

emission units with no environmental benefit. The Agency believes that the CAM approach results in tangible benefits to th e general public health and welfare. A primary benefit of implementing par t 64 will be a reduction in overall emissions through increased co mpliance with the requirements of the Act. The key elements of part 64 that will result in these reductions are monitoring that alerts owners or operators to deteriorating control conditions and the associated requirement that the owner or operator take the steps necessary to corre ct those conditions. This approach emphasizes minimizing emissions by av oiding or quickly remedying situations that may involve emissions in excess of applicable requirements. In addition to the direct environmen tal benefit of decreased emissions, increased compliance rates als o achieve a corollary economic benefit. As a general matter, increased c ompliance rates with existing rules will lower the long-term overall cos t of air pollution control by decreasing the need for additional regulations to o btain necessary emission reductions, especially for nonattainment a reas.

The Agency believes that there is adequate evidence that monitoring control performance will improve continuing complia nce with applicable requirements. Studies conducted by the Agency have shown that control device operation and maintenance problems are a sig nificant factor in creating excess emissions (see docket items II-A-22 and VI-A-2). InCAM RTC (Part III)

October 2, 1997 Page 6

addition, these studies have documented that assump tions about compliance status are often inaccurate when detaile d inspections of control devices are conducted (see, for example, do cket item VI-A-2).

Letter(s): American Petroleum Institute (VI-D-146)

Comment b: One commenter argued that the broad defi nition would cause confusion

over the application of other air rules by introduc ing doubts about what is process equipment and what is a control device. Thi s commenter pointed out that a broad control device definition would illegally change the applicability of underlying rules by imposing c ontrol device requirements on a device defined in an underlying r ule as process equipment.

Response: To address this concern, the final rule specifies that if an applicable

requirement establishes that particular equipment w hich otherwise meets

the definition of a control device does not constit ute a control device as applied to a particular pollutant-specific emission s unit, then that definition shall be binding for purposes of part 64.

Letter(s): Exxon Chemical Americas (VI-D-128)

Comment c: Several commenters noted that it was dif ficult to distinguish between

control devices and process equipment under the def inition of control device in the 1996 CAM Draft. Chemical industry co mmenters stated that the incorporation of chemical unit operations and process units in the list of control devices opens the door to a potenti al claim that any chemical unit operation or process which involves V OCs is a control device and subject to CAM. Other commenters noted that the rule language in the 1996 CAM Draft did not reflect the criteria for making judgments on the classification of devices that can be either process or control equipment provided in that draft's discussi on and recommended including those criteria listed in the rule definit ion itself.

Chemical industry and other commenters proposed rev isions to the definition of control device and accompanying revis ions to the guidance document to consider the purpose of the device incl uding such factors as the cost savings from recovered product compared to the cost of the equipment and whether the device would be installed in the absence of airCAM RTC (Part III)

October 2, 1997 Page 7

regulations. A commenter discussed the use of cycl one separation on FCCUs used to recover catalyst and catalyst fines a s an example of the need to distinguish control devices from process eq uipment that incidentally may remove pollutants but are used to make the process work not to comply with emission limits. One chemical i ndustry commenter requested that EPA establish that chemical processe s which handle materials that would be pollutants if released to t he atmosphere are not control devices in order to fulfill the preamble's promise of a narrow

definition.

However, one commenter argued that the criterion ba sed on cost comparisons is inappropriate because cost aspects c an change over time and others pointed out that a control measure may b e installed for a safety reason even though its cost is disproportion ate to the value of product recovered. These commenters argued that th e criteria in the preamble may be inappropriate and that the sole bas is for considering equipment to be a control device is whether the onl y purpose of such equipment is to destroy or remove air pollutants.

Another commenter stated that, at a minimum, the de finition should include the requirement that the primary function o f the equipment is to remove air pollutants. The commenter requested that equipment that has a secondary function of removing pollutants should be specifically exempted and gave examples including: mechanical c ollectors used to remove pneumatically conveyed material from the con veying air stream or used to capture product prior to final control by a nother piece of equipment; wet scrubbers used to capture product pr ior to final control by other equipment; sulfuric and nitric acid plants wh ich use double contact and extended absorption processes as inherent proce ss equipment to enhance product recovery; and process condensers us ed in chemical manufacturing and other industries to recover produ ct.

Other commenters noted that adding language that re fers to the purpose

for which a device is installed to the control devi ce definition would serve the purpose of excluding recovery devices that are integral to a process

from the CAM definition of "control device." Sever al commenters proposed specific language to be added to definitio n of the "control device" to exclude recovery devices and discussed t he appropriate distinction between a recovery device as an integra l part of a process and as an add-on control by using a distillation column example where theCAM RTC (Part III)

October 2, 1997 Page 8

vent condenser may or may not fall within the equip ment monitored by the source to maximize the economic benefit of product recovery.

One commenter added a request that EPA establish a presumption that a source's determination that particular equipment is process equipment instead of a control device is correct and require the permitting authority to meet a significant burden to overcome that presumpt ion.

A number of commenters focused on how recovery devi ces would be

treated under the control device definition in the 1996 CAM Draft. Two commenters argued that the CAM definition of "contr ol device" should be

consistent with recent rules such as the HON or the Refinery MACT and should not include devices such as adsorption devic es and condensers which are defined as recovery devices in many curre nt regulations. One of these commenters felt that although MACT standards are exempt from

CAM, the definition in the 1996 CAM Draft could cau se confusion leading to regulatory uncertainty or overlaps. The commente r pointed to units such as sulfur recovery plants as devices that are part of the refinery process and should not be treated as control device s for purposes of CAM. The other commenter pointed out that the HON rule demonstrates EPA's recognition that control devices are operatio ns that destroy air pollutants or collect air pollutants for destructio n, since the calculation of the TRE takes place after the last recovery device. The commenter

recommended that CAM be made consistent with this c urrent, progressive view which encourages pollution prevention by not s ubjecting product recovery operations to air pollution control requir ements. One commenter added that an upstream recovery device sh ould not be considered an active control since the operator has every incentive to maintain and operate it properly.

Response: The Agency generally agrees with these co ncerns and, based on the

comments received, the final rule defines "inherent process equipment" as "equipment that is necessary for the proper or s afe functioning of the process, or material recovery equipment that the ow ner or operator documents is installed and operated primarily for p urposes other than compliance with air pollution regulations." In add ition, the control device

definition has been revised to include a list of se veral control techniques

that do not constitute "control devices" as defined in part 64. Part 64 makes clear that the responsibility to identify pro cess equipment is that of the source owner or operator in preparing the permi t application. In most cases, this activity is already part of the permitt ing process (see, e.g., 40CAM RTC (Part III)

October 2, 1997 Page 9

CFR 70.5). However, EPA does not believe it would be appropriate to create a presumption that a source owner’s determin ation of equipment as inherent process equipment is correct without pe rmitting authority

review.

Letter(s): Air Products and Chemicals, Inc. (VI-D-1 86); American Automobile

Manufacturers Association (VI-D-157); American Gas Association (VI-D-154); American Petroleum Institute (VI-D-146) ; Chemical Manufacturers Association (VI-D-152); Clean Air Imp lementation Project (VI-D-153); Coalition for Clean Air Implementation (VI-D-164); Coastal Corporation (VI-D-123); Colorado Association of Com merce and Industry (VI-D-182); DuPont Engineering (VI-D-127); Eastman Chemical Company (VI-D-173); Eli Lilly Company (VI-D-124); Exxon Che mical Americas (VI-D-128); Exxon Company, USA (VI-D-135); General Electric Company (VI-D-156); Independent Liquid Terminals Associatio n (VI-D-178); KBN Engineering and Applied Sciences, Inc. (VI-D-229); Kennecott Corporation (VI-D-119); Mobil Corporation (VI-D-115 ); Ohio Chamber of Commerce, et al (VI-D-160); Pennzoil Company (VI-D- 133); Texaco Environment Health & Safety (VI-D-199)

Comment d: Some commenters recommended adding a def inition of "active control

device" to fulfill the Agency's stated intent to fo cus the rule on active controls and to provide clarity on a term often use d by the Agency in

connection with this rule. Certain commenters stat ed that the definition should turn on whether or not the device requires a ttention to maintain good operation.

Response: The Agency agrees with these concerns and has provided in the final rule

that the requirements of part 64 apply only to poll utant-specific emissions units that rely on a control device to achieve comp liance. The final rule provides a definition of "control device" that refl ects the focus of part 64 on those types of control devices that are usually considered as "add-on controls." This definition does not encompass all conceivable control approaches but rather those types of control device s that may be prone to upset and malfunction, and that are most likely to benefit from monitoring of critical parameters to assure that th ey continue to function properly. In addition, a regulatory obligation to monitor control devices is appropriate because these devices generally are not an inherent part of the source's process and may not be watched as clos ely as devices that have a direct bearing on the efficiency or producti vity of the source.CAM RTC (Part III)

October 2, 1997 Page 10

The control device definition is based on similar d efinitions in some State regulations (see, e.g., North Carolina Administrati ve Code, title 15A, chapter 2, subchapter 2D, section .0101 (definition of "control device");

Texas Administrative Code, title 30, section 101.1 (definition of "control device"). The definition is in contrast to broader definitions of "control device," "air cleaning equipment," "control measure ," or similar terms included in other States' regulations (see, e.g., C odes, Rules, and Regulations of the State of New York, title 6, chap ter III, section 200.1 (definition of "air cleaning device" or "control eq uipment")). These broader definitions often include any method, proce ss or equipment which

removes, reduces or renders less noxious air contam inants released to the ambient air. Those types of controls could inc lude material substitution, process modification, operating restr ictions and similar types of controls. The definition in part 64 relies on t he narrow interpretation of a control device that focuses on control equipment that removes or destroys air pollutants.

Letter(s): Chemical Manufacturers Association (VI-D -152); Coastal Corporation

(VI-D-123); Colorado Association of Commerce and In dustry (VI-D-182); Exxon Chemical Americas (VI-D-128)

Comment e: A few commenters criticized the criteria included in the discussion

accompanying the 1996 CAM Draft because they do not distinguish equipment which reduces the formation of pollutants from control devices. They asked that EPA clarify in the rule that pollu tion prevention devices,

such as low NO

x burners, are not considered control devices and al so argued that this clarification is consistent with t he intent stated in the CAM preamble to adopt a narrow definition of control de vice. These

commenters added that this clarification is necessa ry to prevent the imposition of CAM requirements on units not intende d to be covered and to promote consistent national implementation of CA M. Finally, they

noted that the clarification is consistent with EPA 's Common Sense Initiative to reduce unnecessary regulation that ca n impede pollution prevention. One commenter proposed clearly excludi ng these devices by adding a definition of pollution prevention referri ng to any activity that reduces the release of air pollutants prior to recy cling, treatment, or disposal and noted that the proposed definition is similar to the definition proposed for the PSD/NSR rule. 61 Fed. Reg. 38250, 38324 (July 23, 1996.)CAM RTC (Part III)

October 2, 1997 Page 11

Response: The Agency generally agrees with the comm enters concerns as far as the

use of low-NO

x burner technology and certain other types of combu stion control measures. These technologies were not incl uded n the control device definition in the August 1996 Draft CAM rule and are not included

in the definition of "control device" in the final rule. For most large emissions units that employ such measures, such as utility boilers, separate applicable requirements already require th e use of CEMS or similar monitoring for such units. Under part 70, that monitoring will have to be included in the permit and considered in cert ifying compliance with applicable requirements. Some types of combustion units (e.g.

, package boilers and engines) that may use low-NO

x burner technology do not use the same types of technology used by utili ty and large industrial boilers. The technology used for many units with automatic combustion control does not provide significant operational fl exibility that could afford the owner or operator with an opportunity or incent ive to manipulate NO

x control levels. For these types of units, the reco rdkeeping of regular inspection and maintenance of the low-NO

x burners (e.g. , annular flow ratio adjustment settings, burner replacement, etc. ) in combination with periodic checks of emission levels with appropriate test methods, as necessary, are very likely sufficient to ensure tha t the unit is being operated in a manner consistent with good air pollu tion control practices

and that the low-NO

x technology continues to reduce emissions at least to the level of the standard. The general monitoring requirements in part 70 are adequate to assure that this type of appropriat e monitoring is employed.

For these reasons, EPA believes that monitoring for this control technology is best addressed through part 70 period ic monitoring requirements and not through expansion of part 64 t o units with these types of control measures. Of course, if there are particular units which raise a significant continuous compliance concern, such as units with an historically poor compliance history, the permittin g authority can require more detailed monitoring under the general part 70 monitoring provisions given that the permit must include appropriate moni toring for assuring compliance with the permit. In those cases, permit ting authorities may want to consider elements of part 64 as potentially appropriate, but they would not be bound to satisfy each element of part 64.

Letter(s): American Gas Association (VI-D-154); Col umbia Gas System Service

Corporation (VI-D-175); Enron Operations Corp. (VI- D-235)CAM RTC (Part III)

October 2, 1997 Page 12

1.1.2: General Supporting Comments

Comment a: One commenter stated general support for the definition of control device

and/or guidance document as being accurate and cons istent with other regulations. A commenter who found the control dev ice definition in the

1996 CAM Draft to be too broad indicated that it wa s an improvement over the previously proposed definition of "control technology" since the control device definition is limited to "equipment" rather than "methods," and eliminates specific references to "process elem ents" or "other forms of limiting emissions." Other commenters summarize d and offered support for Agency positions reflected in the defin ition, such as a determination that various pollution prevention tec hniques, including NO

x control techniques such as modified furnace/burner design, staged combustion, reduced combustion-air preheat, and low excess air firing, are not active control devices, and recognition tha t permitting authorities should exercise discretion to exclude equipment tha t in a particular case is an inherent element of the process even though i n other cases it may

be considered a control device.

Response: No response necessary.

Letter(s): Chemical Manufacturers Association (VI-D -152); Kennecott Corporation

(VI-D-119); Pennsylvania Chamber of Business and In dustry (VI-D-114); The Fertilizer Institute (VI-D-145)

1.1.3: Comments on the Control Device Guidance

Comment a: A number of commenters objected to ident ification of certain types of

equipment as "control devices" in EPA's control dev ice guidance document. General recommendations included clarify ing that some of the equipment types in Table 1 can also be recovery devices that are integral to a process and expanding the guidance to include descriptions of each device that help to distinguish between pro cess equipment and control equipment.

Response: As noted in responses to several comments in section 1.1.1 (Part III)

above, the Agency recognizes that some equipment id entified as control equipment may, in some applications, be more correc tly characterized asCAM RTC (Part III)

October 2, 1997 Page 13

inherent process equipment. The final rule provide s for the owner or operator to identify such situations in the permit application and indicate that monitoring under part 64 is not required. The permitting authority will evaluate whether a determination that such equipmen t qualifies as inherent processing equipment is correct upon permi t application review.

Letter(s): Eastman Chemical Company (VI-D-173); Exx on Chemical Americas

(VI-D-128)

Comment b: A group of comments were submitted on th e issue of how certain NO

x

controls should be treated for the purposes of CAM. One commenter

stated that low NO

x burners on gas-fired turbines and controllers for the adjustment of air to fuel ratio should be included on the list of equipment

which is not considered a "control device" under CA M because this equipment neither destroys nor removes air pollutan ts. Another commenter argued that FGR and water injection for N O

x control likewise

should not be included in the definition as control device equipment adding that these procedures are integral to the co mbustion system design.

Other commenters stated that treating clean burn co mbustion control utilized in internal combustion engines as outside the CAM control device

definition would be consistent with EPA's inclusion of both increased air flow (air injection, AIRS Code 031) and precombusti on chambers (staged combustion, AIRS code 025) on the list of technolog ies not considered

control devices. Two commenters listed several bas ic engine combustion control techniques, such as timing retard, lean com bustion modifications, turbo charging, after-cooling and fuel injection en hancements which EPA should exclude from the concept of "control device. " They added that the use of low emitting raw materials should be explici tly excluded (such as fuel sulfur limits), as should retrofitting with ce rtain equipment, such as a "lean-burn" kit installed on a "rich-burn" spark-ig nited engine.

An association of state and local agencies recommen ded adding Selective Catalytic Reduction (SCR) and components of low-NO

x burners

to the list of control devices.

Response: See response to Comment e, section 1.1.1 (Part III), above, regarding the

use of low-NO

x burner technology. The Agency disagrees that some of the technology mentioned including FGR, SCR, and wa ter or steamCAM RTC (Part III)

October 2, 1997 Page 14

injection, should not be considered active control technology for the purposes of part 64. Even though the technologies mentioned are directed at modifying the process operation rather than an end-of-pipe pollutant removal, these technologies are active in nature and do require generally continuous operator attention in order to assure proper operation (e.g. , monitoring of water or steam flow rates relative to fuel input rates, monitoring of catalytic temperatures t o assure reduction activity, monitoring of gas flow rate to assure pro per recirculation ratios). With respect to the comments concerning basic engin e combustion control techniques, the Agency notes that the final rule specifically excludes combustion design characteristics from the definition of a control

device.

Letter(s): American Gas Association (VI-D-154); Eng ine Manufacturers Association

(VI-D-117); Hawaiian Electric Company, Inc. (VI-D-1 65); NESCAUM (VI-D-192); NorAm Gas Transmission Company (VI-D-14 2)

Comment c: Comments on the classification of variou s types of devices included a

state commenter's identification of a number of typ es of equipment (with Aerometric Information Retrieval System codes inclu ded) as being listed as control devices in the guidance document (Docket Item VI-I-3) and objection to their classification as such. These ex amples included control devices for particulate matter, such as gravity col lectors (004, 005, 006), centrifugal collectors (007, 008, 009), mist elimin ators (014, 015), spray towers (052), filters (058, 059, 063, 064), cyclone s (075, 076, 077), wet cyclonic separators (085), and high efficiency part iculate air filters (101); sulfur plants (045) which the commenter described a s primarily a manufacturing process; sulfuric acid plants (043, 0 44) which the commenter stated typically satisfy emission limits through proper design. The commenter also stated that any system which uti lizes vapor collection equipment to route VOC to a control device that red uces VOC emissions and equipment used to recover VOC for the purpose o f recycling to the process (under Vapor recovery system (047)) should not be considered an active control device and that water curtains (0 86) and nitrogen blankets (087) are work practice techniques rather than control devices.

Other commenters stated that "no equipment" and num erous processes, including catalytic reduction, chemical oxidation, chemical neutralization, "process change" and process gas recovery, were imp roperly included as

control devices.CAM RTC (Part III)

October 2, 1997 Page 15

Response: See response to Comment c, section 1.1.1 (Part III), above, for general

control device definition. The final rule includes a provision for the owner or operator to identify certain types of product co llectors and process operations as inherent process equipment and, thus, may not be subject to the monitoring requirements in part 64. The dev ices mentioned by the commenter may fall into this category depending on application including gravity collectors, centrifugal collectors, mist el iminators, spray towers, filters, cyclones, wet cyclonic separators, and hig h efficiency particulate air filters, sulfur plants, sulfuric acid plants, organ ic vapor collectors, as well as, catalytic reduction, chemical oxidation, chemic al neutralization, "process change" and process gas recovery. On the other hand, the Agency believes that such devices installed and ope rated in order to meet an applicable emission limit should be subject to a ppropriate monitoring to provide a reasonable assurance of compliance.

Letter(s): Chemical Manufacturers Association (VI-D -152); Exxon Chemical

Americas (VI-D-128)

Comment d: One commenter asserted that the requirem ents of 40 CFR 60.18 are

sufficient to assure compliance for flares (023).

Response: The Agency agrees that certain types of m onitoring specified through

rulemaking and other publicly available documents, but not designated as continuous compliance determination methods, may be presumptively acceptable monitoring under part 64. The preamble to the final rule provides that the monitoring for flares as defined in § 60.18 qualifies as presumptively acceptable monitoring under § 64.4(b) (5).

Letter(s): Texas Natural Resource Conservation Comm ission (VI-D-189)

Comment e: One commenter argued against considering multiclones or centrifugal

collectors to be control devices pointing out that these devices are static and there are no performance parameters that apply to cyclones that can be manipulated by the operator once they are instal led.

Response: The Agency believes that cyclones and mul ticlones that are installed and

operated to comply with applicable emission limits should be subject to monitoring under part 64. The argument that such d evices are static is not persuasive given the need for the operator to m aintain sufficientCAM RTC (Part III)

October 2, 1997 Page 16

inertial conditions for adequate pollutant removal. On the other hand, the Agency agrees that the monitoring of the operation of cyclones and multiclones is generally a relatively simple matter of assuring that proper gas flow is maintained to ensure adequate pollutant removal velocity and that regular inspection and cleaning or other maint enance is conducted. For purposes of part 64, the Agency believes that m onitoring to assure that proper flow rates are maintained (e.g., minimu m pressure drop across the device) and recordkeeping of other maintenance practices would be sufficient and appropriate monitoring. The frequen cy of such monitoring may be reduced based on the level of control the ow ner or operator has over the operation of the devices.

Letter(s): Niagara Mohawk (VI-D-168)

Comment f: A few commenters requested that the cont rol device guidance document

include some POTW-unique control methods, such as c ertain process/equipment modification used to reduce air e missions, so that it is

clear that these methods are not control devices.

Response: The Agency believes that this concern is adequately addressed in the

revised definition of control device, which states that “...a control device does not include passive control measures that act to prevent pollutants from forming, such as the use of seals, lids, or ro ofs to prevent the release of pollutants, use of low-polluting fuel or feed stocks, or the use of combustion or other process design features or char acteristics.”

Letter(s): California Association of Sanitation Age ncies (VI-D-206); County

Sanitation Districts of Orange County, California ( VI-D-231); Tri-TAC (VI-D-225)

Comment g: Some commenters recommended including th e materials found in the

guidance document in the rule or an Appendix to the rule. One commenter recommended adding a definition of "contr ol method" to § 64.1 referring to equipment, processes, work practi ces and other methods of controlling emissions that should not be conside red control devices. This commenter preferred incorporating the list of technologies not to be considered control devices currently included in th e guidance document in the body of the regulation itself because permittin g authorities would not be bound by the guidance materials. The commenters asserted thatCAM RTC (Part III)

October 2, 1997 Page 17

these approaches would increase the consistency of CAM implementation and reduce burdens on both states and the regulated community.

Response: The EPA has not included an exhaustive li st of control devices that may

be inherent process equipment in the rule to preser ve the flexibility of permitting authorities to deal with individual situ ations. The Agency believes the specificity of the control device defi nition and EPA-developed guidance will assure consistent CAM implementation. The Agency also believes that the commenters’ suggestion to include a negative list of process operations that would not be considered con trol devices is

addressed in the revised definition of control devi ce - “...a control device does not include passive control measures that act to prevent pollutants from forming, such as the use of seals, lids, or ro ofs to prevent the release of pollutants, use of low-polluting fuel or feed stocks, or the use of combustion or other process design features or char acteristics.”

Letter(s): American Gas Association (VI-D-154); Nor Am Gas Transmission

Company (VI-D-142)

1.1.4: Miscellaneous Requests for Clarification

Comment a: A commenter requested clarification as t o whether passive control

devices, such as lids, primary and secondary seals for storage tanks, etc.,

are included in the CAM definition of "control devi ce" and whether EPA considered emission units employing such passive co ntrol devices to be subject to subpart B or subpart C of the 1996 CAM D raft.

Response: The passive control devices as described by the commenter are not

included in the definition of control device for pa rt 64 purposes, as explained in response to Comment f under section 1. 1.3 (Part III), above. Monitoring for such pollution control measures woul d be more appropriately addressed by the periodic monitoring requirements of part

70.

Letter(s): Ohio EPA, Division of Air Pollution Cont rol (VI-D-180)

Comment b: A commenter asked whether equipment must meet one or all three of the

criteria mentioned in the discussion accompanying t he 1996 CAM Draft toCAM RTC (Part III)

October 2, 1997 Page 18

be considered a control device and suggested includ ing an "and" or "or" in the criteria to clarify how many criteria must be m et.

Response: The Agency has revised and clarified the definition of control device in the

rule. The determination of what constitutes a cont rol device is provided in examples and additional discussion in the rule t ext.

Letter(s): South Dakota Department of Environment a nd Natural Resources

(VI-D-223)

Comment c: One commenter requested clarification on the terms "discharge" and

"ambient air," and another stated generally that th e definition should be clarified. A commenter pointed out that the defini tion should refer to discharge to the atmosphere not the ambient air bec ause other EPA rules define the ambient air to be places to which the ge neral public has

access.

Response: The definition of control device has been changed to “... equipment, other

than inherent process equipment, that is used to de stroy or remove air pollutant(s) prior to discharge to the atmosphere.” The definition has been expanded with examples and suggestions as to w hat pollution control measures are not generally control devices for the purposes of part 64.

Letter(s): KBN Engineering and Applied Sciences, In c. (VI-D-229); PPG Industries,

Inc. (VI-D-136); Wisconsin Electric Power Company ( VI-D-130)

Comment d: A commenter stated that flue gas recircu lation is not an active control for

NO

x since it prevents NO

x formation, but that it may be an active control for VOCs and CO to the extent that it brings about more complete

combustion.

Response: See response to Comment b of section 1.1. 3 (Part III).

Letter(s): Kennecott Corporation (VI-D-119)

Section 1.2: Capture System DefinitionCAM RTC (Part III)

October 2, 1997 Page 19

1.2.1: Need for Capture System Monitoring

Comment a: One commenter argued that the definition of capture system should be

deleted because the rule should not require monitor ing of capture systems. The commenter stated that the definition i s too broad and further broadens the scope of the rule as illustrated by an example based on a catalytic cracking unit. Since it would be difficul t to define capture system for a regulation that has such wide applicability, the commenter recommended that the Agency focus CAM on monitoring "control devices" and, where appropriate, process variables directly related to emissions, and not on monitoring "capture systems."

Response: The Agency disagrees for many situations for which fugitive emissions

capture is required in order to route emissions to the control device. The monitoring requirements for control devices ext end to capture systems as well because they are essential to assur ing that the overall emission reduction goals associated with the contro l device are achieved.

Letter(s): Texaco Environment Health & Safety (VI-D -199)

1.2.2: Breadth of Capture System Definition

Comment a: A few commenters stated that the definit ion of capture system was too

broad. One commenter pointed out that many capture systems do not transport pollutants to a control device. Other co mmenters argued that the definition of capture system was too inclusive in that it failed to take into account unique capture systems and operational practicality. One commenter recommended allowing the permitting autho rity discretion to recognize unique circumstances such as sewage treat ment plant sedimentation tank covers that need frequent remova l for inspection and maintenance. Utility industry commenters specified that boiler flue gas duct work should be expressly excluded from the def inition of capture equipment. One of these commenters stated that inc luding duct work in the definition may be appropriate for those process es that have a high probability of emitting fugitives, but it is not ap propriate to monitor the effectiveness of boiler flue gas duct work in trans porting pollutants to a

control device.CAM RTC (Part III)

October 2, 1997 Page 20

Response: The final rule includes a definition of a "capture system" because the

rule requires, where applicable, monitoring of a ca pture system associated with a control device. The Agency note s that duct work, ventilation fans and similar equipment are not cons idered to be a capture system if the equipment is used to vent emissions f rom a source to the atmosphere without being processed through a contro l device. For instance, roof vents that remove air pollutants fro m inside a building but do not transport the pollutants to a control device to reduce or destroy emissions would not be subject to the rule. Boiler flue gas duct work would not constitute a "capture system" because the duct work is not used to "capture" the pollutants prior to discharge. Th e boiler is self-contained from the point at which emissions are generated to the point at which emissions are discharged, and as such a boiler does not employ a "capture system" as commonly understood. The Agenc y notes that the definition of "capture system" used in part 64 is c onsistent with other regulations that use this definition. (see, e.g., 4 0 CFR Part 60, subparts Z, AA, AAa, DD, LL and OOO)

Letter(s): Class of '85 Regulatory Response Group ( VI-D-161); County Sanitation

Districts of Los Angeles County (VI-D-232); Niagara Mohawk (VI-D-168) Rubber Manufacturers Association (VI-D-149)

Section 1.3: Continuous Compliance Determination Me thod Definition

1.3.1: Recommends Increasing the Scope of the Conti nuous Compliance

Determination Method Definition

Comment a: Two commenters recommended that EPA dele te the caveat for assumed

control factors because almost any compliance metho d may be interpreted to include some assumptions. The comme nters stated that, for example, an incinerator temperature may be appr oved as a compliance method for some mass limits or percent r eduction requirements, but could be interpreted to include a ssumptions about flow rates or other operating parameters. These comment ers recommended that the permitting authority be given the discreti on to consider any compliance method to be a continuous compliance det ermination method.

Response: The exemption allowed in the rule for the use of a continuous compliance

determination method specifies that the exemption i s not available" (if the applicable compliance method includes an assumed co ntrol deviceCAM RTC (Part III)

October 2, 1997 Page 21

emission reduction factor that could be affected by the actual operation and maintenance of the control device” (emphasis ad ded). The Agency believes this makes clear that other assumptions us ed in determining compliance (e.g., an assumed emission factor, F-fac tor, for a given fuel type) are not included in this definition. The rul e discussion also includes more specific example language to help clarify this point.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); General

Electric Company (VI-D-156)

1.3.2: Requests for Clarification

Comment a: Several commenters stated that EPA shoul d clarify that a continuous

compliance determination method is not limited to c ontinuous monitoring and gave examples of particular methods they would like to see specifically included. These commenters asked that the definition make it clear that the following methods are continuous com pliance determination methods: certifying sulfur content in coal to mee t a percent sulfur in coal standard for a boiler supplier certifications of ma terial content and properties such as fuel sulfur content or VOC conte nt of coatings, and continuous metering of natural gas usage where the unit is subject to a natural gas usage restriction. Two of the commente rs argued that it

would be a waste of resources for sources to have t o propose that the exemption applies for these situations on a case-by -case basis.

Response: The example compliance determination situ ations described by the

commenters can indeed be continuous compliance dete rmination methods; however, the control technology applied in these situations are not subject to part 64 monitoring, but to other par t 70 monitoring (periodic monitoring). As such, there is no need to justify such monitoring for part 64 purposes on a case-by-case basis.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Chemical

Manufacturers Association (VI-D-152); General Elect ric Company (VI-D-156); Los Alamos National Laboratory (VI-D-21 0); PPG Industries, Inc. (VI-D-136)

Comment b: Another commenter proposed the addition of language to the definition of

"continuous compliance determination method" to cla rify that the termCAM RTC (Part III)

October 2, 1997 Page 22

includes all emission limitations or standards prom ulgated under section 111 or 112 of the Act for which the standard provid es a compliance

determination method. The commenter described this change as necessary to reflect the list of example continuous compliance determination methods in the 8/2/96 CAM technical g uidance document,

most of which are NESHAP and NSPS standards.

Response: The Agency does not believe that all 111 or 112 standards that include

compliance determination methods, which is all of t he standards, also provide continuous compliance determinations. The definition applies to a specific category of methods that provide data fo r all averaging times that may be used directly to determine compliance w ith the emission limitation. Most compliance methods provide data o nly from periods of the applicable performance testing, not at all time s.

Letter(s): Eli Lilly Company (VI-D-124)

1.3.3: Proposed Limitations for Continuous Complian ce Determination Method

Definition

Comment a: State commenters recommended limiting th e definition of continuous

compliance determination method. One commenter requ ested that the definition be limited to reference methods and argu ed that this change was necessary to prevent attempted exemptions from CAM requirements based on permit terms such as those which establish that parameter monitoring excursions can be used for compliance de termination. An association of states argued that continuous compli ance determination

method should be defined as a "direct measurement o r a direct correlation between emissions and the parameters monitored" whi ch would include monitoring methods such as CEMS and fuel sampling a nd analysis. The

association stated that a more narrow definition wa s necessary to ensure that the "continuous compliance determination metho d" exemption is available only to those sources required by permit to use more rigorous monitoring methods than the minimum required under CAM.

Response: The Agency agrees with this intent and be lieves that the definition in the

final rule reflects this position.

Letter(s): Georgia Department of Natural Resources (VI-D-193); NESCAUM

(VI-D-192)CAM RTC (Part III)

October 2, 1997 Page 23

Section 1.4: Other Definitions

1.4.1: Favors Defining Cost-effective

Comment a: A few commenters argued that part 64 sho uld include a definition for the

term cost-effective that is consistent with EPA's s tatement in the CAM preamble that the goal of CAM is to provide a cost- effective means of filling gaps in existing regulations where they are not consistent with the statutory requirements of Titles V and VII of the C AAA. This definition

should also reflect the Clinton Administration's st ated goal in "Reinventing Environmental Regulation" of "minimizing costs, pro viding flexibility in implementing programs, and tailoring solutions to t he problem." These commenters also proposed revisions to §§ 64.6, 64. 7, and 64.9 to clarify

that cost-effectiveness is a factor to be considere d in determining what monitoring is required by CAM.

Response: See response to Comment a of section 6.4 (Part III).

Letter(s): American Gas Association (VI-D-154); Coa stal Corporation (VI-D-123);

Colorado Association of Commerce and Industry (VI-D -182)

1.4.2: Breadth of Emission Limitation or Standard D efinition

Comment a: A number of commenters stated that there is no reason why design,

equipment, operational, or operation and maintenanc e requirements should be subject to CAM since they do not involve an ongoing activity that must be monitored to determine that it is oper ating correctly.

Another commenter added that Title V certification is all that is necessary for assuring compliance in these cases. One commen ter also noted that the part 64 definition appears to go beyond the def initions of "emission limitation" and "emission standard" in section 302( k) of the Act which

focus on continuous reduction and therefore do not cover these types of operation requirements. Finally, a commenter empha sized the importance of narrowing the definition of "emission limitation or standard" for subpart C applicability because the number of r ecord keeping, reporting, work practice, design, and similar requi rements at a source is large relative to the small number of real emission limitations.CAM RTC (Part III)

October 2, 1997 Page 24

Some commenters offered specific revisions to the d efinition designed to limit applicability. The commenters noted that the definition suggests that all record keeping and reporting requirements, exce pt those associated with monitoring, are subject to CAM although the pr eamble states otherwise. The commenters argued that there is no n eed to subject self-documenting requirements to CAM monitoring. O ne of the commenters also argued that by failing to specify o therwise, the definition makes monitoring requirements subject to CAM althou gh the preamble

states otherwise.

In particular, one commenter stated that leak detec tion and repair (LDAR) programs should be excluded from the definition of "emission limitation or standard" because they are self-contained and self- enforcing. The commenter pointed out that there are thousands of L DAR applicable requirements which would cause a tremendous burden if considered on a case-by-case basis and argued that this illustrates the need for a programmatic approach to CAM.

Another commenter argued that applicability and exe mption provisions (such as a requirement that a particular NSPS appli es to tanks storing liquids above a particular vapor pressure threshold ) and minor NSR, registration and similar requirements should be spe cifically excluded from the definition. (See also summaries under section 2 .3.4 (Part III).)

One commenter recommended that the definition inclu de an appropriate acknowledgment that an emission limitation or stand ard includes not only the numerical emission limit, but also a correspond ing averaging period and test method for determining compliance.

Response: The Agency has slightly modified the defi nition of emission limitation or

standard to address some of these comments. The fi nal rule states explicitly that requirements "to keep records, subm it reports, or conduct monitoring” do no constitute emission limitations o r standards for purposes of part 64. For the remaining comments, h owever, EPA disagrees. If a pollutant-specific emissions unit relies on a control device to achieve compliance, the form of the emission lim itation or standard is generally immaterial to the need to assure that the control device continues to function properly, reduce emissions an d achieve compliance. The Agency notes that most pollutant-specific emis sions units with control devices are not subject to the type of stan dards which the commenters suggested should be deleted (such as LDA R requirements).CAM RTC (Part III)

October 2, 1997 Page 25

There are, however, some types of design requiremen ts that require

installation of a control device, and in those case s, EPA believes that monitoring the control device is appropriate (see, e.g., 40 CFR 60.112(b)(a)(3) and (b)(2), design standards for va por recovery and control systems, and corresponding monitoring requi rements at 60.113b(c)(1) and (2)).

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Chemical

Manufacturers Association (VI-D-152); Electronic In dustries Association (VI-D-137); Exxon Chemical Americas (VI-D-128); Gen eral Electric Company (VI-D-156); KBN Engineering and Applied Sci ences, Inc. (VI-D-229); Ohio Chamber of Commerce, et al (VI-D-1 60); The Fertilizer Institute (VI-D-145); The Society of the Plastics I ndustry, Inc. (VI-D-148)

1.4.3 Comments on Definition of Deviation, Excursio n and Exceedance

Comment a: Several commenters argued that a definit ion of "deviation" should be

added to part 64 that reflects EPA's statements in the preamble that deviations are not necessarily violations.

Two of the commenters stated that interpretation of "deviation" for purposes of CAM and the federally-enforceable porti ons of the Title V permit should not be left to the State's discretion . Another commenter suggested that a definition of "deviation" similar to the definition in section 71.6(a)(3)(iii)(C) should be added to § 64.1 to cl early establish that a deviation is not necessarily a violation under CAM. (See additional comments in section 12.3 Part (III).)

One commenter requested that EPA clarify that excur sions, exceedances or deviations are not violations of the permit. Th e commenter explained that it appears that the rule is set up to encourag e sources to establish indicator values below the regulatory limit so that corrective action can occur prior to any permit violation. However, the c ommenter pointed out

that the definitions of excursion and exceedance re fer to levels "in excess of" standards and to failures to stay within an ind icator range which

creates confusion on this issue.

Response: The Agency has deleted the definition of deviation from the final rule and

references to excursions or exceedances as deviatio ns. The final rule

does not refer to "deviations" and thus does not in clude a definition ofCAM RTC (Part III)

October 2, 1997 Page 26

"deviation." The 1996 part 64 Draft did contain a revised definition of "deviation" to be included in the part 71 provision s covering the federal operating permits program. This definition would h ave clarified that a deviation is not always a violation and that types of events that were to be

considered deviations included "exceedances" and "e xcursions" as defined under part 64. The state operating permit programs authorized by part 70 of this chapter allow permitting author ities to define the term "deviation" in the context of their individual prog rams. The 1996 part 64

Draft did not include a definition of "deviation" t o be included in part 70 because the Agency did not want to restrict the per mitting authorities’ ability to define this term.

Several commenters pointed out that there are permi tting authorities

which define a "deviation" as a violation of the un derlying emission limitation or standard. The provisions in the 1996 part 64 Draft which

stated that exceedances and excursions are to be co nsidered deviations without necessarily being violations arguably confl ict with those definitions of "deviation." In response to these c oncerns, the Agency has eliminated all references to "deviations" from part 64. The Agency has also made clear in the preamble to the rule and in the reporting status of excursions from CAM indicator ranges that excursion s are not necessarily indications of excess emissions or violations of ap plicable emission limits but are reported as possible exceptions to complian ce. Letter(s): American Furniture Manufacturers Associa tion (VI-D-203); American Gas

Association (VI-D-154); Cinergy Corp. (VI-D-141); U tility Air Regulatory Group (VI-D-140)

Comment b: Many commenters also argued for changes to the proposed definitions of

"exceedance" and "excursion." Several commenters st ated that to be consistent with the definition of "continuous compl iance determination" and to assure that exceedances/excursions are repor ted only when appropriate, these definitions should expressly ref er to the appropriate averaging period established for a given emission l imitation or standard. These commenters proposed additional definition lan guage to address

this concern.

One commenter requested that exceedance only refer to instances in which a numerical emissions limit is actually excee ded, as indicated by a monitoring method providing numerical emissions dat a. The commenter argued that other information which suggests that a numerical emissionCAM RTC (Part III)

October 2, 1997 Page 27

limit has been exceeded (such as failure to follow a work practice standard) would be better included in the definitio n of "excursion." A corresponding change in the definition of "emission limitation or standard" was also recommended. Two commenters objected to l anguage in the discussion accompanying the 1996 part 64 Draft whic h equated the term "exceedance" with the concept of "excess emissions" used in the NSPS.

The commenters described the term "excess emissions " as a misnomer

which should not be used out of context.

Response: These two terms are closely related. Sec tion 64.1 defines an

"exceedance" as a condition detected by monitoring which provides data

in terms of an emission limitation or standard and which indicates that emissions or opacity are greater than that limitati on or standard, consistent with the applicable averaging period. A n "excursion" is defined as a departure from an indicator range esta blished as part of part 64 monitoring, also as consistent with the applicab le averaging period as determined for purposes of part 64. The Agency con tinues to believe that the term "exceedance" is comparable to the ter m "excess emissions" commonly used in the NSPS to define what types of C EMS or COMS data need be reported.

Letter(s): Baltimore Gas & Electric Company (VI-D-1 77); Chemical Manufacturers

Association (VI-D-152); Chemical Manufacturers Asso ciation (VI-D-258); Cinergy Corp. (VI-D-141); Houston Lighting & Power Company (VI-D-228); KBN Engineering and Applied Sciences, I nc. (VI-D-229); Occidental Chemical Corporation (VI-D-261); Southwe stern Public Service Company (VI-D-224); Utility Air Regulatory Group (V I-D-140); Virginia Power (VI-D-226); Wisconsin Electric Power Company (VI-D-130)

Comment c: A commenter also suggested that EPA clar ify the definitions to reflect

statements at the September 10, 1996 meeting indica ting that EPA did not intend periods of startup and shutdown to be co unted as exceedances or excursions, but would simply exclude these perio ds from the calculation

of CAM "downtime." The commenter noted that this wo uld mirror EPA policy in all of NSPS, and recognize the reality of operating any industrial

source of emissions.

Response: The Agency has noted in the past that cer tain exceedances or excursions

may be excused because of startup or shutdown condi tions, which is consistent with the NSPS. However, it is incorrect that periods of startup,CAM RTC (Part III)

October 2, 1997 Page 28

shutdown or malfunction excuse the owner or operato r from recording data and reporting the data as exceedances or excur sions. See further discussion related to this topic in the Final Rule Preamble, section II.G.1.

Letter(s): Houston Lighting & Power Company (VI-D-2 28)

Comment d: Commenters particularly objected to "exc ursions" being defined as

"deviations." Several commenters stated that there is no basis for defining excursions as deviations since there is no independ ent obligation to stay within the range unless the indicator range is itse lf an enforceable permit limit, and if the required further action is taken, there is no basis for suggesting that the permit may not have been compli ed with. The commenters suggested requiring reporting of excursi ons (which would eliminate the negative connotations associated with deviations) noting that the current definition of excursions defeats the pu rpose of CAM by discouraging sources from establishing conservative indicator ranges that might detect problems sooner. One of the commenter s also added that the approach taken in the 1996 CAM Draft is inconsi stent with the known and accepted imprecision between the monitored indi cators and actual

emissions.

Specific changes recommended for the definition inc luded deleting the sentence stating that an excursion shall be conside red a deviation in annual compliance certifications, and including a reference to the sections under which an excursion may be establishe d as an independent permit condition and language stating that only und er those

circumstances would an excursion be a deviation. A nother commenter proposed the development of a non-exclusive list of excursions which should not be considered deviations including excee dances due to start-up or shutdown periods that are excused by th e rule.

One commenter stated that excursions should not tri gger EPA action. This commenter believed that notice should be required i f failure to respond to an excursion triggers an exceedance.

Response: See the response to Comment a in this sec tion. Further, the Agency

believes that the preamble to the rule adequately e mphasizes that a failure to stay within the indicator range does not automatically indicate a failure to satisfy applicable requirements. The fa ilure to stay within an indicator range does indicate the need for the owne r or operator to followCAM RTC (Part III)

October 2, 1997 Page 29

up and determine whether corrective action is neces sary to return operations within design parameters, and to act upo n that determination as appropriate.

Letter(s): Air Control Techniques, P.C. (VI-D-202); American Gas Association

(VI-D-154); Baltimore Gas & Electric Company (VI-D- 177); Cinergy Corp. (VI-D-141); Eli Lilly Company (VI-D-124); KBN Engin eering and Applied Sciences, Inc. (VI-D-229); Southern Company Service s (VI-D-171); Utility Air Regulatory Group (VI-D-140); Wisconsin Electric Power Company (VI-D-130)

Comment e: One commenter recommended that the defin ition of excursion explicitly

acknowledge that an excursion does not by itself co nstitute noncompliance with an applicable emission limitatio n or standard. The

commenter argued that such an addition is consisten t with EPA's statements about the meaning of an excursion in the draft CAM preamble.

Response: The Agency believes that the definition o f excursion and the rule

discussion of the appropriate response to excursion s adequately establish the status of excursions related to compliance obli gations. In addition, as noted in Section I.E. of the Final Rule Preamble, t he Agency intends to

draw no firm inferences as to whether excursions fr om CAM parameter levels warrant enforcement of underlying emission l imits without further investigation into the particular circumstances at the source.

Letter(s): The Fertilizer Institute (VI-D-145)

Comment f: A state commenter expressed concern that the proposed definitions of

"excursion" and "exceedance" could conflict with st ate definitions and that future changes in state definitions of those terms might be required which would have a negative effect on successful monitori ng and enforcement programs already in effect.

Response: See response to Comment a of this section

.

Letter(s): Ohio EPA, Division of Air Pollution Cont rol (VI-D-180)CAM RTC (Part III)

October 2, 1997 Page 30

1.4.4: Comments on Monitoring Definition

Comment a: Several commenters felt that the definit ion of "monitoring" should be more

flexible. These commenters argued that the current definition of monitoring, combined with the Subpart C requirement that all units do some kind of monitoring unless they can make a spec ial showing under § 64.9(c)(2) that no monitoring is required to provid e a reasonable assurance of compliance, essentially recreates the inflexible requirements for periodic monitoring that currently apply under Part 70. The commenters stated that this provision does not appe ar to provide permitting authorities discretion not to require ad ditional monitoring (stack testing) based on criteria like the size of the sou rce or frequency of operation. Based on the commenters' understanding that one of the purposes of integrating CAM and periodic monitoring was to allow permitting authorities the discretion not to impose periodic stack testing on small sources that do not currently perform ongoing monitoring and that do not use active control devices, they argued that EPA should either adopt a more flexible definition of monitoring or r evise Subpart C to

include consideration of criteria such as source si ze, actual emissions, and cost of available monitoring. However, one com menter offered support for the definition of "monitoring" as being appropriately flexible.

Another commenter stated that the words "on a routi ne basis" should be deleted from the definition because this phrase dis allows non-routine or one-time data collection from being considered "mon itoring."

Other commenters pointed out that the definition of "monitoring" in the 1996 CAM Draft was an improvement over the previous ly proposed

definition. One commenter based this evaluation on the fact that the definition clarifies that required conduct of perfo rmance tests is not considered monitoring. Another commenter suggested that changing the words "provided that" to "except that" would improv e the clarity of this provision.

Response: The Agency believes that the removal of s ubpart C from the final rule

alleviates the concerns raised in these comments. Monitoring for units other than those addressed in part 64 will be addre ssed through implementation of periodic monitoring as defined fo r part 70.

Letter(s): Chemical Manufacturers Association (VI-D -152); Cinergy Corp.

(VI-D-141); Colorado Association of Commerce and In dustry (VI-D-182);CAM RTC (Part III)

October 2, 1997 Page 31

Houston Lighting & Power Company (VI-D-228); KBN En gineering and Applied Sciences, Inc. (VI-D-229); Pennsylvania Cha mber of Business and Industry (VI-D-114); Utility Air Regulatory Gro up (VI-D-140); Wisconsin Electric Power Company (VI-D-130)

1.4.5: Comments on Other Definitions

Comment a: A commenter requested that EPA clarify t he meaning of "pollutant-specific

emissions unit" (PSEU). The commenter suggested th at EPA may mean that a specific type of unit has a requirement for a specific pollutant. For instance, the commenter asked that EPA clarify whet her a chromium hard-anodizing unit is a PSEU for chromium. Response: As noted above, the Agency has added clar ification to the rule about

defining PSEU. In answer to the specific question, the chrome anodizing tank would be the pollutant-specific emission unit for total chromium and would be subject to the part 63, subpart N, post-19 90 rulemaking. Because the PSEU is subject to subpart N, of part 63, that PSEU is not subject to part 64 monitoring requirements, unless it is also subject to other, non-exempt emission limitations or standards that apply to

chromium.

Letter(s): Department of Energy (VI-D-196)

Comment b: One commenter proposed a definition of " potential to emit" that includes

any physical or operational limitation on the capac ity of the source to emit a pollutant including control devices and operating restrictions.

Response: The definition of potential to emit for p art 64 purposes will be the same as

that defined for part 70 purposes including the app licability of any operational restrictions or limitations.

Letter(s): Texaco Environment Health & Safety (VI-D -199)

Comment c: A commenter proposed revisions to the de finition of "predictive emission

monitoring system (PEMS)" to be considered along wi th the definition of "pollution prevention" proposed by the commenter (s ee related comments in section 1.1 (Part III)-Control Device Definition ). The proposed definition of PEMS would refer to "data reduction system to me asure theCAM RTC (Part III)

October 2, 1997 Page 32

performance of pollution prevention or control devi ces in terms of the applicable emission limitation or standard."

Response: The Agency uses the term predictive emiss ions monitoring system or

PEMS specifically to refer to the use of parametric data to predict emissions in units of the applicable standard. The purpose of this distinction is to recognize the use of such monitor ing as continuous compliance determination methods. The fact that su ch monitoring can also provide the operator with valuable process ope ration information is certainly important but is outside the scope of the definition for part 64

purposes.

Letter(s): American Gas Association (VI-D-154)

Comment d: One commenter stated that EPA should def ine the term "range" as used

in part 64 or substitute other terms where "range" is used. The commenter explained that the term "range" as used in § 64.6( a)(3)(i) through (iv) and elsewhere in the rule describes both single points and single parameters. This commenter suggested the use of the phrase "ind icator performance status" in some cases and the use of the term "scop e" instead of "range" in § 64.9(a)(3) to avoid confusion with the use of the term "range" under subpart B of the 1996 part 64 Draft.

Response: The Agency agrees that the term “range” a lone is insufficient and has

added the term “designated condition” to recognize single point alternatives to operating ranges.

Letter(s): Enron Operations Corp. (VI-D-235)

Comment f: A commenter recommended that EPA clarify the use of the term "major

source" for applicability purposes. The commenter s tated that it should be clear that major source status is to be determined consistent with the definition as applicable to the location of the sou rce, taking into account

attainment status.

Response: The Agency has revised part 64 in a numbe r of ways to make a separate

definition of the term “major source” unnecessary. Part 64 simply states that "major source" shall have the same meaning as provided in part 70.CAM RTC (Part III)

October 2, 1997 Page 33

The Part 70 definition does take into account the l ocation of the source in

terms of attainment status.

Letter(s): Tennessee Valley Authority (VI-D-162)

Comment g: One commenter requested clarification of the term " emissions unit." As an

example, the commenter expressed confusion over wh ether a distillation

unit with two vents constitutes one emissions unit or two.

Response: The term “pollutant-specific emissions un it” applies to the process for

which the emission limitation applies. In the exam ple provided by the

commenter, the distillation unit with an emission l imitation for pollutant X would be one PSEU. The fact that there are multipl e vents to the atmosphere is relevant only if each vent represents a separate control

device.

Letter(s): Dow Chemical Company (VI-D-120)CAM RTC (Part III)

October 2, 1997 Page 34

Section 2: Applicability

Section 2.1: Applicability of 1996 CAM Draft Subpa rt B

2.1.1: General Comments/Scope of Applicability

Comment a: A few commenters offered general support for the applicability provisions.

One state agency and an association of state and lo cal authorities stated that the universe of sources subject to CAM is reas onable and represents the size and type of emissions units that should re gularly conduct monitoring. Other commenters specifically supporte d the distinction

between control device units and other units. Anot her commenter favored the more streamlined two subparts of the 19 96 part 64 Draft over the three tiered scheme in the 1995 part 64 Draft.

Response: No additional response necessary.

Letter(s): American Electric Power (VI-D-129); Colo rado Association of Commerce

and Industry (VI-D-182); Department of Energy (VI-D -196); Missouri Division of Natural Resources (VI-D-260); STAPPA/AL APCO (VI-D-179)

Comment b: On the other hand, many commenters argue d that under the 1996 part 64

Draft, subpart B would apply to too many pollutant- specific emission units. A chemical industry commenter stated that the 1996 part 64 Draft would subject virtually every emission source in its indu stry to subpart B. The commenter added that this problem is compounded by EPA's proposed guidance on defining "control device" and by the CA M provision allowing subpart B standards to be applied to subpart C unit s. A pharmaceutical industry commenter stated that at just one plant it has 1,000 pollutant-specific emissions units for which it wou ld have to implement CAM, and that the costs and resources necessary to develop and implement a large number of CAM plans, including th e emissions testing to justify the monitoring approaches, would far out weigh any environmental benefit of monitoring emissions from these units.

The pharmaceutical commenter also claimed that the monitoring requirements of the 1996 part 64 Draft apply to all units at a major source which are subject to an emission limitation or stan dard whereas the EM proposal would have applied only to those units at a major source with emissions of a regulated pollutant for which the so urce is major at a levelCAM RTC (Part III)

October 2, 1997 Page 35

equal to or greater than 30 percent of the major so urce threshold for that pollutant. The commenter asserted that applicabili ty of the 1996 part 64 Draft was therefore broader than applicability unde r the EM proposal.

A few commenters discussed the number of units subj ect to CAM specifically. Based on EPA estimates that there ar e 25,000 title V sources, 9,000 of which are "major" sources, some c ommenters

estimated that several hundred thousand units would be covered by CAM.

Of these several hundred thousand units, the comme nter stated that many will be subject to subpart B and estimated 250 thousand units each for subpart B and subpart C. This commenter also a sserted that EPA

should have released an RIA which would have enable d commenters to

assess how EPA came to its conclusions about covera ge and comment on the adequacy of EPA's analysis. Two commenters claimed that even considering subpart B units which will require CAM plans alone it appears that CAM will cover more units than under the propo sed EM approach.

One commenter concluded that EPA should amend the r ule to greatly reduce the number of units covered by both subpart B and C of CAM. Another commenter argued that the need to limit sub part B applicability is especially a concern because of the burdens involve d with preparing and negotiating CAM plans as opposed to the less rigoro us requirements of subpart C. The commenter stated that this concern is further compounded because of the compliance testing presum ption for establishing indicator ranges under subpart B. A c ommenter asserted that by including fewer categories of applicability in the 1996 part 64 Draft, EPA has made more emissions units subject to the mo st stringent CAM requirements than was the case in the 1995 draft ru le.

Response: The Agency disagrees with the commenters' characterization of the

number of units subject to part 64 as greater than the number of units that would have been subject to the 1993 proposed enhanc ed monitoring rule. The final part 64 retains the basic concept of an applicability threshold as contained in the 1993 EM proposal, but also narrows the focus so that part 64 applies only to those pollutant-specific em issions units that use a control device to achieve compliance with an applic able emission limitation or standard. In addition, units using c ontrol devices must have potential pre-control device emissions equal to or greater than 100 percent of the applicable major source definition t o be subject to part 64. Since part 64 applies its size threshold only to th e proportionally small

number of emissions units that use control devices, the number of unitsCAM RTC (Part III)

October 2, 1997 Page 36

required to meet part 64 monitoring requirements is lower than would have been subject to the 1993 EM proposal. The RIA estimates that part 64 will affect less than 27,000 units as compared t o the over 35,000 units affected under the 1993 EM proposal. The Agency be lieves that these are the emissions units on which monitoring require ments should be focused. The Agency also notes that, in response t o concerns related to

the definition of control device and concerns that the definition would result in over broad applicability, EPA has revised that definition to clarify the intent of that definition. (See section 1.1 (Pa rt III), above for further detail.)

Letter(s): Chemical Manufacturers Association (VI-D -152); CITGO Petroleum

Corporation (VI-D-172); Class of '85 Regulatory Res ponse Group (VI-D-161); Coalition for Clean Air Implementation (VI-D-164); Eastman Chemical Company (VI-D-173); Eli Lilly Company (VI- D-124); Marathon Oil Company (VI-D-185); Pennzoil Company (VI-D-133)

Comment c: One commenter proposed eliminating a gre y area of units that might

otherwise be subject to subpart B by adding a defin ition for "control methods" to § 64.1 which would incorporate the guid ance document list of technologies not to be considered control devices, and by revising § 64.2 to state that subpart B requirements do not apply t o units using such

control methods.

Response: The Agency believes that the revised cont rol device definition satisfactorily

addresses the control device definition clarity. S ee responses to comments in section 1.1.1 (Part III) for more infor mation.

Letter(s): NorAm Gas Transmission Company (VI-D-142 )

Comment d: A commenter recommended that subpart B a pplicability be limited to only

those units with active control devices that have p re-control device emissions greater than the major source threshold a nd actual post-control emissions greater than 40 percent of the major sour ce threshold. This commenter suggested applying subpart C to units wit h active control devices that have precontrol device "actual" emissi ons greater than 40 percent of the major source threshold and exempting those with pre-control "actual" emissions are less than that a mount. TheCAM RTC (Part III)

October 2, 1997 Page 37

commenter also provided detailed examples from one of its facilities to demonstrate the reasonableness of this approach.

Another recommended approach involved applying the rule to units with actual post-control emissions greater than 50 perce nt of the major source threshold. A commenter claimed that such an approa ch would be consistent with the current PTE guidance for title V applicability. A commenter who preferred that approach also mentione d that 85 percent post-control PTE could be used as a threshold if th e Agency would rather not use actual emissions. This suggestion was desc ribed as being consistent with the revised part 70 modification pr ocedures for determining what constitutes an environmentally sig nificant change. Some commenters noted that other reasonable approac hes could be considered, such as those outlined in the SBA comme nt letter.

Response: The Agency disagrees with the concept of using actual emissions as the

overall basis for part 64 applicability. First, ac tual emissions can vary with changes in production. More importantly, for units with control

devices, calculations of actual emissions necessari ly rely on assumptions about on-going performance that part 64 is intended to verify. The Agency has incorporated a number of streamlining fe atures to the final rule to help relieve the documentation burden. The Agency has also delayed the implementation of part 64 monitoring fo r smaller emissions units until permit renewal. With these measures, t he Agency believes that imposing monitoring requirements for emissions units with control devices above the applicability threshold as define d in the rule is

reasonable.

Letter(s): Cooperative Power Association (VI-D-208) ; Eastman Chemical Company

(VI-D-173); Exxon Chemical Americas (VI-D-128); Mob il Corporation (VI-D-115); Total Petroleum, Inc. (VI-D-190)

Comment e: Two commenters argued that EPA has used CAM to conduct "gap filling"

in ways that are unnecessary or inappropriate. The se commenters stated that CAM should fill gaps where monitoring h as been omitted in prior rulemakings, but should not be used to correc t errors where existing monitoring is not regarded as inadequate. Accordin g to the commenters, promulgating the 1996 part 64 Draft would improperl y rectify errors and problems with existing rules such as pre-1990 NSPSs , NESHAPs and existing NSR and PSD permits. These commenters rec ommended thatCAM RTC (Part III)

October 2, 1997 Page 38

EPA should use CAM to "gap fill" rules or permits w ithout any monitoring or recordkeeping requirements instead of attempting to "fix" current monitoring and recordkeeping requirements. The com menters argued that their approach would fulfill the mandates of S ection 114 of the Act without unnecessarily burdening sources and states with a complicated monitoring rulemaking.

Response: Title VII of the 1990 Amendments added a new section 114(a)(3) that

requires EPA to promulgate rules on enhanced monito ring and compliance certifications. This paragraph provides that the Administrator shall require enhanced monitoring and submission of compliance certifications. Compliance certifications shall in clude (A) identification of the applicable requirement that is the basis of the certification, (B) the method used for determining the compliance status o f the source, (C) the compliance status, (D) whether compliance is contin uous or intermittent, (E) such other facts as the Administrator may requi re. The Agency agrees that existing monitoring, in some cases, wil l suffice to meet the requirements that define enhanced monitoring. The final rule recognizes this and exempts some source owners from additional requirements if continuous compliance determination methods are app lied. The final rule also includes reduced documentation requirements fo r monitoring approaches that provide a direct measure of emissio ns. On the other hand, the Agency believes that not all existing mon itoring, even in federally developed regulations (e.g., NSPS), provi des information sufficient to allow the owner to certify compliance status of emission units' control devices without the enhancements that part 64 provides. It is the Agency’s intention that existing monitoring satisfy the same requirements as new monitoring under part 64.

Letter(s): Pharmaceutical Research and Manufacturer s of America (VI-D-217);

Phillips Petroleum Company (VI-D-131)

2.1.2: Use of Potential Pre-control Device Emission s Threshold

Comment a: An environmental organization supported the pre-control emissions

threshold since such a provision reflects the fact that emissions will be at pre-control levels if the control device fails. Ho wever, the organization did not believe that units with pre-control emissio ns below the major source threshold should be excluded from coverage o f part 64 either.CAM RTC (Part III)

October 2, 1997 Page 39

Response: No additional response necessary regardin g the importance of

considering precontrol emissions. As to the reason ableness of the emissions threshold for units, EPA believes Congres s left the Agency with considerable discretion in designing how to impleme nt enhanced monitoring requirements at major sources. Part 64 is designed to focus on those emission units which have the potential ab sent controls to emit significant amounts of pollution. The Agency belie ves the emissions

threshold it has chosen for emissions units is reas onable because using that threshold over 97 percent of emissions from un its with controls will fall under part 64.

Letter(s): Natural Resources Defense Council (VI-D- 151)

Comment b: Many industry commenters expressed oppos ition to the applicability

threshold. Objections to using potential pre-contr ol device emissions rather than potential to emit were based on factors such as the resulting increase in emissions units subject to subpart B mo nitoring requirements without a significant increase in the total amount of emissions monitored. As an example, one commenter stated that this appro ach will cover extremely small sources of PM-10. The commenter al so requested clarification of how the rule would apply to regula tions that may be developed to address pending PM-2.5 issues. Anothe r example given by two commenters was that a unit with a pre-control d evice potential to emit

of 100 tons and an active control device that is 99 .9 percent efficient would be subject to subpart B despite having actual emissions of less

than one ton. The commenters noted that this resul t is contrary to EPA's goal of developing "cleaner, cheaper, and smarter r egulations." A chemical industry commenter stated that all sources in this industry could be subject to subpart B under the "pre-control devi ce emissions" threshold. According to the commenter this could o ccur because every emission source in its industry passes product or e missions through a unit operation covered under the broad definition of "co ntrol device" and because large emissions could occur under some cont ingency (e.g. cooling water failure), although in most cases ther e is little chance of such an occurrence during normal (non-malfunction) opera tions. Other commenters argued that the "pre-control devic e emissions"

threshold would result in well-controlled emissions units with low actual emissions being subject to subpart B of the 1996 pa rt 64 Draft which is in contrast to both the title V regional source defini tion which allows control effectiveness to be included, and both past and cur rent definitions ofCAM RTC (Part III)

October 2, 1997 Page 40

"potential to emit." Several of the commenters not ed that in response to

recent court decisions, EPA has stated that it is c onsidering rulemaking which would allow "effective" state and locally enf orceable limitations (including control device requirements and limits o n hours of operation and production capacity) to be considered in additi on to federally enforceable limitations on "potential to emit." Th e commenters noted that under both EPA guidance and these recent court deci sions, sources have calculated potential emissions after those control devices that are subject to enforceable limitations and by taking into accou nt limits on hours of operation and production capacity. They argued tha t basing CAM applicability on an interpretation of "potential to emit" that is consistent with other programs under the Act is sensible and m ay be required legally. These commenters recommended revising § 64.2(a)(ii i) to be based on "potential to emit" instead of "pre-control device emissions." A commenter recommended that "potential pre-control d evice emissions" should have the same meaning as "potential to emit" as defined in § 64.1.

A few commenters cited Alabama Power Co. v. Costle as holding that Congress would have had to exclusively intend that uncontrolled emissions be used in order to justify a change from EPA and the regulated community's long-standing practice of cal culating controlled potential to emit. The commenters highlighted a st atement made in this case that high school heating plants might become " major sources" under the uncontrolled emissions test as support for the argument that applicability based on uncontrolled potential to em it would be too

inclusive.

Two commenters argued that because the CAM rule and plans are designed to identify short-term changes in control efficiency, it is inconsistent to justify applicability decisions bas ed on hypothetical long-term (annual) differences between units. The commenters also

stated that no control device could be assumed to f ail for an entire year, but this would be the only way that there would be a substantial real world

difference between controlled and uncontrolled emis sions.

One commenter noted that the rule allows units to s ubtract emissions reductions achieved through enforceable operational constraints, such as permit limits regarding hours of operation, feed ra tes, type of fuel burned, etc. when calculating potential pre-control device emissions. The

commenter asserted that it is inconsistent to allow units with this type of restriction to avoid subpart B applicability while subjecting units with control devices to subpart B and that any unit that limits potentialCAM RTC (Part III)

October 2, 1997 Page 41

emissions and takes a permit limit to that effect s hould be allowed to consider that limit in determining CAM applicabilit y.

One commenter indicated an understanding of EPA's c oncern that use of potential emissions may focus better on the potenti al air quality impact of

diminishment or loss of control, but asserted that the affected pollutant-specific emissions units tend to be large r and better-controlled units and that these units are less likely to exper ience loss of control.

Another commenter added that certification of contr ol devices provides assurance that they are effective and only those fo und to be ineffective should be subject to CAM.

Several commenters argued that EPA should not write a rule to address the worst-case scenario of complete control device failure or intentional

disablement. The commenters stated that such outli ers can be addressed specifically by permitting authorities an d that the rule should be

written to address the normal sources. Based on th at, the commenters believed that use of pre-control device emissions i s unreasonable. Two commenters stated that periodic monitoring is suffi cient to prevent such egregious behavior.

A commenter stated that the monitoring under subpar t C would be adequate to reveal cases where owners or operators fail to operate their control equipment leading to large emission problem s. The commenter stated that this type of problem seems to be the Ag ency's main concern and subpart C should therefore be the primary focus of the rule. According to this commenter, the result of the 1996 part 64 Draft is to burden all sources with detailed monitoring to catc h the few that follow the

"control device disablement scenario."

One commenter noted that other regulations, such as CERCLA/SARA require immediate reporting when certain quantities of hazardous air pollutants are released. The commenter stated that agencies can respond appropriately since total failure of a cont rol device would be likely to trigger such requirements. This commenter also pointed out that if EPA based subpart B applicability on potential to e mit rather than the proposed definition of pre-control device emissions , units or emissions points not subject to subpart B will still be subje ct to subpart C requirements and other established monitoring requi rements. A few commenters suggested that the risk of catastrophic failures of control devices could be addressed by simpler approaches, w ith two of theCAM RTC (Part III)

October 2, 1997 Page 42

commenters recommending allowing sources to documen t proper O & M

of control devices.

A commenter, who noted its recognition of the conce rn with high efficiency control devices that decreased efficiency could res ult in emissions above the major source threshold, argued that the authori ty of permitting authorities to add units to subpart B under § 64.4( a)(2) would provide ample authority to focus resources on those units t hat are prone to this type of problem. The commenter stated that by basi ng applicability based on pre-control device emissions at all units, the rule includes too many minor units for which EPA's stated concern is not likely to exist and asserted that the rule should only apply to units a bove the major source threshold based on the normal definition of potenti al to emit.

A commenter argued that applying part 64 to sources on this basis will duplicate most NSPS programs which already have ade quate monitoring and related provisions to assure use of the control equipment. The commenter recommended basing more stringent monitor ing on standard PTE to focus part 64 on units that may not have sig nificant monitoring under existing programs.

A state permitting authority described the proposed applicability threshold as arbitrary and argued that EPA should allow state s to use a specifically targeted approach which better assures the protecti on of public health and welfare. The commenter recommended that subpart B applicability be

based on factors other than emissions estimates suc h as: the type of pollutant, location of the source, number of source s, quantity of emissions, toxicity of emissions, variability of th e process, margin of compliance, and the reliability of the control devi ce. In connection with this comment, the commenter reiterated its request to adopt a state programmatic approach to CAM.

Other suggested approaches included the use of actu al pre-control emissions greater than 50 percent of the major sour ce threshold to determine applicability. A commenter argued that t his would allow

sources to take into account realistic consideratio ns about hours of operation and throughput levels, and would restrict applicability to significant emissions units. Another commenter rec ommended using actual emissions and the major source threshold to determine applicability. The commenter stated that if potent ial to emit is to be used,CAM RTC (Part III)

October 2, 1997 Page 43

then the standard definition should be used, not th e SBA concept of assuming that controls operate at 50 percent of des ign efficiency.

Several commenters joined in a proposal that would give partial credit for emission control measure effectiveness when applica bility determinations are made. The commenters recommended that if poten tial pre-control

device emissions are to be used, EPA should establi sh a 50 percent control efficiency assumption based on normal opera ting efficiency and included a similar proposal stating that subpart B should address units which would become major sources if the device oper ated at one half its lowest normal operating efficiency with a default v alue of 40 percent if the preceding figure cannot be reasonably established. The commenters argued that this would cover only sources that may reasonably become "true" major sources. Other commenters expressed g eneral support for such a proposal as directing more resources toward those facilities with the greatest emissions rather than focusing on rela tively safe, smaller sources. Basing applicability on a hybrid of poten tial pre-control emissions and actual emissions was suggested as ano ther alternative.

One commenter urged EPA to allow units the option o f determining subpart B applicability based on actual emissions. The commenter offered support for an option presented in the 1995 draft that allowed units whose actual emissions over a rolling 12 month peri od were less than 50 percent of the major source threshold to avoid CAM applicability and

noted that a similar test was allowed in the Januar y 25, 1995 Potential to Emit Transition Policy which was extended in an Aug ust 27, 1996 memorandum from John Seitz. The commenter argued t hat such an option would reduce the unnecessary burden associat ed with applying part 64 units that would not ever realistically mee t the applicable major

source threshold.

Response: Determining whether an emissions unit act ually emits at the major source

threshold, or fraction thereof, is not a purpose of part 64, since part 64 only applies to certain units at sources that have already been determined to be “major.” Rather, determining the compliance status with applicable emission limitations or standards is the primary go al of monitoring as defined by part 64. The applicability threshold in part 64 is intended only as a tool for identifying significant pollutant-spe cific emissions units that have control devices necessary to meet these applic able emission limitations or standards. The potential for a cont rol device to fail for an entire year, as the commenters mentioned, is not re levant as the AgencyCAM RTC (Part III)

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expects control devices to be operated and maintain ed so as to provide ongoing compliance with emission limitations or sta ndards. Part 64 is applicable for units with current applicable emissi on limitations or standards developed prior to the CAAA of 1990.

For these reasons, the CAM approach is necessarily concerned with significant, controlled units with applicable emiss ion limitations or standards even if the potential to emit of such uni ts, considering the

effectiveness of the control device, is low. Monit oring that satisfies part 64 will be designed to detect under-performance of control devices that periodic evaluations such as stack tests may be una ble to document. For example, a unit may have the potential to emit of 2 0 tons per year, considering the effectiveness of a control device w hich is required to operate with a 99 percent control efficiency. If t he effectiveness of the control device were not considered, the maximum cap acity to emit for that unit would be 2,000 tons per year. If the long-ter m actual control performance of that control device decreases to 95 percent, the actual emissions would increase by a factor of five, resul ting in emissions of 100 tons per year. Even over the short term, such a de crease in control efficiency could violate emission limits and cause air quality standards to be exceeded. Thus, the concern that this type of c ontrol device degradation could lead to a noncompliance situation is critical. Part 64 is aimed first at addressing both short-term and long- term, significant loss of control efficiency that can occur without complete failure of a control device. The second type of problem is short-term c omplete loss of

control. As indicated in some of the comments, for many types of control devices this type of problem could be detected with monitoring less detailed than part 64. However, the goal of air po llution control is to prevent these types of problems before they occur, if possible, at a reasonable cost. The EPA believes that part 64 in many instances can be designed to provide early indications of control equipment problems that could be addressed prior to such catastrophic failures. For these reasons, EPA believes that the use of pre-control d evice potential to emit is a rational basis on which to evaluate whether sp ecific units should be subject to part 64.

Commenters references to Alabama Power and other cases interpreting the statutory phrase “potential to emit” in CAA sec tion 169(1) and

elsewhere are not relevant to this rule. EPA is no t interpreting the phrase “potential to emit” in promulgating this rule nor i s EPA attempting to define a major source in any way inconsistent with prior A gency actions. AsCAM RTC (Part III)

October 2, 1997 Page 45

noted, part 64 only applies to “major sources” as t hat term is defined by part 70. Part 70, in turn, relies on a definition of potential to emit which includes operational limitations and reductions due to control equipment. EPA examines maximum capacity to emit without consi dering the effectiveness of control devices only for the purpo se of determining which units at major sources would benefit most from moni toring of their control devices. Further, the monitoring requirements in t he rule apply only to

units with control devices as defined in the rule. Commenters’ references to units without control devices (e.g., high school heating plants) being subject to part 64 appear unfounded.

Letter(s): Air Products and Chemicals, Inc. (VI-D-1 86); American Furniture

Manufacturers Association (VI-D-203); American Petr oleum Institute (VI-D-146); ASARCO Incorporated (VI-D-187); Can Man ufacturers Institute (VI-D-181); Chemical Manufacturers Associ ation (VI-D-152); Chevron Companies (VI-D-132); Cinergy Corp. (VI-D-1 41); Class of '85 Regulatory Response Group (VI-D-161); Coalition for Clean Air Implementation (VI-D-164); Colorado Association of Commerce and Industry (VI-D-182); Cooperative Power Association (VI-D-208); Dow Chemical Company (VI-D-120); Eastman Chemical Compa ny (VI-D-173); Eli Lilly Company (VI-D-124); General Electric Comp any (VI-D-156); Kennecott Corporation (VI-D-119); LaClede Gas Compa ny (VI-D-198); Mobil Corporation (VI-D-115); Ohio Chamber of Comme rce, et al (VI-D-160); Pennsylvania Chamber of Commerce and In dustry (VI-D-114); Pennzoil Company (VI-D-133); Pharmaceutical Researc h and Manufacturers of America (VI-D-217); R.R. Donnelley & Sons Company (VI-D-221); Rubber Manufacturers Association (VI-D- 149); Specialty Steel Industry of North America (VI-D-143); State of Illi nois (VI-D-183); Steel Manufacturers Association (SMA) (VI-D-144); Tenness ee Valley Authority (VI-D-162); Texaco Environment Health & Safety (VI- D-199); Texas Chemical Council (VI-D-236); Texas Natural Resource Conservation Commission (VI-D-189); Texas Title V Planning Commi ttee (VI-D-188); The Society of the Plastics Industry, Inc. (VI-D-14 8); Total Petroleum, Inc. (VI-D-190); US Small Business Administration (VI-D -239)

Comment c: A few commenters stated that the "pre-co ntrol device emissions"

threshold creates a system where sources have no in centive to maximize control device efficiency. One of the commenters p roposed the addition of an exemption for units with low actual emissions to provide an incentive for maximizing control device efficiency. Two othe r commenters notedCAM RTC (Part III)

October 2, 1997 Page 46

that this same pre-control device emissions concept was criticized when raised as a possible idea in the original EM propos al. These commenters also explained that, if one considers normal effici ency levels, the examples provided in the draft CAM rule document ho w the draft approach would reduce the incentive to employ high efficiency controls. Additional commenters stated that based on the orig inal EM RIA, subpart B pre-control device PTE applicability would not be the most cost-effective approach to meeting the goals of CAM. The commente rs added that EPA's failure to release a CAM RIA prevents comment ers from undertaking a more conclusive analysis of the propo sal's

cost-effectiveness.

One commenter argued that subpart B applicability p rovides a disincentive to install air pollution control devic es because subpart B requirements are burdensome and currently uncontrol led sources will therefore want to avoid installing control devices. The commenter questioned EPA requiring more stringent monitoring for sources with

control devices because uncontrolled sources are li kely to emit more than similar controlled sources. Another commenter poin ted out that sources may not have many opportunities to make process cha nges that lower pre-control emissions but they may have options for reducing post-control device emissions by replacing or improving control devices. The commenter recommended providing the opportunity to avoid subpart B applicability as an incentive for improving control s which would achieve

emission reductions.

Response: The Agency intends that part 64 have a li mited purpose; that is, part 64 is

intended to provide a reasonable means of supplemen ting existing regulatory provisions that are not consistent with the statutory requirements of title VII of the 1990 Amendments to the Act. The EPA believes that the CAM approach is a reasonable appr oach commensurate

with this role. Part 64 is not intended as an ince ntive or a disincentive to

install new emission control measures. The rule do es not define new emission limitations or standards or any other new requirements beyond monitoring intended to measure compliance with alre ady existing requirements. In the final format, the CAM rule pr ovides flexibility for the owner or operator to develop monitoring that is bot h cost-effective and can help improve knowledge of control device operat ions.

Letter(s): Chemical Manufacturers Association (VI-D -152); Colorado Association of

Commerce and Industry (VI-D-182); Institute of Clea n Air CompaniesCAM RTC (Part III)

October 2, 1997 Page 47

(VI-D-139); Rubber Manufacturers Association (VI-D- 149); Specialty Steel Industry of North America (VI-D-143); Steel Manufac turers Association (SMA) (VI-D-144)

Comment d: A state commenter asserted that much eff ort will be spent trying to

quantify pre-control device emissions, a calculatio n that is of no use except to determine CAM applicability. Another com menter argued that it will take years just to sort out the technical issu es raised by this new definition. The commenter gave examples of the ant icipated difficulties such as determining what part of the emissions shou ld count as controlled by the inherent process versus the control device a nd quantifying

uncontrolled emissions when far fewer emission fact ors exist to project uncontrolled emissions as opposed to controlled emi ssions. Other commenters agreed that the use of a new potential t o emit calculus, along with the complex control device definition in the c urrent draft, adds yet another wrinkle to an already confused issue. Thes e commenters argued that allowing sources to consider controls i n determining potential

to emit would be consistent with EPA's stated inten t to apply the subpart B requirements only to significant units. One commen ter stated that EPA should maintain consistency with other CAA programs such as title V,

NSR and MACT.

Response: The Agency disagrees that computing preco ntrol emissions is difficult or

complex. The calculation of precontrol emissions i s the same as for post-control emissions that the commenters suggest be used with the multiplication factor based on a control device eff iciency value. This simple calculation step need not involve measuremen ts of control device inlet values but may rely on vendor guarantees, his torical information, or other published information. The CAM guidance docu ment will provide examples of this calculation for a variety of situa tions.

Letter(s): Air Products and Chemicals (VI-D-186); A SARCO Incorporated

(VI-D-187); Clean Air Implementation Project (VI-D- 153); Coalition for Clean Air Implementation (VI-D-164); Class of '85 Regulatory Response Group (VI-D-161); Colorado Association of Commerce and Industry (VI-D-182); Exxon Company, USA (VI-D-135); General Electric Company (VI-D-156); Ohio Chamber of Commerce, et al (VI-D-1 60); Texaco Environment Health and Safety (VI-D-199); Texas Nat ural Resource Conservation Commission (VI-D-189); Texas Title V P lanning Committee (VI-D-188)CAM RTC (Part III)

October 2, 1997 Page 48

2.1.3: Applicability for Units with Active Controls

Comment a: A few environmental and state commenters supported subpart B

applicability for some units without active control s. These commenters argued that it is not good policy to exclude all un its without active control devices from subpart B since some units without act ive controls have emissions that vary significantly and should be clo sely monitored. One commenter gave an example of a utility boiler capab le of emitting more than 100 tons per year of NO

x which may be controlled by combustion controls only. In supplemental comments following the release of portions of the RIA, this environmental organizatio n reiterated its objection to allowing many major sources to conduct little or no monitoring under subpart C simply because they do not have control d evices. The commenter argued that emissions at units without ad d-on controls, such as those using low NO X burners, can be variable and require effective monitoring. They also stated that recordkeeping ma y be an accurate predictor of SO 2 emissions, but cannot be assumed to be appropriate for

NO X and CO where control of the combustion process is critical.

Another commenter mentioned units using certain com binations of control

methods cited in Table 2 of EPA's "control device" guidance or other process methods, such as low NO

x burners, as examples of important units that should be subject to subpart B requireme nts. One state agency proposed that all major source units with si gnificant potential emissions should be subject to subpart B requiremen ts regardless of the presence of active controls. This commenter noted that a nitrate production facility using ammonia as a feed stock f ollowed by caustic

misters to convert NO

x to nitrate would not be subject to subpart B because the misters would be considered process uni ts and not add-on controls although there is major potential to emit. The commenter also agreed that units like large low NO

x burners should be subject to subpart B requirements.

Response: The Agency agrees that some process opera tions are necessary to

proper emissions control and should be monitored. The deciding factor in determining whether monitoring can be effective is the degree to which the owner or operator can govern the process or con trol device operation to minimize emissions to the levels necessary to co mply with the applicable standard. Some combustion control pract ices fall into thisCAM RTC (Part III)

October 2, 1997 Page 49

category including flue gas recirculation and ammon ia injection for NO

x control. The final rule makes clear that monitorin g of such operations (e.g., recirculation and injection rates) would be subject to part 64 requirements. On the other hand, the Agency disagr ees that emissions variability is necessarily a deciding factor in det ermining when additional monitoring can be effective in improving compliance operations. Variability of emissions resulting from raw materia l or fuel component variability when that is the means used to comply w ith the applicable limit is something over which the owner or operator has o nly limited short term control. Addition of continuous monitoring for suc h operations would constitute monitoring for monitoring’s sake with li ttle or no added value over the required recordkeeping of raw material or fuel supply specifications.

For similar reasons, low NO

x burner technology and certain other types of

combustion control measures are not included in the definition of "control device" in the final rule. Most types of combustio n units that have low

NO

x burner technology use such technology as an inhere nt part of the process operation and the technology is subject to automatic combustion control that does not provide significant operation al flexibility that could afford the owner or operator with an opportunity or incentive to manipulate

NO

x control levels. For these types of units, the recordkeeping of regu lar inspection and maintenance of the low NO

x burners (e.g., annular flow ratio adjustment settings, burner replacement, etc. ) in combination with periodic checks of emission levels with appropriate test methods, as necessary, are very likely sufficient to ensure tha t the unit is being operated in a manner consistent with good air pollu tion control practices

and that the low NO

x technology continues to reduce emissions at least to the level of the standard. The general monitoring requirements in part 70 are adequate to assure that this type of appropriat e monitoring is employed including the application of continuous em ission monitoring systems where already required.

Of course, if there are particular units that fall into the categories described above which raise a significant continuou s compliance concern, such as units with an historically poor compliance history, the permitting authority can require more detailed monitoring unde r the general part 70 monitoring provisions given that the permit must in clude appropriate monitoring for assessing compliance with the permit . In those cases, permitting authorities may want to consider element s of part 64 asCAM RTC (Part III)

October 2, 1997 Page 50

potentially appropriate, but they may not be bound to satisfy each element of part 64.

Letter(s): Natural Resources Defense Council (VI-D- 151); Natural Resources

Defense Council (VI-D-244); NESCAUM (VI-D-192); Sie rra Club, Lone Star Chapter (VI-D-242); State of New Jersey Dept. of Environmental Protection (VI-D-215)

Comment b: Two industry commenters requested that E PA clarify that subpart B

applies only to units with "active control devices. " Revisions to § 64.2(a)(ii) and the addition of a definition for "active control device" were proposed to reflect statements in the preamble that subpart B only applies

to units with active control devices.

Response: The final rule includes a clarified defin ition of control device (see

responses to comments in section 1.1 (Part III).)

Letter(s): Chemical Manufacturers Association (VI-D -152); Exxon Chemical

Americas (VI-D-128)

2.1.4: Applicability for Major Sources

Comment a: A number of commenters favored an absolu te major source threshold for

subpart B based on a standard potential to emit def inition. One commenter argued that EPA should focus CAM on major emitting units which will cover 80-90 percent of emissions at titl e V sources while regulating only 25 percent of the emissions units. The commenter stated that EPA's extension of CAM applicability to non-ma jor units adds tremendous costs to the program while providing nom inal, if any, benefits and that enlarging the program to cover more units dilutes resources needed to carry out a monitoring program for the mo re significant units. According to the commenter, the rule should require CAM only for those units that emit at or above the major source thresh old, which provides an adequate margin of safety since actual emissions ar e routinely and significantly less than potential emissions. Some commenters also noted that EPA can grant permitting authorities discretio n to apply CAM to smaller units where necessary. These commenters ar gued that the breadth of applicability in the 1996 draft is not c onsistent with the goal of CAM to provide cost-effective means of filling moni toring gaps.CAM RTC (Part III)

October 2, 1997 Page 51

An industry coalition stated that EPA has authority to define "major stationary source" including defining this term dif ferently for different purposes. According to this commenter, it is reaso nable for EPA to read the statute as authorizing it to define major stati onary source as each individual emissions unit that meets the major sour ce emissions threshold

since this definition increases the cost-effectiven ess of the rule. Members of the coalition group analyzed their facil ities and found that limiting applicability to units meeting the major s ource threshold results in a very high percentage of emissions being covered b y the rule.

A commenter stated generally that any enforceable r estrictions should be taken into account in calculating PTE. Another com menter specified that CAM should be applied to sources that are major aft er consideration of federally and state enforceable emission controls. One commenter objected to the use of pre-control PTE because it i s not clear whether operational restrictions can still be considered an d because it will subject too many insignificant units to subpart B.

A commenter estimated that the applicability thresh old in the 1996 draft could result in 300,000 to 600,000 emission points requiring CAM plans and will involve huge investments of money (states that the cost associated with testing alone could easily exceed $ 1 billion) and time which will be likely to overwhelm the title V proce ss. The commenter proposed that sources below the major source thresh old only be subject to a much more limited set of CAM plan requirements and that the actual plans be developed by the source and kept on site w ith only the requirement to develop and operate the plan incorpo rated into the permit.

Response: The Agency disagrees with the estimates o f the number of units affected

by the CAM rule and the overall costs resulting fro m its implementation suggested by the commenters. The Agency estimates that the rule will apply to about 27,000 pollutant-specific emissions units which represent about 60 percent of emissions units with control de vices and between 90 and 98 percent of actual emissions, depending on po llutant, from controlled units. The cost of monitoring for these units is estimated to be $54,000,000.

Letter(s): Air Products and Chemicals, Inc. (VI-D-1 86); American Automobile

Manufacturers Association (VI-D-157); Armstrong, Te asdale, Schlafly and Davis (IV-D-205); Association of Battery Recyclers (VI-D-155); CITGOCAM RTC (Part III)

October 2, 1997 Page 52

Petroleum Corporation (VI-D-172); Clean Air Impleme ntation Project (VI-D-153); Coalition for Clean Air Implementation (VI-D-164); Dupont Engineering (VI-D- 127); Exxon Company, USA (VI-D-1 35); Independent Liquid Terminals Association (VI-D-178); Kennecott Corporation (VI-D-119); Texaco Environment Health & Safety (VI- D-199)

Comment b: One commenter recommended basing subpart B applicability on emission

thresholds as defined by the local permitting autho rities. The commenter noted that in some areas the major source threshold s have been adjusted below those in part 70 and that the current provisi ons are unclear for

these circumstances.

Response: The Agency agrees that the definition of major source threshold may be

lower than that defined by part 70 if it is defined by the local permitting authority. The locally defined threshold may apply for determining CAM applicability to the extent the permitting authorit y exercises its independent authority to require part 64 monitoring beyond the minimum required by part 64.

Letter(s): County Sanitation Districts of Orange Co unty, California (VI-D-231)

Comment c: An environmental organization was oppose d to using the major source

threshold. The commenter argued that there is no s tatutory basis for limiting subpart B to units with emissions greater than the major source threshold, which exempts significant units simply b ecause their emissions are less than a number designed to indicate if an e ntire source is major.

This commenter noted that control device failure at units under the major source threshold could have enormous pollution cont rol consequences.

Response: The Agency agrees that it would not be wi se to exempt all units below the

major source threshold and no additional response i s necessary.

Letter(s): Natural Resources Defense Council (IV-D- 151)

2.1.5: Applicability for Minor Sources

Comment a: Some commenters argued that EPA should e stablish that subpart B of the

1996 part 64 Draft does not apply to synthetic mino r sources. ACAM RTC (Part III)

October 2, 1997 Page 53

commenter explained that it wanted EPA to confirm t hat sources which have voluntarily assumed federally enforceable emis sions limitations in order to be classified and regulated as minor sourc es would be exempt from subpart B since these sources limit emissions by means of limiting hours of operation and other measures rather than b y the use of control devices. The commenter requested that EPA expressl y exclude such sources from CAM and added that, to the extent that such sources use control devices to comply with minor NSR limits, th ey should be excluded as well. An alternative suggested by another comme nter was that the rule could only include those limits taken to avoid major NSR when the potential to emit of the unit is above 85 percent o f the level for triggering major NSR. This commenter described this approach as consistent with title V. A state agency stated that it does not ag ree with EPA that state minor NSR programs are applicable requirements for the federal CAA and part 70.

Response: The CAM rule applies to pollutant-specifi c emissions units at major

sources that are required to obtain title V permits . To the extent that synthetic minor sources are exempt from title V per mitting requirements or are not a major source, units at such sources are n ot subject to part 64 requirements. In addition, part 64 will not apply to synthetic minor sources that do not meet the definition of a "major source" in part 70 but may be subject to part 70 because of NSPS or NESHAP units. Certain sources may be classified as synthetic minor source s for title 1, part C, New Source Review permit purposes (i.e., they are b elow the generally applicable 250 tons per year threshold for PSD perm itting) but still be classified as a "major source" for part 70 purposes . Pollutant-specific

emissions units at those sources which meet all of the part 64 applicability criteria will be subject to part 64. The criteria for triggering part 64 requirements are discussed above. Whether minor NS R programs are applicable requirements under part 70 is not an iss ue relative to part 64. No additional response is necessary.

Letter(s): Association of Battery Recyclers (VI-D- 155); Chemical Manufacturers

Association (VI-D-152); Texas National Resource Co nservation Commission (VI-D-189)

Comment b: A commenter stated that CAM should not a pply to minor sources that are

required to obtain part 70 permits since, by defini tion, non-major sources are less significant. In addition, the commenter n oted that many of theCAM RTC (Part III)

October 2, 1997 Page 54

non-majors source that could be subject to CAM woul d be MACT sources that will be exempt anyway. Finally, this commente r suggested that, at a minimum, the rule should defer CAM applicability fo r these sources. Other commenters argued that applicability for thes e sources was unclear. Two commenters recommended that the rule s tate explicitly that minor sources required to obtain title V permits ar e not subject to CAM. Another commenter stated that language in the discu ssion document accompanying the 1996 part 64 Draft was not consist ent with rule language which suggested that minor sources require d to obtain part 70 permits would be subject to subpart B rather than s ubpart C.

Response: The final rule states explicitly that par t 64 applies to major sources, as

defined under part 70, that are required to obtain a title V permit.

Letter(s): Electronic Industries Association (VI-D- 137); General Electric Company

(VI-D-156); Kennecott Corporation (VI-D-119); PPG I ndustries, Inc. (VI-D-136)

2.1.6: Discretionary Applicability of Subpart B

Comment a: A number of commenters argued that the C AM rule's provisions which

give permitting authorities the discretion to apply subpart B monitoring requirements to additional emissions units should b e altered or eliminated. Two commenters stated that by providing permitting authorities with the

discretion to cover additional emissions units unde r § 64.2(a)(2), the CAM rule potentially subjects too many emissions units to subpart B monitoring requirements. Another commenter added that there i s no need for this provision if subpart B units are clearly delineated as those with control

devices.

Several commenters described § 64.2(a)(2) as an ove rly-expansive delegation of authority to state and local permitti ng authorities. Other commenters argued that this provision is also unnec essary because state legislatures can give permitting authorities the po wer under state law to impose more stringent monitoring requirements than required under the federal program. Another commenter requested that since some states limit the ability of a state agency to impose more stringent requirements, this provision should be narrowly tailored for extr eme cases. If this provision is not deleted, it should be modified suc h that permittingCAM RTC (Part III)

October 2, 1997 Page 55

authorities can only impose subpart B monitoring on subpart C units when necessary or appropriate to assure compliance with a part 70 permit.

Some commenters suggested limiting this discretion as an alternative to eliminating it. A commenter explained that there n eed to be some criteria to judge whether the permitting authority has acted properly as well as a mechanism to resolve disputes over a decision to ap ply this paragraph. One commenter stated that under the proposed revisi on, the authority must base this determination on the following: the size of the emissions unit, pollutant toxicity, attainment status, compli ance history, likelihood of deviations, cost effectiveness, and other appropria te factors. A commenter added that permitting authorities should consider exposure to residential population as well as pollutant toxicit y in reclassifying sources. Another commenter discussed an example of a recent attempt by one permitting authority to use discretionary authority under NSR permitting to require a CEMS where a CEMS was not required under any specific requirement and other less costly methods could ass ure compliance. This commenter was concerned that permitting author ities could similarly

abuse this discretion and it should therefore be de leted. The commenter asserted that if this provision is not deleted, eco nomic costs and operational constraints should be specified as requ ired criteria for judging the reasonableness of using this authority. Anothe r commenter argued that this provision only further increases the like lihood that similar sources will be treated differently and therefore increases the chance that sources could be put at an economic disadvantage.

One commenter stated that even though this provisio n should be eliminated, it commended EPA for revising the prior draft rule so that EPA can only reclassify sources when it is the permitti ng authority, since EPA should not second guess states on relatively minor matters to which the

states are closest.

Two commenters argued that EPA cannot properly asse ss the impact of the rule when it cannot possibly know how many sour ces will be required by the states to comply with subpart B.

Response: The Agency agrees that repetition of the inherent discretion available to

permitting authorities is unnecessary. The final r ule has only the savings provisions that, because part 64 requirements may o verlap with many other applicable requirements, nothing in part 64 i s intended to excuse the owner or operator from applicable requirements unde r the Act (includingCAM RTC (Part III)

October 2, 1997 Page 56

emission limitations or standards as well as other monitoring requirements) or to restrict the authority of the E PA or the permitting authority to impose additional monitoring under the Act or State law, as applicable.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); American

Gas Association (VI-D-154); American Petroleum Inst itute (VI-D-146); Chemical Manufacturers Association (VI-D-152); Coas tal Corporation (VI-D-123); Colorado Association of Commerce and In dustry (VI-D-182); Gas Processors Association (VI-D-163); General Elec tric Company (VI-D-156); KBN Engineering and Applied Sciences, I nc. (VI-D-229); Pennsylvania Chamber of Business and Industry (VI - D-114); Total Petroleum (VI-D-190); Texaco Environment Health and Safety (VI-D-199); UCAR Carbon Company, Inc. (VI-D-122); U tility Air Regulatory Group (VI-D-140); Virginia Power (VI-D-226)

Comment b: Some commenters argued that permitting authorities should be able to

exempt subpart B units or reclassify pollutant-spec ific emissions units from subpart B to subpart C. According to one comm enter, if states retain the power to reclassify subpart C sources as subject to subpart B, fairness and logic dictate that this authority shou ld run both ways. Another commenter added that the title V process wi ll assure all such decisions are reviewed by both EPA and the public. A commenter

asserted that there are some cases where a unit, su ch as a cement or limestone silo controlled by a small baghouse, may be subject to subpart B monitoring requirements where there is no need fo r such monitoring and recommended that permitting authorities be give n the flexibility to classify some subpart B units as subpart C units wh en it can be demonstrated that subpart B monitoring does not yie ld any significant

environmental benefit. One commenter also stated t hat providing permitting authorities significant discretion in ex empting a unit that would otherwise be subject to subpart B would mitigate pr oblems associated with the broad scope of subpart B and specified fac tors to be considered.

Response: The final rule does not include the monit oring defined for subpart C units;

therefore, the possibility of reclassifying a pollu tant-specific emission unit from subpart B to subpart C is not relevant. With respect to smaller units that may be subject to part 64, EPA notes that the final rule also distinguishes between the frequency of monitoring r equired for small and large units (see section 6 (Part III), below). Gra nting permittingCAM RTC (Part III)

October 2, 1997 Page 57

authorities broad authority to exempt sources from part 64 is inconsistent

with EPA’s rationale for the sources covered.

Letter(s): Chemical Manufacturers Association (VI-D -152); Exxon Chemical

Americas (VI-D-128); Pennsylvania Department of Env ironmental Protection (VI-D-174); Texaco Environment Health an d Safety (VI-D-199)

Comment c: A commenter recommended allowing permitt ing authorities to determine

subpart B applicability on a case-by-case basis.

Response: The Agency believes that the monitoring a nd the applicability criteria as

defined in part 64 represent the fundamental requir ements for a monitoring program. The intention is that permitti ng authorities apply part 64 as minimum requirements and build upon them in d eveloping a monitoring program appropriate to a particular area s. Case-by-case reduction of part 64 monitoring requirements or dec isions to discount applicability are not consistent with the design of part 64. The EPA encourages States to consider adding monitoring req uirements to existing and new rules that are consistent with or exceed pa rt 64 requirements.

Letter(s): County Sanitation Districts of Orange Co unty, California (VI-D-231)

2.1.7: Requests for Clarification

Comment a: A few commenters argued that subpart B a pplicability should be based on

emissions points rather than on emissions units. T wo of the commenters

stated that the term "emissions unit" is nebulous a nd can apply to a wide range of equipment and systems but an "emissions po int" would always be defined as the point of air emissions discharge, even where multiple tanks or vents are directed to a single control dev ice. These commenters provided examples of confusion that may result from use of the term

"units" and stated that clarification on this matte r will simplify the analysis by not requiring determinations about what constitu tes a unit, and by eliminating confusion over determining "potential t o emit" when multiple

control devices are involved. Another commenter al so recommended specific revisions to § 64.2(a)(1) to replace the t erm "emissions unit" with "emissions point."CAM RTC (Part III)

October 2, 1997 Page 58

Response: The Agency disagrees that defining applic ability based on emissions point

rather than emissions unit would simplify applicabi lity determinations. Section 70.5(c) requires owners or operators to ide ntify all emissions units, as well as all applicable requirements and c ontrol equipment associated with each emissions unit. Because part 64 will be implemented through the title V permit process, con sistency with part 70 terminology is essential. Furthermore, most applica ble emission limitations or standards apply to specific manufact uring processes or operations (i.e., emissions units), not to individu al vents or points of discharge. As noted above, the goal of the rule is to provide for monitoring of pollutant-specific emission units to be used to certify compliance with applicable requirements. The final rule includes clarification of the definition of pollutant-specif ic emission unit and additional description on monitoring of multiple un its venting to a common control device and single units venting to multiple control devices.

Letter(s): ASARCO Incorporated (VI-D-187); Texas Ch emical Council (VI-D-236);

Texas Title V Planning Committee (VI-D-188)

Comment b: One state agency requested clarification that any unit that is exempt from

subpart B is subject to subpart C unless it is exem pt pursuant to Section 64.2(c). This commenter also requested clarificati on as to whether the phrase "under this paragraph (a)(2)" in § 64.2(a)(2 ) is intended to require some type of action on the part of EPA, such as gra nting delegation authority to the states to make pollutant-specific emissions unit applicability determinations per § 64.2(a)(2).

Response: The final rule does not include subpart C as did the 1996 part 64 Draft

rule; however, the final rule does make clear that pollutant-specific emission units not subject to part 64 are subject t o periodic monitoring requirements in accordance with the title V operati ng permits programs.

Letter(s): Ohio EPA, Division of Air Pollution Cont rol (VI-D-180)

Comment c: A commenter requested clarification as t o whether a pollutant-specific

emissions unit with an uncontrolled HAP emissions r ate below the HAP threshold (10 tons per year) is subject to subpart B if the combined HAP emissions from two or more pollutant-specific emiss ions units result in potential emissions of total HAP greater than 25 TP Y, or whether each emissions unit would fall under subpart C.CAM RTC (Part III)

October 2, 1997 Page 59

Response: The applicability of part 64 is aimed at pollutant-specific emissions units

with applicable emission limitations or standards. The rule does not provide for combining emissions of multiple polluta nts subject to separate emission limitations or standards to determine appl icability. The permitting authority may determine to apply the par t 64 monitoring requirements in such situations, as appropriate.

Letter(s): Ohio EPA, Division of Air Pollution Cont rol (VI-D-180)

Comment d: One commenter requested clarification th at sources are not required to

calculate potential pre-control device emissions fo r like units, in the same manner that they are not required to develop multip le CAM plans for

like-units.

Response: The Agency agrees that documentation of a pplicability may include

information from like units rather than case-by-cas e calculations. See section 8 (Part III), below for further discussion.

Letter(s): County Sanitation Districts of Los Angel es County (VI-D-232)

Comment e: A commenter specifically requested confi rmation that if a unit with a fabric

filter is not subject to any specific limitations c overing the fabric filter then subpart B does not apply. Another commenter reques ted clarification that subpart B applies only to the pollutant for wh ich the control device

was installed. The commenter asserted that this ha s been stated as

EPA's intent, but that the rule is not clear on thi s issue since the definition of "pollutant-specific emissions unit" only limits the universe of units, not control devices, brought into subpart B.

Response: The applicability provisions in part 64 f ocus monitoring requirements on

units that use control devices to achieve complianc e. If, as in the first commenter's example, a fabric filter is installed b ut is not necessary to achieve compliance because there is no applicable e mission limitation or standard, part 64 would not apply. For the second comment, § 64.2 states explicitly that part 64 applies only to thos e pollutant-specific

emissions units for which a control device is used to achieve compliance. Thus, consider as an example a boiler that uses onl y a fabric filter as a control device. Also, assume that the boiler has p otential pre-controlCAM RTC (Part III)

October 2, 1997 Page 60

device emissions of particulate matter and carbon m onoxide that exceed the part 64 threshold, and that the boiler is subje ct to applicable requirements for both pollutants. If the boiler re lied on the fabric filter to control particulate matter emissions, but not to co ntrol CO emissions, part 64 would apply to the boiler only with respect to p articulate matter.

Letter(s): American Furniture Manufacturers Associa tion (VI-D-203); ASARCO

Incorporated (VI-D-187)

Comment f: A commenter provided specific examples t o highlight applicability

concerns. The commenter stated that CAM applicabil ity determinations seem to be based on a "potential to emit" calculati on which assumes operations for 8,760 hours per year. The commenter then argued that this assumption is unrealistic for many sources and went on to provide a table of engine-driven systems with averaging opera ting hours of from 1,000 to 5,000 hours per year.

Response: As noted above, the definition of potenti al to emit shall have the same

meaning as provided under part 70 or 71, provided t hat it shall be applied with respect to an "emissions unit" as defined unde r this part in addition to a "stationary source" as provided under part 70 or 71. That defined term takes into account any federally-enforceable restri ctions on operating hours. The use of potential pre-control device emi ssions in part 64 does not affect this aspect of the part 70 definition.

Letter(s): LaClede Gas Company (VI-D-198)

Section 2.2: Subpart C Applicability

2.2.1: Scope of Applicability

Comment a: A few commenters offered general support for the applicability provisions.

An association of state and local authorities state d that the universe of sources subject to CAM is reasonable and represents the size and type of emissions units that should regularly conduct monit oring. A commenter specifically supported the provisions which require sources with passive emission controls to comply with the recordkeeping requirements of subpart C but do not require them to develop CAM pl ans. OneCAM RTC (Part III)

October 2, 1997 Page 61

commenter also supported the option for no monitori ng for some units under subpart C. Another commenter favored the mor e streamlined two subparts of the 1996 CAM Draft over the three tiere d scheme in the 1995

CAM Draft.

Response: No response necessary.

Letter(s): American Electric Power (VI-D-129); Depa rtment of Energy (VI-D-196);

Pacific Gas Transmission Company (VI-D-230); STAPPA /ALAPCO (VI-D-179)

Comment b: A number of commenters supported limitin g the applicability of subpart C.

One commenter stated that the breadth of subpart C applicability is contrary to improvements suggested during the enhan ced monitoring rulemaking to limit applicability and the principle of minimizing costs expressed in "Reinventing Environmental Regulation, " and produces little if any environmental benefit. Two commenters argue d that at the very least, EPA should not apply CAM to non-significant units that would not have been covered under the original EM proposal. According to these commenters, the breadth of subpart C (and subpart B ) applicability will

result in extreme administrative burdens with virtu ally all 25,000 title V sources being required to submit permit application s and proposed monitoring protocols or CAM plans. These commenter s were also concerned that the exemptions are not self-implemen ting and hundreds of thousands of exemption requests will also have to b e submitted and reviewed. Finally, a commenter noted generally tha t the approach taken in subpart C will result in thousands of exemption proposals and create unmanageable paperwork burdens, and stated that the rule should at least exempt a specific list of minor units that do not need to be addressed in the first round of subpart C requireme nts.

A commenter argued that the applicability provision s of CAM (subparts B and C combined) apply to too many pollutant-specifi c emissions units noting that CAM monitoring requirements apply to al l units at a major source which are subject to an emission limitation or standard whereas the EM proposal would have applied only to those un its at a major source with emissions of a regulated pollutant for which t he source is major at a level equal to or greater than 30 percent of the ma jor source threshold for that pollutant.CAM RTC (Part III)

October 2, 1997 Page 62

Many commenters recommended specific ways to limit the applicability of subpart C. The current CAM draft applies subpart C to too many sources. Subpart C applicability should be determined on a u nit basis. Recommends revising § 64.2(b) such that subpart C a pplies only to pollutant-specific emissions units located at a maj or source (i.e. major for the specific pollutant) which is required to obtain a part 70 permit, that are not subpart B units, and are not otherwise exempt u nder § 64.2(c)(2). A few commenters supported establishing a self-implem enting size or unit capacity de minimis threshold under which subpart C does not apply. Other commenters agreed that this approach would fr ee permitting authorities from the process of approving the use o f limited monitoring or recordkeeping for less significant units. One of t hese commenters provided facility data to show that 70 percent of u nits at four facilities (755 total units) likely fall into the "no monitoring" c ategory. Some commenters specifically favored subpart C appl icability only for major units based on a standard potential to emit d efinition. They also stated that EPA could grant permitting authorities discretion to apply CAM to smaller units where appropriate. These commente rs argued that the current breadth of applicability is not consistent with CAM's stated goal of providing cost-effective means of filling monitorin g gaps. Other commenters agreed that smaller units could be subje ct to subpart C at the permitting authority's discretion or could be subje ct to state monitoring and recordkeeping requirements through the title V perm it, or suggested that these units could be addressed in later rounds of p ermitting. A commenter suggested that the rule explicitly state that minor sources required to obtain part 70 permits are not subject to CAM.

One commenter suggested that actual emissions of gr eater than 50 percent of the major source threshold would be an a ppropriate criterion and argued that periodic monitoring already address ed in a permit or other monitoring proposed in a permit application, or no monitoring at all would be appropriate for insignificant or trivial u nits. Another commenter recommended applying subpart C to units without act ive control devices if their actual emissions were at or above 40 percent of the applicable major

source threshold and to units with active control d evices that have precontrol device "actual" emissions below 40 perce nt of the major source threshold. This commenter provided a detailed anal ysis of one facility to demonstrate the reasonableness of this approach. S ome commenters recommended revising the rule to provide that subpa rt C applies only to emissions units that are subject to an applicable r equirement. A few commenters stated the intent reflected in the pream ble and technicalCAM RTC (Part III)

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guidance document that limits subpart C to units su bject to an applicable requirement should be incorporated into the rule it self. They were concerned that the current subpart C applicability provisions could include countless pieces of small, insignificant equipment that are not otherwise subject to EPA air regulation. Other commenters ar gued that, although they did not believe it was EPA's intent, the 1996 part 64 Draft suggests that, if a source has a non-exempt emission limit a nd includes at least one PSEU that is not subject to subpart B, then subpart C applies to all PSEUs at the source. Two commenters specified lang uage changes to exempt units with no applicable requirement as defi ned in part 70, including adding the phrase "for applicable regulat ed air pollutants" to § 64.2(b)(1) to clarify that subpart C does not apply to emissions that are not applicable regulated air pollutants. A comment er specifically recommended that for purposes of subpart C, interna l combustion engines should not be aggregated with other sources at a facility to determine if they are a major source subject to CAM . The commenter argued that since subpart B applies on a unit by un it basis, subpart C

should as well.

Response: The Agency has decided not to pursue the Subpart C option included in

the 1996 part 64 Draft based on the comments receiv ed and also because of concerns about disrupting the ongoing im plementation of part 70. The applicability of monitoring for units not subject to part 64 will be determined in accordance with part 70 requirements. No additional response is necessary.

Letter(s): Air Products and Chemicals (VI-D-186); A merican Automobile

Manufacturers Association (VI-D-266); American Gas Association (VI-D-154); Chevron Companies (VI-D-132); Clean Air Implementation Project (VI-D-153); Coalition for Clean Air Impleme ntation (VI-D-164); Coastal Corporation (VI-D-123); Eastman Chemical Co mpany (VI-D-173); Eli Lilly Company (VI-D-124); Engine Ma nufacturers Association (VI-D-117); Exxon Company, USA (VI-D-13 5); Georgia Department of Natural Resources (VI-D-193); Pennzoi l Company (VI-D-133); PPG Industries, Inc. (VI-D-136); R.R. D onnelley & Sons Company (VI-D-221); Specialty Steel Industry of Nor th America (VI-D-143); Steel Manufacturers Association (SMA) ( VI-D-144); Texaco Environment Health and Safety (VI-D-199); Texas Che mical Council (VI-D-236); UCAR Carbon Company, Inc. (VI-D-122); U nion Carbide Corporation (VI-D-170); Utility Air Regulatory Grou p (VI-D-140); Virginia Power (VI-D-226)CAM RTC (Part III)

October 2, 1997 Page 64

Comment c: Two commenters argued that sources with existing monitoring should be

exempt from subpart C. They stated that although § 64.9 of the 1996 part 64 Draft allows the source to propose the use of existing monitoring, it makes little sense to require permitting authori ties to make a determination for every requirement that existing m onitoring is adequate.

Response: As noted above, the final rule does not i nclude requirements for units that

would have been subject to subpart C requirements. These determinations will be made in accordance with part 70 requirements. No additional response is necessary. Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Phillips

Petroleum Company (VI-D-131)

2.2.2: Recommends Deleting Subpart C

Comment a: A few commenters stated that since subpa rt C does not apply to control

devices, subpart C is unnecessary to accomplish the CAM goal of ensuring that proper O&M is used on control devices and should be deleted. These commenters stated that permitting a uthorities could remain free to make subpart C-type judgments a part of their title V or other programs especially under a programmatic opti on.

One commenter argued that units not equipped with a ctive control devices are usually incapable of modulating their pollutant emissions and should not be regulated by part 64. The commenter stated that monitoring of

uncontrollable emissions is wasteful of limited res ources that could be more appropriately concentrated elsewhere.

Response: As noted above, the final rule does not i nclude monitoring requirements

for units that would have been subject to subpart C requirements. These units will be subject to the monitoring requirement s in § 70.6 (a)(3) (or the provisions of part 71, if applicable). No addition al response is necessary.

Letter(s): ASARCO Incorporated (VI-D-187); CITGO P etroleum Corporation

(VI-D-172); Gas Processors Association (VI-D-163); Texas Title V Planning Committee (VI-D-188)CAM RTC (Part III)

October 2, 1997 Page 65

2.2.3: Requests Clarifications

Comment a: A commenter requested clarification on t he following text from the

discussion accompanying the 1996 part 64 Draft: ".. .whether it is necessary to exempt any major emission units from C AM monitoring if minimal recordkeeping of process hours of operation or ordinarily recorded operational activity will satisfy CAM data collection under subpart C." The commenter asked why an exempt unit would b e required to monitor or record anything.

Response: The context of the referenced text was in a request for comment on an

exemption included in the 1996 part 64 Draft rule f or municipally owned utilities. Specifically, the request for comment w as to address whether the resources saved by exempting such units even fr om minimal recordkeeping of process operations were justifiabl e given that some of these units may be major emissions units. Under the final rule, exempt units such as small municipal backup utility units, must comply with the periodic monitoring requirements in part 70. The e xemption provided is only for the requirements in part 64.

Letter(s): Wisconsin Electric Power Company (VI-D-1 30)

Section 2.3: Exemptions

Section 2.3.1: Exempt Limits

2.3.1.1: Supports Exemption of Various Emission Lim its

Comment a: Several commenters supported the exempti on of emission limitations or

standards proposed by the Administrator after Novem ber 15, 1990, pursuant to section 111 or section 112 of the Clean Air Act. The commenters agreed that the monitoring in these stan dards will satisfy the requirements of the Act. A state agency expressed its support for EPA's statement in the preamble that it is committed to d eveloping post-1990 standards with continuous compliance determination methods. The commenter proposed reviewing standards promulgated prior to the 1990 CAAA, when such review occurs pursuant to section 1 11(b) of the Act, to determine whether existing standards require additi onal monitoring requirements to satisfy part 64.CAM RTC (Part III)

October 2, 1997 Page 66

Response: No response necessary.

Letter(s): Dow Chemical Company (VI-D-120); Georgia Department of Natural

Resources (VI-D-193); Integrated Waste Services Ass ociation (VI-D-147); Kennecott Corporation (VI-D-119); Louisiana Mid-Con tinent Oil and Gas Association (VI-D-184); Texas Natural Resource Cons ervation Committee (VI-D-189); The Fertilizer Institute (VI-D-145)

Comment b: One commenter asked for confirmation tha t the exemption still applies

where a MACT standard requires only general O&M eve n though the definition of emission limitation or standard speci fically excludes such general requirements from the definition of an emis sion limitation or standard. The commenter cited the gravure MACT as an example, and suggested changes to the definition of emission lim itation or standard to

address the issue.

Response: The Agency intends that the exemption app ly to emission limitations or

standards proposed by the Administrator after Novem ber 15, 1990 pursuant to section 111 or 112 of the Act without e xception. If a specific subpart of part 63 establishes a specific source ca tegory standard related to O&M (as opposed to the general provisions in § 6 3.11), that O&M requirement would meet the definition of emission l imitation or standard.

Letter(s): R.R. Donnelley & Sons Company (VI-D-221)

Comment c: Another commenter requested clarificatio n that where a part 70 permit

takes advantage of the ability to streamline multip le requirements by subsuming the less stringent requirements, CAM will not apply to the subsumed requirements. As an example the commenter argued that an MWC unit exempt from CAM with respect to post-1990 MACT limits should not be subject to CAM for pre-1990 limits if the part 70 permit subsumes those limits under the more stringent MACT standard. The commenter also stated that EPA should provide some form of transition phase so that this subsumed limit concept could be incorporated into the title V permit, especially where exempt MACT limits have been promulgated but have future effective dates. The c ommenter illustrated this point by stating that the MWC MACT allows faci lities until the year 2000 to come into compliance and a source should no t have to addressCAM RTC (Part III)

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CAM for existing limits where those existing limits will be subsumed when the MACT rule becomes effective in the year 2000.

Response: The Agency agrees that, to the extent tha t monitoring specified through a

permit addresses the control of more than one pollu tant (e.g., a criteria pollutant and a HAP) subject to separate limitation s, a separate set of monitoring requirements for each pollutant is unnec essary. That is not to say that the requirements do not apply; but, instea d, the permit may specify that monitoring that assesses compliance wi th the more stringent standard may also satisfy part 64 for monitoring of compliance for other regulated pollutants. On the other hand, the Agenc y disagrees that implementation of part 64, if applicable, or other existing monitoring requirements (e.g., part 70) should be delayed unti l new regulations apply. Owners of emission units with existing emission li mitations or standards are subject to compliance certification requirement s for those limitations or

standards. Part 64 is intended to define minimum m onitoring requirements to support valid certifications.

Letter(s): Integrated Waste Services Association (V I-D-147)

Comment d: One commenter offered specific support f or the § 64.2(c)(1)(iii) exemption

for Acid Rain Program requirements stating that und er part 75 monitoring requirements already exist for power plant units su bject to acid rain limits.

Response: No response necessary.

Letter(s): American Electric Power (VI-D-129)

Comment e: Several commenters supported the § 64.2( c)(1)(iv) exemption for

emission limitations or standards that apply solely under an approved emissions trading program. One commenter stated th at the inclusion of the exemption in part 64 is responsive to previous comments urging EPA not to discourage source participation in emissions trading programs by subjecting such programs to part 64 monitoring requ irements.

Two commenters who supported the exemptions in the 1996 part 64 Draft generally expressed particular support for this exe mption. One of the commenters stated that the expanded category of exe mptions in this draft correctly recognized that certain applicable requir ements should not beCAM RTC (Part III)

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subject to CAM and that the monitoring associated w ith many standards should be deemed to satisfy CAM. The commenter not ed that these exemptions serve the CAM goal of providing cost-eff ective gap-filling.

One commenter requested EPA confirmation that SCAQM D's Regional Clean Air Incentives Market (RECLAIM) program quali fies as an approved emissions trading program under § 64.2(c)(i)(iv).

A commenter recommended that this provision be revi sed to specify that averaging plans approved under a State SIP for comp liance with NO

x RACT or other requirements are included under this exemption provided they are subject to part 75 or other continuous emi ssion monitoring requirements.

Response: The Agency agrees that monitoring for com pliance with emission trading

programs would incorporate direct measure of emissi ons and would satisfy CAM requirements. The Agency believes that a blanket exemption in the rule for state SIP monitoring is u nnecessarily broad and, instead, provides that use of a continuous emission monitoring system or predictive emission monitoring system that is subje ct to any of several published performance specifications shall be presu med to satisfy the general design criteria in part 64. This reduces t he documentation required for justifying monitoring and allows the p ermitting authority an opportunity to review the appropriateness of the op erating criteria and applicable emission limitations.

Letter(s): American Petroleum Institute (VI-D-146); Clean Air Implementation

Project (VI-D-153); Niagara Mohawk (VI-D-168); Sout h Coast Air Quality Management District (VI-D-233); Texaco Environment Health and Safety (VI-D-199)

Comment f: Certain commenters expressed general sup port for the § 64.2(c)(1)(v)

exemption for emission caps meeting the requirement s of § 70.4(b)(12).

Other commenters qualified their support with reque sts to extend this exemption. One commenter stated that a PAL should n ot have to meet § 70.4(b)(12) to qualify for the exemption. The comm enter argued that any federally-enforceable PAL with monitoring to determ ine compliance should be exempt. Two pharmaceutical industry comm enters supported EPA's recognition of the past efforts of states and industry to useCAM RTC (Part III)

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innovative emissions cap approaches to meet air pol lution control requirements while allowing pharmaceutical faciliti es to retain the operating flexibility to respond to medical emergen cies and market demands. However, these commenters argued that EPA should expand the § 64.2(c)(1)(v) emission cap exemption to inclu de emissions caps created under NSR/PSD permits and existing applicab le requirements. The commenters noted that to increase their operati ng flexibility or to avoid the NSR/PSD process pharmaceutical facilities have obtained emissions caps over all or some of their operations which will be incorporated into the sources' title V permits. Th ey also stated that states have issued construction and operating permits with emission caps on an entire facility, on a portion of a facility (e.g., the pharmaceutical organic synthesis production operations) or on a building w ithin a facility.

Response: The Agency believes that the final rule a dequately addresses exemptions

for plant-wide emission limits with monitoring to s how compliance with applicable limits under the provisions in the CAM r ule for exempting units that apply continuous compliance determination meth ods. Further, the final rule includes an exemption for units with emi ssions caps as defined in part 70 that is sufficiently broad to include NS R/PSD provisions. No additional revisions are necessary.

Letter(s): Chevron Companies (VI-D-132); Eli Lilly Company (VI-D-124); Electronic

Industries Association (VI-D-137); Pharmaceutical R esearch and Manufacturers of America (VI-D-217); The Fertilizer Institute (VI-D-145)

2.3.1.2: Recommends Broadening Exemption for Variou s Emissions Limits

Comment a: One commenter requested that the exempti ons be broadened to include

situations where multiple requirements apply and th e monitoring required to meet one requirement will assure compliance with the other requirement. The commenter stated that a mechanism is needed to exempt from CAM pre-November 15, 1990 applicable re quirements where compliance is demonstrated by monitoring which is p art of a post-November 15, 1990 rule. The commenter argued that this is necessary since title V provisions will address dup licative requirements for the same pollutant but not the case of common monit oring for different pollutants such as an emission unit with both a HAP and a VOC limit where parameter monitoring under MACT also shows co mpliance with the part 61 or VOC limit and vice-versa.CAM RTC (Part III)

October 2, 1997 Page 70

Response: The Agency has published guidance (White Paper 2, docket item

A-91-52-VI-I-2) to address the streamlining of mult iple emission limitations and associated monitoring. As noted above, such st reamlining of monitoring requirements can be used to satisfy part 64. No additional response is necessary. Letter(s): Exxon Chemical Americas (VI-D-128)

Comment b: Two commenters recommended broadening th e exemption for title IV

requirements. According to one commenter, all Acid Rain affected units should be exempt from CAM, rather than exempting on ly certain Acid Rain emission limits. The commenter argued that an additional burden on utilities is unnecessary since most of the large r utility plants are subject to monitoring requirements under NSPS and SIPs as w ell as part 75.

The commenter stated that the additional burdens sh ould not be expected to add to environmental quality. Another commenter added that the rule should exempt AELs established pursuant to section 407(d) of the CAA

and emissions limitations established in a NO

x emissions averaging plan pursuant to 407(e) since compliance with these limi ts are determined by part 75 just as the limits included in the draft ru le's exemption are.

Response: The Agency disagrees that monitoring for compliance with the title IV

emissions limitations provides information sufficie nt to determine compliance with all other emission limitations or s tandards for the same emissions unit. For example, many of the utilities subject to SO 2 annual limitations because of the Acid Rain regulations ar e also subject to short term (e.g., 3-hour) emission limitations resulting from other regulations (e.g., NSPS). The monitoring data reduction to sho w compliance with the

acid rain limitations would not be sufficient for c ertifying compliance with the short term standards. The Agency agrees that t he monitoring used for measuring compliance with the acid rain SO 2 annual limitation may be modified to accommodate the short term averaging ti me and part 64 allows that such application of existing monitoring is appropriate. On the other hand, the same facility may also be subject t o particulate emission limitations not addressed at all by the acid rain m onitoring. Monitoring for compliance with the particulate emission limita tion or any other pollutant would be not be addressed without part 64

.

The Agency agrees that units subject to alternative emission limits or emission averaging under sections 407(d) and (e) ar e subject toCAM RTC (Part III)

October 2, 1997 Page 71

monitoring adequate to demonstrate compliance with the applicable limitations under title IV should not be subject to additional monitoring to show compliance under the CAM rule. The Agency bel ieves that sources subject to such regulations are exempted from CAM r equirements as

indicated above. Letter(s): Cinergy Corp (VI-D-141); Class of '85 Re gulatory Response Group

(VI-D-161)

Section 2.3.2: Continuous Compliance Determination Methods Exemption

2.3.2.1: Supports Continuous Compliance Determinati on Method Exemptions

Comment a: Two commenters specifically supported th e § 64.2(c)(1)(vi) exemption for

sources subject to continuous compliance determinat ion methods that do

not use an assumed control factor. These commenters stated that any source without active controls and which already ha s a continuous compliance determination method specified in its ti tle V permit should be exempt from the CAM rule.

Response: No response necessary.

Letter(s): Enron Operations Corp. (VI-D-235); Pacif ic Gas Transmission Company

(VI-D-230)

2.3.2.2: Recommends Broadening Continuous Complianc e Determination Method Exemption

Comment a: Some commenters argued that the continuo us compliance determination

method exemption should be expanded to include any continuous compliance method specified in any air permit or fe deral standard. Two commenters stated that the exemption in the 1996 pa rt 64 Draft was

limited to emission limitations or standards "for w hich a part 70 permit specifies a continuous compliance determination met hod," and that owners and operators will have to submit CAM plans with their permit applications and therefore will not be able to dete rmine if they are eligible for the exemption. The commenters proposed broaden ing the exemption to avoid this presumably unintended circular result . Another commenter proposed that the continuous compliance determinati on method exemption be based on emissions limitations or stan dards in existingCAM RTC (Part III)

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applicable requirements rather than in part 70 perm its. This commenter stated that such a revision would clarify the defin ition and reflect the example lists in the 8/2/96 CAM technical guidance document. Finally, a commenter suggested using either the underlying req uirement or the part 70 permit as a basis for qualifying for the exempti on.

Response: The Agency’s intention behind the exempti on is to relieve the source

owner and the permitting authority of the burden as sociated with establishing new monitoring to satisfy part 64 if d irect measurement of compliance is already required. If an owner or ope rator proposes monitoring with the permit application intended to qualify as a continuous compliance determination method, the Agency believe s that the language of the rule allows sufficient flexibility for the s ource owner and the permitting authority to determine if the monitoring would qualify and, then, if the exemption applies. No further revision to t he rule is necessary.

Letter(s): American Gas Association (VI-D-154); Coa stal Corporation (VI-D-123);

Colorado Association of Commerce and Industry (VI-D -182); Eli Lilly Company (VI-D-124)

Comment b: An automotive industry commenter request ed that the EPA/Automotive

Protocol should be specifically exempted from CAM b ecause it meets the definition of a continuous compliance determination method. According to the commenter, the protocol is used to determine co mpliance, it provides for compliance determination on a continuous basis, and it verifies through testing and other information the derivatio n and implementation of the algorithms used as part of the protocol. The co mmenter also stated that the protocol was developed over a number of ye ars by EPA and the automotive industry to assure consistent compliance determination procedures, and it would be inappropriate to now al low the industry to be subjected to various interpretations of how the pro tocol should be used in

the context of CAM.

Response: The Agency disagrees that the subject pro tocol completely satisfies the

requirements for exempting emission limits that rel y on a continuous compliance determination method according to part 6 4. The exemption provided in part 64 does not apply if the applicabl e compliance method

includes an assumed control device emission reducti on factor that could be affected by the actual operation and maintenance of the control device. The protocol is just such a method for which conti nuous compliance isCAM RTC (Part III)

October 2, 1997 Page 73

determined by calculating emissions on the basis of coating records and an assumed control device efficiency factor based o n an initial performance test. For the purposes of complying w ith part 64, monitoring would apply to the control device, trans fer efficiency, if appropriate, and the capture system, but not to the remaining elements of the coating line.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157, 266, 270, and

273)

Comment c: A coalition of industry groups argued th at the exemption for sources with

continuous compliance determination methods should be broadened to include sources with requirements based on emission factors. This commenter stated that the factors are integral to s uch standards, and applying CAM would have the effect of imposing new compliance obligations on these sources.

Response: The Agency believes that part 64 applies to pollutant-specific emission

units subject to this type of emission limitation a nd compliance method to the extent that control devices are necessary to ac hieve compliance with the limit. As noted above, the purpose of the CAM approach is to monitor

to assure that the control devices, once installed or otherwise employed, are properly operated and maintained so that they d o not deteriorate to the point where the owner or operator fails to rema in in compliance with applicable requirements. Monitoring control device operations on units subject to an emission limitation or standard, rega rdless of the compliance calculation procedure, is consistent with this purp ose.

Letter(s): Clean Air Implementation Project (VI-D-1 53)

Comment d: A commenter requested that CEMS required in State or NSR permits

qualify for this exemption. The commenter stated th at the 1996 part 64 Draft only required CEMS to be used for part 64 pur poses if required by the Act or State/local law and argued that this sho uld be expanded to include permits so that the CEMS can be used to mee t the exemption.

Response: The commenter incorrectly interpreted the rule. Section 64.3(d) indicates

that a continuous emission monitoring system (CEMS) , continuous opacity monitoring system (COMS) or predictive emis sion monitoringCAM RTC (Part III)

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system (PEMS) that is required pursuant to other au thority under the Act or state or local law must be used to satisfy the r equirements of this part. This provision would include any permits issued und er the Act or State and local law. Whether such monitoring qualifies f or the exemption in § 64.2 depends on whether the monitoring is specified as the compliance method for the applicable requirements.

Letter(s): Colorado Association of Commerce and Ind ustry (VI-D-182)

Comment e: One commenter stated that this exemption should be written so as to

exempt subpart C sources that have a continuous com pliance determination method rather than just individual em ission limits with such methods because subpart C applies on a source wide basis.

Response: The final rule does not include subpart C monitoring requirements. No

additional response is necessary.

Letter(s): Colorado Association of Commerce and Ind ustry (VI-D-182)

2.3.2.3: Requests for Clarification

Comment a: A commenter requested clarification of s everal § 64.2(c) issues. First the

commenter wanted to confirm that once it is issued, a part 70 permit which contains a requirement to use CEMS to determi ne compliance with applicable SIP limits (NO

x RACT plan and sulfur-in-fuel limit), then a CAM plan or QIP would not be necessary for these limits . The commenter also

wanted to confirm that a source with limits or stan dards proposed under

sections 111 or 112 of the Act before 1990, but for which its part 70 permit specifies continuous compliance determination metho ds is exempted from part 64. Finally, this commenter wanted to confirm that it would not need a CAM plan or QIP for opacity if it currently has a SIP opacity limit for which it monitors opacity with a COMS. The comment er noted that it understands that it would still need a CAM plan for particulate matter and that the COMS would be a component in the plan.

One commenter expressed concern that part 64 would require monitoring of the VOC content of solvents or coatings. The co mmenter stated that supplier certifications and production recordkeepin g should be sufficientCAM RTC (Part III)

October 2, 1997 Page 75

for that portion of a sources CAM plan along with a presumption that the monitoring of active controls required in the SIP w ould be sufficient.

Response: The commenter is correct that emission li mitations or standards that have

an associated continuous compliance determination m ethod are exempt from part 64, and that the types of limits involved may include applicable SIP limits and pre -1990 NSPS and NESHAP limits. T he commenter is also correct that the use of a CEMS (even if not a continuous compliance determination method) that satisfies the performanc e specifications requirements referenced in the rule will satisfy pa rt 64 without additional documentation (e.g., a CAM plan). The commenter is also correct that use of a COMS is a possible component of the monito ring to provide data for an indicator range appropriate for particulate control performance. The CAM rule would dictate that opacity values that indicate the proper operation of the control device would not necessari ly be the same as other applicable opacity limitations. As noted in responses to comments in section 10, the Agency has deleted the requireme nts associated with a QIP; this possible enforcement response remains as an option for the permitting authority to use as needed.

The commenter is also correct that an emission unit for which opacity is regulated as a surrogate for particulate matter and which is subject to continuous opacity monitoring would also satisfy mo nitoring requirements under the CAM rule under the provisions that requir e the use of CEMS where required by underlying rules.

With respect to the VOC content issues, the exempti on in § 64.2(b) states explicitly that monitoring of VOC content would not be required even if monitoring of the control device is required under part 64. In that case, any existing monitoring could be used in part to ju stify the use of the existing monitoring to satisfy part 64, but no pres umptive acceptability would apply.

Letter(s): Can Manufacturers Institute (VI-D-181); Niagara Mohawk (VI-D-168)

Section 2.3.3: Municipal Utilities Exemption

2.3.3.1: General Comments/Scope of ExemptionCAM RTC (Part III)

October 2, 1997 Page 76

Comment a: A few commenters offered general support for the § 64.2(c)(2) exemption

for small municipal units. A commenter explained t hat it supports EPA's acknowledgment that it is appropriate to exempt emi ssions units that have high potential to emit but small actual emissions.

Response: No additional response is necessary.

Letter(s): American Petroleum Institute (VI-D-146); NESCAUM (VI-D-192);

Metropolitan Council (VI-D-214)

Comment b: One commenter opposed providing an exemp tion that applies only to

electrical utilities. The commenter asserted that b y providing such an exemption EPA is supporting some of the worst pollu ters and restraining competition. The commenter explained that the exem ption is provided to power plants used when electrical use peaks, which often occurs because

of excessive use of air conditioners in hot weather , while the exemption is not available to other sources that are trying to e fficiently manage electrical demand. The commenter concluded by stati ng that significant pollution and global warming are the result of coal -based electricity generation and transmission losses.

Response: The subject municipally-owned units have historically low usage rates,

but, because of their nature, owners or operators c annot accept enforceable restrictions on the operation of these units for any particular year without violating their contractual obligation s. Thus, these units usually have extremely high potential to emit value s in comparison to

actual emissions. Further, the final rule includes a requirement for documentation showing that the unit is exempt from all of the monitoring requirements in 40 CFR part 75, and showing that th e emissions unit is operated only to provide electricity during peaking hours or emergencies. This documentation requirement will ensure that the exemption is properly applied. Based on these considerations, the Agency therefore believes that a limited exemption from the monitoring requir ements in part 64 for these units is appropriate. The commenter does not address the need for monitoring at these units and instead questions the exemption from CAM monitoring based on considerations (e.g., purported energy inefficiency of these units) not pertinent to enhanced monitoring o r compliance

certification.

Letter(s): LaClede Gas Company (VI-D-198)CAM RTC (Part III)

October 2, 1997 Page 77

2.3.3.2: Request Exemption for Similar Units

Comment a: Many commenters argued that other emissi ons units with large potential

to emit and small actual emissions should be exempt ed from CAM requirements. The U.S. Small Business Administratio n submitted for discussion at the September 10, 1996 meeting a prop osal (SBA proposal) to exclude entirely from CAM sources whose actual e missions are less than 50 percent of the major source threshold, wher e the owner/operator can establish that this represents true emissions a veraged over an appropriate operational period such as one year. T he SBA proposal stated that this would eliminate possibly thousands of sources that do not need to be covered by CAM since the reasonable assu rance can be obtained through the facilities' own records. A nu mber of commenters specifically expressed their support for the SBA pr oposal and others stated generally that they were in favor of such an exemption. One commenter stated that any unit that can demonstrate a history of limited usage and an expectation of continued limited usage should also be exempted. A local agency commenter noted that many sources will accept operational restrictions to avoid the CAM re quirements. One commenter supported the addition of an exemption th reshold below which a pollutant-specific emissions unit should not be s ubject to CAM because the costs of complying with CAM would outweigh the environmental benefits of monitoring those units. This commenter specifically supported the SBA approach, and noted that this approach was supported by statements in the 1993 RIA for the EM proposal, 58 FR 54662-54663, and EPA's analysis of part 70 periodic monitoring requi rements in Section II.C.2.(d) of White Paper Number 2, 3/5/96. Anothe r commenter proposed adding a new section the rule to exempt fr om CAM pollutant-specific emissions units that operate wit h actual emissions of less than 20 percent of the major source definition

.

Several commenters stated that the municipal utilit y exemption should be extended to similar units, such as peak shaving uni ts, emergency fire systems, emergency electrical generators and other emergency utility systems (e.g., air, water). Some commenters argued that these units meet the same criteria as back-up municipal utility units. A few commenters supported extension of the municipal uti lity exemption to back-up units not owned by utilities. Natural gas industry commenters supported the extension of the exemption to include all emergency andCAM RTC (Part III)

October 2, 1997 Page 78

back-up units, including emergency back-up and seas onal turbines or reciprocating engines. Other commenters recommende d exempting units that are subject to permit conditions that li mit potential to emit or amount of operation (such as emergency standby equi pment). One commenter stated that these types of units should a t least be subject only to minimal recordkeeping of operating hours or simi lar customary records under subpart C.

Two commenters discussed particular types of units for which they felt exemption was appropriate. A commenter stated that non-road engines with high potential to emit utilized at oil and gas production facilities should be exempted if their owners and operators ca n show that actual emissions from these units are less than 50 percent of the amount required to classify the units as major sources. A nother commenter added that internal combustion engines operating at such levels should at least be exempt from subpart B. One commenter argu ed that oil and natural gas batteries which potentially could be cl assified as major sources should be exempt if they have low actual em issions and do not operate at capacity as a practical matter (i.e. bec ause the amount of product that can be produced is limited by the tank s' underground reservoirs).

Utility industry commenters were concerned that the exemption is too narrow to be of use to the small utility units to w hich it is intended to or should apply. They argued that many small utility units specifically exempted from title IV have very small actual emiss ions, but are not limited to operating during peak power or emergency situations. Moreover, the commenters stated that some of these units may not meet the criteria of average annual emissions of less than 50 percent of the major source threshold. They explained that units in serious no nattainment areas would need average annual emissions of less than 25 tons to qualify. According to the commenters the cost of additional monitoring cannot be justified for these sources. Commenters also noted that these units generally do not have control devices, and therefor e they were also concerned that these sources would have to find way s to monitor emissions directly instead of monitoring control pa rameters.

One of the commenters argued that application of th e 50 percent of major source threshold cap will add nothing to existing t itle V monitoring and recordkeeping requirements, but will ensnarl additi onal municipal units if emissions limits and major source thresholds are ch anged in the futureCAM RTC (Part III)

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pursuant to new regulations (like those applicable to NO

x ). This commenter also stated that the 50 percent threshold is inconsistent with paragraph (c) of subpart C which most municipal pea king units would be able to meet. According to the commenter, where a municipal unit exceeds the CAM 50 percent threshold but not its ma jor source threshold, the unit will essentially be required to complete C AM plan paperwork that is redundant with its title V permit.

A commenter objected to forcing small utility units to demonstrate that the level of a unit's operation is tied to contractual obligations to power supply customers arguing that for many municipal systems, such contracts have been precluded by the anti-competitive actions of l arger, investor-owned utility competitors. The commenter stated that in some cases in Ohio, large investor-owned utilities have attempted to th wart the formation of contracts for the use of municipal peak-shaving uni ts because ensuing power outages and higher utility bills work to the competitive advantage of these larger utilities.

Two commenters recommended broadening the exemption to units of 25 MWe or less. A commenter who argued in favor of ex empting all such publicly owned generating units explained that ther e is no benefit associated with applying CAM to these units which e mit de minimis levels of pollutants, and that a broader exemption would r educe the burden to permitting authorities as well as to these sources. The commenter emphasized the competitive effect of these units on the utility industry which benefits all consumers irrespective of their electric power provider and argued that, therefore, their continued ability to operate is important and has historically been recognized by Congress. The commenter also stated that additional analysis and recordkeeping a nd the potential for permit renegotiation imposes burdens on the communi ties that own these units and may constitute an unfunded mandate.

This commenter also argued that if EPA does not exe mpt units of 25 MWe or less, the actual emissions limits for exempt ed units should be increased from 50 percent to 100 percent of the maj or source threshold, and the restrictions on type of operation should be relaxed so that other than emergency and peaking operation is included. A ccording to this commenter these small units are generally operated for peak or emergency situations, but cannot be restricted to o peration only during

these times since these units must be available to operate for other reasons including testing, and backstanding non-fir m power purchaseCAM RTC (Part III)

October 2, 1997 Page 80

transactions. The commenter stated that sources wo uld be responsible for satisfying the state regulatory authority that actual emissions are below

this level and added that EPA's concern that calcul ations used to estimate

actual emissions are not reliable or accurate could be satisfied by using a threshold only slightly lower than the major source threshold such as 90

percent.

A second commenter argued that an exemption for all simple combustion turbines and units with generators in this capacity range is consistent with the Acid Rain Program, and stated that a requiremen t that emissions, based on a rolling 36-month period, must be less th an 50 percent of the applicable major source threshold will ensure that these units' emissions are not significant. The commenter also stated tha t such an exemption

was included in the 1995 draft and should be reesta blished in the final CAM rule because the narrow exemption in the 1996 d raft is too complex

and would be difficult to administer. The commente r argued that there will be questions under the current version about v arying levels of municipal ownership and what situations qualify as periods of peak electrical demand or emergencies. Finally, accordi ng to this commenter, EPA's statement that its current exemption is appro priate because such units usually have low emissions applies equally to the other small units exempted in the 1995 draft.

Response: EPA disagrees with the concept of using a ctual emissions as the overall

basis for part 64 applicability or as the basis for expanding significantly the municipal utility exemption. First, actual emissio ns can vary with changes in production. More importantly, for units with co ntrol devices, calculations of actual emissions necessarily rely o n assumptions about on-going performance that part 64 is intended to ve rify. Finally, because the types of sources to which commenters referred a re unlikely to meet the control device applicability criterion of the f inal rule, the Agency feels even more strongly that the final rule will not sub ject small units to inappropriate monitoring. The Agency notes, howeve r, that such units will remain subject to the monitoring requirements in part 70, and may have to adopt new or modified monitoring to comply with those requirements, even though part 64 does not apply. T he exemption for small backup municipal utility units is not an exem ption based generally on the theory that monitoring is unnecessary for th ose units with actual emissions that fall below the major source threshol d. Rather, there are additional factors at play. First, contractual obl igations put small municipal backup units in a position where they can not agree to the typeCAM RTC (Part III)

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of binding restrictions that would eliminate them f rom status as a “major source” even though such restrictions would otherwi se be acceptable. Further, municipal units are generally operated by small local governments and thus imposing monitoring requiremen ts raises the same types of concerns reflected in the Regulatory Flexi bility Act and the Unfunded Mandates Reform Act. Finally, EPA believe s there are relatively few units that will qualify for this exe mption. This conclusion was confirmed by the comments of a utility group th at stated that “these small utility units generally do not have active co ntrol devices.” UARG, p. 5. As such these units would not be subject to CAM in the first instance.

When these factors are considered in the context o f historical data showing low actual emissions, EPA believes an exemp tion is justified. Thus, EPA would emphasize that this exemption is ba sed on the unique circumstances surrounding the units involved and th e relatively small

number of such units.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); American

Gas Association (VI-D-154); American Municipal Powe r-Ohio (VI-D-159); American Petroleum Institute (VI-D-146); American P ublic Power Association (VI-D-158 and 264); California Associat ion of Sanitation Agencies (VI-D-206); Chemical Manufacturers Associa tion (VI-D-152); Cinergy Corp. (VI-D-141); Class of '85 Regulatory R esponse Group (VI-D-161); Coastal Corporation (VI-D-123); Colorad o Association of Commerce and Industry (VI-D-182); Columbia Gas Syst em Service Corporation (VI-D-175); County Sanitation Districts of Orange County, California (VI-D-231); Electronic Industries Associ ation (VI-D-137); Eli Lilly Company (VI-D-124); Engine Manufacturers Associatio n (VI-D-117); Enron Operations Corp. (VI-D-235); Exxon Chemical A mericas (VI-D-128); General Electric Company (VI-D-156); Ho uston Lighting & Power Company (VI-D-228); LaClede Gas Company (VI-D -198); Niagara Mohawk (VI-D-168); Ohio Chamber of Commerce, et al (VI-D-160); Pennzoil Company (VI-D-133); Rubber Manufacturers A ssociation (VI-D-149); South Dakota Department of Environment and Natural Resources (VI-D-223); Southwestern Public Service C ompany (VI-D-224); State of Tennessee Department of Environment and Co nservation (VI-D-234); Tennessee Valley Authority (VI-D-162); Texas Natural Resource Conservation Commission (VI-D-189); Total Petroleum, Inc. (VI-D-190); Tri-TAC (VI-D-225); U.S. Small Business Administration (VI-D-239); Utility Air Regulatory Group (VI-D-140)CAM RTC (Part III)

October 2, 1997 Page 82

2.3.3.3: Objects to Documentation Requirements

Comment a: One state agency commenter argued that t he documentation

requirements of the small municipal utility exempti on may cause competitive market problems. The commenter stated that many state agencies may be unable to maintain confidentiality for information submitted to comply with the requirement of documen ting historical and

contractual information which shows that a unit is eligible for the small municipal utility exemption.

Response: The Agency disagrees. Under § 70.4(b)(3) (viii) each permitting authority

is required to demonstrate the legal authority to m aintain information as confidential if entitled to such protection under s ection 114(c) of the Act. Although historical emissions data is not entitled to such protection, certain contractual provisions may be.

Letter(s): Texas Natural Resource Conservation Comm ittee (VI-D-189)

2.3.3.4: Requests for Clarification

Comment a: A commenter asked that the language of t he exemption be changed to

refer to "annual" instead of "annualized" emissions . The commenter

assumed that EPA intended to refer to actual "annua l" emissions and not

the amount that would have been emitted if emission s at the actual rate were "annualized" over a full year of operation.

Response: This edit has been included.

Letter(s): Utility Air Regulatory Group (VI-D-140)

Comment b: One commenter requested that the Agency clarify whether sources can

toggle between major source and non-major source fr om year to year based on the 3 year emissions average. This commen ter argued that forcing these small, seldom used sources to develop a CAM plan for a short time frame would not seem to be in keeping wi th the intent of the proposal.

Response: The Agency intends that an exemption such as the one for municipal

utilities apply for the duration of the permit term . The exemption wouldCAM RTC (Part III)

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be reviewed only upon the pollutant-specific emissi on unit undergoing a significant process modification or upon another si gnificant permit revision as required under part 70.

Letter(s): Cinergy Corp. (VI-D-141)

Section 2.3.4: Other Exemptions

2.3.4.1: General Site/Significance Based Exemptions

Comment a: Some commenters stated that CAM should e xplicitly exempt sources/units

that are exempt from title V regulation. One comme nter explained that sources below the title V applicability threshold s hould not be burdened with CAM monitoring since their emissions are relat ively insignificant, and recommended that EPA specifically state that the CA M rule does not apply to non-major sources which may be required to obtain a title V permit solely because they are subject to a NSPS or NESHAP regulation. As examples of non-major sources subject to pre-199 0 NSPS or NESHAP requirements, the commenter discussed a source with a small boiler burning natural gas (triggering 40 CFR 60, subpart Dc) or a laboratory licensed by the Nuclear Regulatory Commission and u sing radio nuclides for tracing studies (triggering 40 CFR 61, subpart I). The commenter stated that these regulations contain existing moni toring requirements which are sufficient to assess compliance with the applicable emissions limitations or standards and requested that EPA est ablish that all non-major sources are exempt from CAM requirements.

Response: The final rule clearly states that the re quirements of part 64 apply to a

pollutant-specific emissions unit at a major source that is required to obtain a part 70 or 71 permit. No additional rule language is required.

Letter(s): Association of Battery Recyclers (VI-D-1 55); Ohio Chamber of

Commerce, et al (VI-D-160); Pharmaceutical Research and Manufacturers of America (VI-D-217)

Comment b: Several commenters argued that the final rule should have a simple,

bright-line exemption based on potential to emit or actual emissions.

Two commenters stated that EPA could build on the c urrent January 1995 PTE guidance and exempt units with actual emissions less than 50CAM RTC (Part III)

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percent of the major source threshold. Other comme nters noted that such an approach could be used or, alternatively, E PA could exempt units with PTE (considering controls) less than the major source threshold (or some percentage of the major source threshold) whic h would simplify the rule and assure that environmentally insignificant units are not subject to

CAM.

Response: As noted above, the Agency disagrees that the proposed revisions would

either significantly simplify the applicability det ermination or appropriately target significant emissions units with control dev ices. (See also responses to comments in section 2.1.2 (Part III).)

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Electronic

Industries Association (VI-D-137); General Electric Company (VI-D-156); National Environmental Development Association (VI- D-169); The Society of the Plastics Industry, Inc. (VI-D-148)

Comment c: A commenter argued that CAM should not a pply to pollutants for which

the source is not major. For instance, the commente r pointed out that a source may be required to obtain a title V permit b ecause it is major for HAPs. The commenter stated that although CAM would not apply to the HAPs if they were not subject to an emission limit, the source may have

VOC emissions with emission limits. The commenter concluded that CAM should not apply if the VOC emissions are below the major source

threshold.

Response: The 1993 proposed rule contained this typ e of limitation. However, as

explained above, EPA believes that the focus of the rule on the maximum capacity to emit of units without considering the e ffectiveness of a control device is an appropriate screening tool to determin e which units should be monitored under part 64. This reasoning applies wh ether or not the source is “major” considering such controls for eac h pollutant it emits. In addition, as some commenters pointed out in respons e to the proposed rule, the Agency typically does not focus on only t he major pollutants even where applicability of a program is focused solely on whether a source is a major source. For example, under the PSD program, if a new source is “major” for one pollutant, it must obtain a PSD per mit requiring use of control equipment not only for that pollutant but a ll other pollutants that it would emit in amounts that are greater than de mini mis levels. Finally,

EPA believes it would be irrational to continue to focus solely on theCAM RTC (Part III)

October 2, 1997 Page 85

pollutants for which a source is major when the Age ncy is focusing on

units that have installed control devices. For ins tance, a source could be "major" for NO

x with no NO

x control devices (and even no NO

x requirements in an attainment area) but have a unit with the potential to emit 20 tons of particulate matter after considerin g the effectiveness of a control device that has a rated removal efficiency of 99.9 percent. The potential to emit from this particular emission uni t for particulate matter would be less than the major source threshold of 10 0 tons/year; however, the maximum capacity to emit particulate matter wit hout considering the control device would be 20,000 tons/year, which is far greater than the 100 tons/year major source threshold. Small decrea ses in efficiency of

that control device could lead to actual emission i ncreases significantly above the applicable emission limitations or standa rd and the major

source threshold. Thus, while the source in this example may not have the potential to emit particulate matter (taking in to account the control device) in amounts sufficient for the source to be classified as a major source for particulate matter, the pollutant-specif ic emissions unit for particulate matter, not for NO

x , in this example is clearly one which the Agency believes should be subject to part 64.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157)

2.3.4.2: Exemption for SIP Rules

Comment a: A number of commenters argued that EPA s hould exempt various SIP

rules from part 64. One commenter stated generally that EPA should exempt from part 64 all pollutant-specific emission s units currently subject to monitoring required by a federal rule or a state rule approved as part of a SIP since existing monitoring required for these units should satisfy CAM. Several commenters argued specifically that S IP rules approved after 1990 should be exempted since EPA has oversig ht for the SIP process and these requirements should reflect EPA's monitoring philosophy. The commenters stated that the reasons for exempting federal limitations or standards proposed after Nov ember 15, 1990 apply

to these rules as well. The commenters added that if EPA identifies negative impacts on SIP emission reduction credits because a post 1990 SIP rule has been exempted, then the permitting aut hority should be allowed to conduct a CAM review of that particular rule in support of reduction credits. Another commenter specified tha t SIP provisions applicable to sources in attainment areas should be exempt from CAMCAM RTC (Part III)

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because in attainment areas, State regulatory progr ams are already meeting air quality goals.

Response: The Agency agrees that monitoring in many SIP rules, including some

post-1990 SIP rules, can be used to satisfy part 64 requirements and acknowledges that such requirements may be used to satisfy the documentation requirements of the rule. On the oth er hand, the Agency does not agree that all existing monitoring require ments, whether prepared before or after 1990, completely satisfy t he part 64 criteria and believes that a review of such requirements on a ca se-by-case basis is appropriate. While certainly subject to some EPA o versight, State implementation plans and other rules developed outs ide the MACT and NSPS programs have not been governed by monitoring criteria of the type

described in the CAM rule.

Letter(s): Coastal Corporation (VI-D-123); Eli Lill y Company (VI-D-124); General

Electric Company (VI-D-156); Kennecott Corporation (VI-D-119); Ohio Chamber of Commerce, et al (VI-D-160); Pharmaceutic al Research and Manufacturers of America (VI-D-217); Texas Natural Resource Conservation Committee (VI-D-189); Texas Title V Pl anning Committee (VI-D-188); Utility Air Regulatory Group (VI-D-140) ; Virginia Power (VI-D-226)

2.3.4.3: Exemption for NSR Sources

Comment a: Two commenters requested that EPA exempt state minor NSR sources

from CAM or provide flexible options to assure NSR monitoring provides for a reasonable assurance of compliance. They arg ued that state minor NSR programs already include appropriate requiremen ts for monitoring to assure compliance and that if necessary, flexible o ptions like a programmatic approach or guidance documents could p rovide a reasonable assurance of compliance. Another commen ter added that the proposed revisions to part 70 recognize that st ate minor NSR permit terms are less environmentally significant and ther efore CAM should not apply. One commenter suggested revising the defini tion of emission limitation or standard to specifically exclude mino r NSR requirements and stated that EPA may not have the legal authority to include CAM for minor NSR requirements. A commenter explained that the s tatutory authorization for compliance monitoring covers titl e V major source operating permits and not NSR or minor sources and proposed adding anCAM RTC (Part III)

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exemption for emission limitations developed under state minor NSR programs. A commenter who also supported exemption of minor NSR requested clarification on applicability for synthe tic minors. Several

commenters stated that at a minimum, EPA should exe mpt post November 15, 1990 minor NSR requirements.

A number of commenters asked that EPA clarify that the major NSR program (Prevention of Significant Deterioration an d Non-attainment permits) satisfies CAM. One commenter reasoned tha t since EPA has oversight authority for the major NSR program and h as already reviewed all permits under this program, these permits shoul d reflect EPA's monitoring philosophy. Other commenters argued tha t an exemption should at least apply to major NSR permits approved after November 15,

1990.

One commenter stated that any source that has been through new source review in the last ten years should be exempt.

Response: As noted above, the Agency does not belie ve that all existing monitoring

requirements meet part 64 criteria including those developed under major NSR, minor NSR, or other programs. That any such p ermit provision was completed after November 1990 does not insure that monitoring sufficient to conform with part 64 was applied. The guidelines for determining appropriate monitoring to be applied in reviewing s uch rules has not included the level of detail specified in the CAM r ule nor, until recently, for periodic monitoring as outlined for part 70. To th e extent that emissions units at major sources are subject to title V permi tting requirements, the Agency believes it is appropriate to require a revi ew and, if necessary, improvement of existing monitoring to comply with p art 64 requirements rather than a broad, poorly supported exemption.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Coalition for

Clean Air Implementation (VI-D-164); Coastal Corpor ation (VI-D-123); Electronic Industries Association (VI-D-137); Gener al Electric Company (VI-D-156); Kennecott Corporation (VI-D-119); Natio nal Environmental Development Association (VI-D-169); NorAm Gas Trans mission Company (VI-D-142); Ohio Chamber of Commerce, et al (VI-D-1 60); Pennzoil Company (VI-D-133); PPG Industries, Inc. (VI-D-136) ; Texas Natural Resource Conservation Committee (VI-D-189); The Soc iety of the Plastics Industry, Inc. (VI-D-148); Utility Air Regulatory G roup (VI-D-140); Virginia Power (VI-D-226)CAM RTC (Part III)

October 2, 1997 Page 88

2.3.4.4 Exemptions for Insignificant Activities

Comment a: Commenters argued that at a minimum, EPA should exclude from CAM

insignificant or trivial sources. One commenter st ated generally that units on a state's insignificant activities list should b e exempt. Another commenter suggested that a 10 ton per year cutoff w ould be consistent with the "small source" exclusion concept of White Paper I. A few

commenters noted that the costs associated with mon itoring insignificant or trivial sources far outweigh any benefits. Two of the commenters also stated that the need for this exemption appears esp ecially necessary because § 64.9(c)(2)(iii) of the 1996 part 64 Draft appeared to require a second determination that monitoring of insignifica nt activities is not necessary even after the permitting authority has a lready identified certain classes of activities to be insignificant. A comme nter specified that the language stating that "for less significant emissio n units, no monitoring may be necessary" is not sufficient. In particular , the commenter recommended exempting non-major equipment and non-m ajor portable equipment, including small ICEs. Other commenters noted that EPA should clarify what is intended and specifically ex empt insignificant sources that are exempt under applicable title V pr ograms so they are not brought back into title V.

A few commenters requested that insignificant activities (as defined in state part 70 permit programs) should be expressly exempted from the CAM rule rather than providing states with the auth ority to impose CAM requirements on these activities. They argued tha t EPA's July 10, 1995 White Paper on Streamlined Development of part 70 P ermit Applications indicated that EPA did not intend insignificant act ivities to be subject to the full range of part 70 permit requirements, includin g the associated CAM requirements. Another commenter cited a similar st atement in Section II.C.2.(d) of the March 5, 1996 White Paper Number 2.

Response: As noted above, EPA disagrees with the co ncept of using actual

emissions as the overall basis for part 64 applicab ility. To the extent that major sources are required to obtain title V permit s, the Agency believes that pollutant-specific emission units with control devices at such major sources and which fall above the size cut-off speci fied in the rule should be subject to monitoring in order to verify complia nce with applicable emission limitations or standards. Because the typ es of emissions unitsCAM RTC (Part III)

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to which commenters refer are unlikely to meet the control device applicability criterion of the final rule, the Agen cy feels even more strongly that the final rule will not subject small units to inappropriate monitoring.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Association

of Battery Recyclers (VI-D-155); California Associa tion of Sanitation Agencies (VI-D-206); Chemical Manufacturers Associa tion (VI-D-152); County Sanitation Districts of Los Angeles County ( VI-D-232); Electronic Industries Association (VI-D37); Eli Lilly Company (VI-D-124); General Electric Company (VI-D-156); Ohio Chamber of Commer ce, et al (VI-D-160); Pharmaceutical Research and Manufacture rs of America (VI-D-217); Southern Company Services (VI-D-171); T he Society of the Plastics Industry, Inc. (VI-D-148); Tri-TAC (VI-D-2 25)

2.3.4.5: SBA Proposal

Comment a: One commenter proposed that states be permitted to approve the

emissions estimate methodology and recordkeeping of sources with actual emissions of 50-90 percent of the major sour ce threshold so that such sources could be permanently exempted from CAM . The

commenter noted that this would allow states to con serve resources. Another commenter expressed its support for such an exemption.

Response: See responses to comments in section 2.1. 2 and 2.3.4.4 (Part III).

Letter(s): The Society of the Plastics Industry, In c. (VI-D-148); US Small Business

Administration (VI-D-239)

2.3.4.6 Miscellaneous Requests for Exemption

Comment a: Many commenters argued that EPA should e xempt other specific

categories of applicable requirements that do not n eed CAM. One commenter recommended exempting applicable requirem ents derived from the accidental release provisions of section 1 12(r) of the Clean Air Act, requirements applicable to equipment that is p ermitted for operations less than 500 hours per year, and State exemption a nd registration requirements. Other commenters also supported exem pting state exemption and registration requirements and two com menters suggestedCAM RTC (Part III)

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that the definition of emission limitation or stand ard specifically exclude these types of requirements.

A few commenters argued that EPA should establish t hat emissions units covered by post-November 15, 1990 MACT, RACT, and C TG regulations are exempt from CAM because these regulations clear ly contain continuous compliance requirements. They stated th at the CAM rulemaking should not be used to "fix" monitoring s hortcomings in existing regulations such as MACT, RACT, and CTG regulations or to impose duplicative and unnecessary additional monitoring r equirements on sources subject to these rules.

Two commenters argued that all NESHAP and NSPS requ irements should be exempt unless EPA specifically determines that the existing monitoring in such standards is deficient. They re commended that where

deficiencies are found, EPA should amend the underl ying standard. Other commenters specified exempting specific subpa rts such as part 60 subpart MM, and the requirements for phosphogypsum stacks under part 61, subpart R (incorporated comments on this issue made in response to the EM proposal.

One commenter argued that EPA should treat post-199 0 compliance monitoring and certification SIP guidance and reaso nably related parameter monitoring as equivalent to federal rules proposed after 1990. The commenter as particularly concerned with recent Capture Efficiency

resolutions. Response: The Agency disagrees that post-November 15, 1990 RACT and CTG

regulations should be exempt from CAM because these regulations do not necessarily contain continuous compliance monitorin g requirements. The same applies to pre-November 1990 NSPS and NESH AP rules.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Can

Manufacturers Institute (VI-D-181); Chemical Manufa cturers Association (VI-D-152); Electronic Industries Association (VI-D -137); General Electric Company (VI-D-156); Ohio Chamber of Commerce, et al (VI-D-160);

Pharmaceutical Research and Manufacturers of Americ a (VI-D-217); The Fertilizer Institute (VI-D-145)

Comment b: A state agency suggested that major unit s that can meet CAM data

collection requirements with ordinary records of pr ocess hours ofCAM RTC (Part III)

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operation or other operational data should be exemp t from CAM monitoring requirements.

One commenter argued that generic state requirement s, such as generic process weight or opacity standards should be exemp t. The commenter was particularly concerned about generic opacity st andards because EPA's draft rule and preamble suggest that opacity should be considered a surrogate for PM-10 in all cases and because it i s unclear how a source could be a major source for opacity when there is n o major source threshold for opacity. Thus, according to this com menter, the rule should at least provide that a generic opacity SIP limit s hould not be subject to CAM. The commenter added that this exemption is wa rranted in particular because such limits are focused on avoid ing nuisances, not assuring attainment of the NAAQS.

One commenter recommended exempting requirements in title V general permits which EPA already should have reviewed to d etermine CAM acceptability.

A commenter argued that State-only requirements tha t are not rule driven (such as requirements to conduct testing for emissi on inventory purposes) should be explicitly exempt.

Commenters urged EPA to exempt certain types of emi ssion limitations or

standards. A commenter stated that standards that consist solely of recordkeeping and reporting requirements should be exempt from CAM. Another commenter argued that non-numeric applicabl e requirements, such as work practice standards, should be exempt. Another commenter agreed on the grounds that no form of monitoring is practical for standards such as rules covering asbestos managemen t and removal, petroleum sources, fugitive dust, and degreasing op erations. Finally, a commenter argued that nothing is gained by applying CAM to design requirements or inspection schedules that are alrea dy enforceable as part of the standard and that case-by-case determination that CAM is not necessary should not be required.

A commenter supported exemptions for fugitive VOC L DAR programs, cases where regulations specifically exempt certain control devices from monitoring (such as boilers and process heaters of greater than 44 MW or situations where a vent stream is introduced as pri mary fuel), and units permitted for emission of 1 ton per year or less.CAM RTC (Part III)

October 2, 1997 Page 92

One commenter recommended that EPA clarify that the risk management plan is not subject to CAM requirements because it is not an emission

standard.

Response: The final CAM rule specifically applies t o pollutant-specific emission units

that use control devices to achieve the applicable emission limitation or standard. The types of emission limits described b y the commenters are unlikely to be associated with emissions units affe cted by the rule. If units with control devices are subject to such limi ts, then the form of the emission limit is immaterial to the purpose of part 64 which is to provide a reasonable assurance of compliance by documenting t hat the control device is operated and maintained properly.

Letter(s): ASARCO Incorporated (VI-D-187); Eli Lill y Company (VI-D-124); Exxon

Chemical Americas (VI-D-128); General Electric Comp any (VI-D-156); Louisiana Mid-Continent Oil and Gas Association (VI -D-184); National Environmental Development Association (VI-D-169); S tate of Tennessee Department of Environment and Conservation (VI-D-23 4); Texas Chemical Council (VI-D-236)

Comment c: A local permitting authority argued that established emission factors

should be exempt from CAM. The commenter specified emission factors

used for emissions determinations, such as those fr om AP-42 and added that the exemption should include coating materials containing VOC compounds whose content is specified by the manufac turer. According to the commenter, this exemption is appropriate bec ause the applicable rule will establish appropriate initial compliance testing methods, and MSDS or equivalent manufacturer information should ensure continued compliance with emission standards.

Response: See response to Comment c in section 2.3. 2.2 (Part III).

Letter(s): South Coast Air Quality Management Distr ict (VI-D-233)

Comment d: One commenter stated that CAM should not apply to emissions units in

remote locations with little or no residential popu lation. The commenter was particularly concerned with emissions units at oil and gas productionCAM RTC (Part III)

October 2, 1997 Page 93

facilities which are remote according to documentat ion submitted to the permitting authority.

Response: The Agency believes monitoring decisions should be made on the same

basis and should be focused on determining complian ce with applicable

emission limitations or standards. If the commente r is concerned with the stringency of a particular emission standard, that concern should be raised in regard to the standard and not as grounds for making exceptions to general monitoring requirements.

Letter(s): Texaco Environment Health and Safety (VI -D-199)

Comment e: A commenter recommended exempting captur e equipment used to vent

emissions from a source to a control device used to control nuisance air pollutants, such as hydrogen sulfide, that are not regulated under part 64. The commenter explained that odor control devices do not remove federally regulated criteria or hazardous air pollu tants.

Response: The Agency disagrees that capture systems be exempt from monitoring

under the CAM rule if there is an applicable emissi on limitation or standard to control a regulated air pollutant. If a pollutant is subject to a state-only requirement related to odor or nuisance concerns, that state-only requirement is not an "emission limitati on or standard" as defined in part 64.

Letter(s): County Sanitation Districts of Orange Co unty, California (VI-D-231)

Comment f: A few commenters argued that research an d development (R&D) facilities

and operations should be included in the list of ex emptions in the rule. One commenter stated that applying CAM to these fac ilities would be very difficult because of frequent operational changes a nd would provide little benefit due to the generally low, variable level of emissions at these units. Pharmaceutical industry commenters explained that t hey depend on research and development to support existing produc ts and to produce new and better pharmaceuticals. They argued that R &D facilities are inherently low-emitters and account for only a smal l fraction of the regulated air pollutants emitted by the pharmaceuti cal industry and that, therefore, the resulting costs, administrative burd ens, and delays for R&D facilities to comply with CAM would not be justifie d. One of theCAM RTC (Part III)

October 2, 1997 Page 94

commenters concluded that subjecting R&D facilities to CAM would result in adverse economic impact on the pharmaceutical in dustry and the U.S.

economy.

Response: The Agency believes that the commenters c oncerns about research and

development facilities being adversely affected by the CAM rule are generally unjustified. For such a facility to be s ubject to the CAM rule, the facility must be a major source and subject to an applicable emission limit, the precontrol potential to emit for the uni t in question at the facility must be greater than the major source threshold, an d the emissions must be routed to a control device required to reduce em issions to comply with an applicable emission limitation or standard. The Agency believes that few, if any, such situations will exist for researc h and development facilities. If such situations do exist, the Agenc y believes that monitoring of the control device as defined by the CAM rule wo uld be appropriate.

Letter(s): Bristol-Myers Squibb Company (VI-D-204); General Electric Company

(VI-D-156); Merck & Co., Inc. (VI-D-212); National Environmental Development Association (VI-D-169); NYCOMED, Inc. ( VI-D-216); Ohio Chamber of Commerce, et al (VI-D-160); Pfizer, Inc. (VI-D-218);

Pharmaceutical Research and Manufacturers of Americ a (VI-D-217); Wyeth Ayerst (VI-D-213)

Comment g: One commenter stated that EPA should exe mpt boilers from CAM so that

it does not duplicate the effort currently being un dertaken to develop the boiler MACT rule by the year 2000. This commenter suggested that if CAM is to cover boilers good and consistent mainten ance practices should be used to document and certify compliance f or wood-fired boilers instead of "indicator ranges" and argued that this approach would be consistent with the subpart C approach for units wi thout existing monitoring. According to the commenter, the availa ble parameters for wood-fired boilers vary so much that any indicator range will be so broad as to be meaningless.

Response: The Agency believes that the commenters c oncerns about the

applicability of the CAM rule are unfounded on two points. First, as noted above, the Agency disagrees that implementation of part 64, if applicable, or other existing monitoring requirements (e.g., pa rt 70) should be delayed until new regulations apply. Owners of emissions u nits with existing emissions limitations or standards are subject to c ompliance certification requirements for those limitations or standards. S econd, the CAM ruleCAM RTC (Part III)

October 2, 1997 Page 95

applies to pollutant-specific emission units that u se control devices to comply with applicable limitations. Part 64 is int ended to define minimum monitoring requirements for evaluating the operatio n of the control device. The variability of the operational parameters of a wood-fired boiler would be secondary to monitoring of the control device.

Letter(s): American Furniture Manufacturers Associa tion (VI-D-203)

Comment h: A commenter argued that EPA should exemp t natural gas-fueled engines

below a certain size or allow such engines to meet less strenuous requirements to satisfy CAM. The commenter propose d that an exemption for engines under 50 hp, if subpart B app licability provisions are not modified to reflect a source's actual yearl y operating hours, would be appropriate because there are many such engines which operate only seasonally, such engines are not a significant sour ce of air pollutants, and CAM already provides a similar exemption for munici pal electrical utilities. In the alternative, the commenter provided a list of reduced requirements which such engines would have to meet to satisfy CA M.

Response: As noted earlier, part 64 applicability r equires the use of a control device

which the particular units described by the comment er are unlikely to have. It is unlikely that part 64 would apply to s uch units; however, part 70 monitoring requirements apply, as necessary.

Letter(s): LaClede Gas Company (VI-D-198)

Section 2.4: Miscellaneous Applicability Issues

Comment a: A commenter requested that EPA confirm t hat the applicability provisions

of the rule, including exemptions, are self-impleme nting. This commenter noted that sources should not have to identify, in a CAM plan or permit application, pollutant-specific emissions units to which CAM does not apply since the discussion accompanying the 1996 pa rt 64 Draft recognized that unit by unit negative declarations could be highly

burdensome.

Response: The Agency agrees and part 64 does not re quire that owners or operators

justify in a permit application why part 64 is not applicable or that owners or operators apply for exemptions. However, the Ag ency notes that theCAM RTC (Part III)

October 2, 1997 Page 96

permitting authority can request further explanatio n as to how a source owner or operator determined that part 64 did or di d not apply for any pollutant-specific emissions unit for which there m ay be an issue about applicability. In addition, an owner or operator t hat wishes to take advantage of the exemption for certain municipally- owned utility units will have to provide the documentation required to satis fy that exemption.

Letter(s): Chemical Manufacturers Association (VI-D -152); National Environmental

Development Association (VI-D-169)

Comment b: One commenter recommended that the rule list which requirements are

specifically included, rather than requirements tha t are specifically excluded, in order to narrow applicability to truly significant concerns.

The commenter stated that as drafted the rule will require millions of case by case determinations of appropriate monitoring fo r title V facilities. Although the commenter argued that a programmatic a pproach would be the most appropriate approach, the commenter sugges ted narrowing the rule in this way as an alternative. Other commente rs stated that this approach would clarify certain concerns such as whe ther hydrogen sulfide is exempt. These commenters stated that this pollu tant should not be covered, because it is not a federal regulated poll utant under title III or section 112(r).

Response: The Agency believes that the applicabilit y requirements in part 64

adequately narrow the domain of pollutant-specific emission units so as to avoid over burdening source owners and permitting a uthorities with applicability determinations. The Agency also disa grees with the commenters on the universe of units potentially sub ject to part 64. As noted earlier, the Agency estimates that about 27,0 00 pollutant-specific emission units will be incrementally affected by pa rt 64, not the millions that the commenter suggests. With respect to pollu tants that are not federally regulated air pollutants, the rule does n ot apply to State-only requirements, but rather only to emission limitatio ns or standards that qualify as applicable requirements, as defined by p art 70.

Letter(s): California Association of Sanitation Age ncies (VI-D-206); County

Sanitation Districts of Orange County, California ( VI-D-231); General Electric Company (VI-D-156); Tri-TAC (VI-D-225)CAM RTC (Part III)

October 2, 1997 Page 97

Comment c: Two commenters argued that the rule shou ld allow for States to

implement the exemption provisions by rule. One co mmenter stated generally that permitting authorities should be abl e to use the SIP process to classify other applicable requirements or units as exempt. Another commenter expressed concern that, as drafted, the r ule only allowed states to exempt certain rules from CAM through cas e by case decision making, which would waste resources relative to ach ieving the same result through a general rule. The commenter added that states should have the ability to revise existing SIP rules to ac hieve the same result.

Response: The Agency does not agree that states tha t choose to use a programmatic

approach to determining monitoring requirements sho uld be allowed to apply exemption criteria different than apply gener ally in part 64. As noted above, the monitoring criteria defined in par t 64 are intended as basic to a program of monitoring to ascertain and c ertify compliance with applicable emission limitations and standards. All owing states to apply additional exemptions beyond those in part 64 would result in unequal and insufficient application of monitoring. Letter(s): Electronic Industries Association (VI-D- 137); General Electric Company

(VI-D-156)

Comment d: One commenter agreed with distinguishing between control device units

and uncontrolled units but believed that the subpar t C requirements must

be narrowed to make the distinction work as intende d. The commenter suggested that the subpart C requirements should be focused on existing monitoring or recordkeeping if no existing monitori ng exists.

Response: Subpart C has been deleted from the final rule and no further response is

necessary.

Letter(s): Rubber Manufacturers Association (VI-D-1 49)

Comment e: A commenter recommended that CAM not app ly to fugitive emission

points unless the state determines that emissions a re significant. For instance, the commenter pointed out that many sourc es in the plastics industry may be subject to VOC RACT requirements th at require an overall percent reduction for the entire facility a nd that monitoring each individual fugitive emission point to assure compli ance with this requirement would be extraordinarily difficult and burdensome.CAM RTC (Part III)

October 2, 1997 Page 98

Response: The CAM rule applies to pollutant-specifi c emissions units with control

devices. To the extent that fugitive emissions are routed to a control device in order to comply with an applicable emissi on limitation or standard, part 64 may or may not apply.

Letter(s): The Society of the Plastics Industry, In c. (VI-D-148)

Comment f: One commenter argued that given the wide use of flares as a control

device, EPA should specifically address CAM for fla res. The commenter stated that flares cannot truly be monitored but se em to fit into the definition of a control device and suggested that E PA exclude flares from subpart B applicability.

Response: The Agency agrees that for certain types of existing monitoring, the

justification required by part 64 can presumptively rely on that monitoring because the Agency has already determined that type of monitoring to be "enhanced." This includes monitoring requirements for flares established in 40 CFR 60.18 (see § 64.4(b)(5) and Section II.D. of the preamble to the final rule).

Letter(s): The Society of the Plastics Industry, In c. (VI-D-148)

Comment g: A commenter stated generally that the ru le should concentrate on

technical feasibility and reasonable cost to genera te standards used to make applicability determinations.

Response: The Agency disagrees that monitoring feas ibility or cost should be

considered in determining whether a specific pollut ant-specific emissions unit should be subject to the rule.

Letter(s): Wisconsin Electric Power Company (VI-D-1 30)

Comment h: One commenter stated that the types of d ata that satisfy part 70 for permit

applications should be sufficient for CAM. For exa mple, the commenter reasoned that unnecessary regulatory burdens would be minimized by providing that detailed emissions information is no t needed except where

emissions are near a critical threshold level.CAM RTC (Part III)

October 2, 1997 Page 99

Response: The Agency agrees that the level of infor mation about emissions from an

emissions unit provided pursuant to § 70.5(c) shoul d be sufficient to assess whether an owner or operator has properly pr oposed part 64 monitoring for all pollutant-specific emissions uni t subject to part 64. In accordance with part 70, owners or operators must s ubmit information on both emissions and control equipment on an emission s unit basis. If there is a concern about a particular pollutant-spe cific emissions unit for which an owner or operator indicates in an applicat ion that part 64 is not applicable, the permitting authority retains the au thority under part 70 to request additional information.

Letter(s): Dow Chemical Company (VI-D-120)

Comment i: A commenter argued that the process of d etermining CAM plan

applicability will burden the title V permit applic ation and approval process. The commenter noted that applicants must: (1) divi de a facility into "emissions units" based on the vague § 70.2 definit ion which could be as problematic as the proper definition of "source" ha s been in the past; (2) consider each applicable requirement for each emiss ions unit on a pollutant-by-pollutant basis (the commenter noted t hat Dow Chemical Co. has stated that one site contains 14,000 unit/requi rement/pollutant combinations to consider); (3) consider whether eac h combination is subject to subpart B or C, based on the potentially difficult calculation of

"uncontrolled emissions." The commenter added that permitting authorities will then have to review the applicabil ity determinations in each permit application and stated that applicability de terminations will therefore consume the resources of all parties invo lved in the permitting

process.

Response: The Agency disagrees that the CAM rule re quires significantly more

applicability determinations than already required under part 70. For example, the monitoring requirements under part 70 require identification of emissions units and associated applicable requir ements.

Letter(s): Texas Title V Planning Committee (VI-D- 188)

Comment j: Some commenters requested clarification of how the rule would apply to

certain devices or equipment. One commenter was co ncerned withCAM RTC (Part III)

October 2, 1997 Page 100

applicability for internal combustion engines. The commenter stated that the applicability section is vague and ambiguous bu t that it appears that sources must be subject to an emission limitation o r standard that is an applicable requirement as defined in part 70. Ther efore, the commenter concluded that for IC engines, there must be an app licable SIP limit that applies since IC engines are not covered by federal rules. Another commenter questioned how low NO

x heaters would be treated by the rule and whether they would be subject to subpart B or C

.

Response: The final rule explicitly limits applicab ility to emission limitations or

standards that are applicable requirements under pa rt 70. The commenter is correct that a SIP limitation is an ap plicable requirement as defined by part 70. As to whether part 64 would th en apply depends on whether the subject emissions unit (e.g., an IC eng ine) uses a control

device to achieve that emission limit. Low NO

x burner technology and certain other types of combustion control measures are not included in the

definition of "control device" in the final rule.

Letter(s): Engine Manufacturers Association (VI-D-1 17); National Environmental

Development Association (VI-D-169)CAM RTC (Part III)

October 2, 1997 Page 101

Section 3: Implementation

Section 3.1: Timing of Implementation

3.1.1: Requiring Permit Reopenings or Revisions

Comment a: Many state and industry commenters argue d that CAM plans should be

incorporated into Title V operating permits only at the time of permit issuance or permit renewal (i.e., EPA should not re quire permit reopenings or revisions to add CAM). State comment ers asked that states be given discretion on the issue of reopenin g permits, and noted that states are permitted to use such discretion wh en sources add new units. One state requested permits only be reopene d for those units whose actual emissions exceed the major source thre sholds. An association of state and local authorities agreed t hat CAM plans will be applicable requirements and are therefore subject t o inclusion in Title V permits, but asked that EPA clarify that the effect iveness of CAM plans is not dependent on those plans being incorporated int o permits immediately.

Several state commenters stated that CAM plans shou ld not be incorporated into complete permit applications or p ermits issued prior to CAM's effective date until permit renewal (or if a modification is requested)

after the CAM effective date. One of the commenter s specified that CAM and/or monitoring plans should be submitted within one year prior to permit renewal, or if a permit modification is requ ested. Another added that the implementation of CAM will require the use of substantial resources, and the rule should therefore provide st ate and local agencies with maximum flexibility to adjust their workloads and implementation

schedule to best make use of available resources. One agency argued that because applicable EPA guidance may not be dev eloped in a timely fashion, EPA should not press for the reopening of permits for the sole purpose of adding CAM requirements or revising thos e that do not conform to the developing guidance during the three year initial implementation of Title V. The commenter suggested that CAM requirements that conform to the guidance should be included in the first renewal of the Title V permit.

Industry commenters also asserted that if the CAM r ule has not been promulgated prior to a source's permit application due date, CAM should not be incorporated into the permit until the time of permit renewal.CAM RTC (Part III)

October 2, 1997 Page 102

Commenters supported their argument by pointing to the expense that would be associated the reopening permits, delays i n the permit revision process resulting from incorporation of CAM at the time of permit revision and harm to sources that need to make changes quick ly to respond to marketplace conditions.

Another commenter cited the desire to avoid permit opening and public hearing during the first five year permit cycle as the basis for exempting sources whose permit application has already been s ubmitted when the final rule is promulgated. Another commenter agree d that CAM implementation should be delayed until permit renew al so that pending permit applications do not have to be revised, and recommended further that § 64.3(a)(1)(i)(C) should be deleted.

A commenter supported the timing options for Subpar t C implementation presented in the 8/2/96 CAM preamble as minimizing the need to reopen permits, especially during the initial issuance.

Response: In the majority of instances, the Agency agrees that part 64 should not

apply before the permit renewal process is initiate d and has provided rule language to that effect. However, in cases where p ermit applications which include large pollutant-specific emissions un its -- defined as pollutant-specific emissions units with the potenti al to emit a regulated air pollutant in an amount equal to or greater than 100 percent of the amount required for a source to be classified as a major s ource -- have not yet been submitted to or been determined complete by pe rmitting authorities, owners or operators will be required to address par t 64. In addition, where a significant permit revision affects a large pollutant-specific emissions unit, the owner or operator will be requi red to address part 64 requirements for that specific large pollutant-spec ific emissions unit.

Some commenters suggested that the rule establish a date, i.e., one year before permit renewal, for submission of CAM plans. The Agency does not believe such a schedule is necessary because th e part 70 process requires permit renewal applications -- which will address part 64 requirements -- to be submitted between six and eig hteen months prior to permit term’s expiration date.

Letter(s): American Petroleum Institute (VI-D-146); Arizona Electric Power

Cooperative, Inc. (VI-D-176); Missouri Department o f Natural ResourcesCAM RTC (Part III)

October 2, 1997 Page 103

(VI-D-260); National Environmental Development Asso ciation (VI-D-169); Occidental Chemical Corporation (VI-D-166); Ohio EP A, Division of Air Pollution Control (VI-D-180); Pennsylvania Departme nt of Environmental Protection (VI-D-174); Pharmaceutical Research and Manufacturers of America (VI-D-217); STAPPA/ALAPCO (VI-D-179); State of Illinois EPA (VI-D-183); State of Tennessee Department of Enviro nment and Conservation (VI-D-234); South Carolina Electric an d Gas Company (VI-D-116); Wellman, Inc. (VI-D-237)

Comment b: Some commenters stated that if implement ation is to occur prior to permit

renewal, EPA must avoid implementing CAM through pe rmit revisions that would frustrate the effort to streamline permit rev isions for less significant changes at a facility. Commenters noted that EPA ha s expended considerable effort under part 70 to develop stream lined permit revision procedures (i.e. the "notice and go" procedures) wh ich would be frustrated if a source had to propose CAM for any permit revis ion. A commenter recommended that the rule only require submittal of a CAM plan with a source-initiated significant permit modification. Another commenter recommended requiring sources to submit CAM informa tion upon "any physical modification," instead of "any modificatio n." The commenter

stated that this would limit the extent of CAM subm ittal to those processes being physically altered, and would not require new CAM for such changes as an increase in flow at a POTW.

Response: As mentioned above, the Agency agrees tha t CAM implementation need

only occur before permit renewal for those large po llutant-specific emissions units involved with significant permit re vision applications. This approach will not interfere with streamlined permit revision procedures (such as "notice and go" procedures) that may exist following revisions to part 70 being considered by EPA.

Letter(s): County Sanitation Districts of Los Angel es County (VI-D-232); Electronic

Industries Association (VI-D-137); General Electric Company (VI-D-156); R.R. Donnelley & Sons Company (VI-D-221)

3.1.2: Time Needed for Implementation Comment a: Many commenters argued that CAM should o nly be implemented (or at

least incorporated into permits) at permit renewal because this approach is the only way to achieve accurate CAM plans and a void overwhelmingCAM RTC (Part III)

October 2, 1997 Page 104

the Title V process. Two of the commenters stated that substantial delays in the Title V permitting program would resu lt from the implementation schedule in the 1996 draft part 64, which would conflict with section 502(b)(6) which calls for a streamline d and expeditious permit application and review process. Other commenters a dded that it is necessary to allow time for permitting authorities to make the necessary changes to their part 70 programs and to adopt CAM. The commenters stated that the need for changes to the Part 70 pro grams is even greater because EPA has not provided guidance on how CAM pl ans within an operating permit should be modified, and current pr ocedures are inadequate.

Commenters who supported a longer implementation sc hedule stated that most significant sources already have some existing monitoring that will apply in the interim and that § 64.3(a)(1)(ii)(C) s hould be deleted. Other commenters added that the current compliance-relate d provisions of Title V will still apply in the interim. A state permitt ing authority supported initial implementation of CAM requirements, includi ng the development of CAM plans, through EPA authority and authority dele gated to permitting authorities to be followed by later incorporation o f CAM requirements into operating permits at permit renewal. The commenter explained that such an approach would prevent pressure to issue permits prior to CAM promulgation and the need to reopen permits to inco rporate CAM.

Other commenters stated that delayed implementation until permit renewal would ensure that all sources get treated e qually by implementing CAM on the same general schedule. One of these com menters argued that the problems of implementation 180 days after rule promulgation for those sources without permits or completed permit a pplications are compounded by varying state schedules and requireme nts relating to Title V permit applications. For example, the commenter pointed out that in Texas Title V permits are unlikely to be issued pri or to the CAM promulgation date which disadvantages sources locat ed there by forcing them to develop CAM plans in the 180 days after rul e promulgation.

Another commenter with similar concerns added that in some states, under the current implementation schedule, sources would have to submit CAM plans at the end of the application review proc ess after permitting authorities have already developed draft permits. A commenter supported the changes the implementatio n provisions in the 1996 draft part 64 under which submittal of the CAM plan can occur as late as the first permit renewal, but asked that EP A further lessen theCAM RTC (Part III)

October 2, 1997 Page 105

burden by implementing a longer phase-in schedule g iving the source more time to prepare by installing equipment, estab lishing ranges, improving recordkeeping, etc. Other commenters als o supported phasing in the CAM program asserting that development of CA M plans during the initial Title V permit applications and reopening f reshly cemented permits is an unwise use of limited resources given the str uggles of the agency and the regulated community to implement Title V. These commenters stated that the process of analyzing proposed CAM p lans on a case-by-case basis and thousands of exemption petit ions would most likely require state agencies to hire and train new staff at a time when the implementation of Part 70 is already consuming subs tantial time and

resources.

Several commenters argued that CAM establishes a ne w regulatory regime that not only increases stringency of underl ying standards, but also requires significant preparation by owners and oper ators in addressing parameter ranges and potential corrective measures, and that therefore, implementation should not be rushed. The commenters request that CAM be made effective at permit renewal to allow a peri od of time for sources to adapt. Another commenter suggested that at a mi nimum, the effective date should be extended from 180 days to a year arg uing that the additional time will be especially necessary for so urces with multiple units. One local agency expressed concern about the burde ns of implementing CAM through the initial Title V permitting when the details of CAM plans have yet to be determined for affected sources.

A few commenters argued for implementing CAM at onl y permit renewal based on ongoing activity with related regulations. Two commenters stated that waiting until renewal would allow addit ional MACT rules, with associated monitoring, to be promulgated which may serve as appropriate CAM for other criteria pollutants. Another comment er asserted that EPA should wait until permit renewal to allow for concl usion of legal challenges to CAM and/or CE prior to expending resources on im plementation.

One commenter particularly opposed requiring CAM pl ans for small municipal utility units which exceed the CAM 50 per cent cap but not their major source threshold. As an alternative the comme nter supported allowing the permitting authority to require CAM pl ans for these units at permit renewal.CAM RTC (Part III)

October 2, 1997 Page 106

Response: While the Agency does not agree that an i mplementation time longer than

six months is the sole criterion for developing acc urate part 64 monitoring, the Agency agrees that a phased-in implementation s chedule will provide owners and operators with time to ascertain and ver ify appropriate parameters and indicator ranges for most affected p ollutant-specific emissions units. For large pollutant-specific emis sions units, the Agency believes an automatic delay until permit renewal is not justified. Such units often already have some existing monitoring, and part 64 may only require use of that monitoring or upgraded monitori ng. In addition, these units are the most environmentally significant unit s and the Agency believes that applicability of part 64 to such unit s should not be delayed unless the permitting process for the unit in quest ion has already substantially proceeded. Finally, the Agency empha sizes that the part 70 monitoring requirements apply at all times. Thus, prior to implementing part 64 monitoring, an owner or operator will have to satisfy these requirements. After approval and operation of part 64 monitoring, the part 70 requirements continue to apply, but the pa rt 64 monitoring will satisfy these requirements.

Even though the Agency plans to use a phased-in imp lementation schedule, the Agency disagrees with the comment tha t delay until permit renewal is necessary in order not to penalize those sources located in jurisdictions whose permitting authorities may be u nlikely to issue permits prior to the implementation date. The Agency disag rees with the comment that the CAM approval process will become b ogged down due to case-by-case review of proposed monitoring. Irr espective of the implementation date, source owners and operators ar e in the best position to know how their equipment works and what factors have the most bearing on proper operation of emissions control de vices. Moreover, the Agency has established a list of CAM examples in a companion technical guidance document. The use of such a list could re move any potential case-by-case bottlenecks. The Agency has requested and continues to solicit examples to be included in the technical gu idance document. The Agency also disagrees with the assertion that CAM b e delayed until conclusion of legal challenges to the credible evid ence (CE) rulemaking. That rule applies independently of the CAM rulemaki ng. Letter(s): Air Products and Chemicals, Inc. (VI-D-1 86); American Automobile

Manufacturers Association (VI-D-157); American Muni cipal Power-Ohio (VI-D-159); American Electric Power (VI-D-129); Ari zona Electric Power Cooperative, Inc. (VI-D-176); Armstrong, Teasdale, Schlafly & Davis (VI-D-205); Centerior Energy (VI-D-134); Cinergy Co rp. (VI-D-141); CleanCAM RTC (Part III)

October 2, 1997 Page 107

Air Implementation Project (VI-D-153); Colorado Ass ociation of Commerce and Industry (VI-D-182); Department of Ene rgy (VI-D-196); Electronic Industries Association (VI-D-137); Eli L illy Company (VI-D-124); Exxon Company, USA (VI-D-135); General Electric Com pany (VI-D-156); Georgia Department of Natural Resources (VI-D-193); Hawaiian Electric Company, Inc. (VI-D-165); Houston Lighting & Power Company (VI-D-228); Mobil Corporation (VI-D-115); NorAm Gas Transmission Company (VI-D-142); Ohio Chamber of Commerce et al (VI-D-160); Phillips Petroleum Company (VI-D-131); PPG Industri es, Inc. (VI-D-136); Rubber Manufacturers Association (VI-D-149); San Di ego County Air Pollution Control District (VI-D-191); Specialty St eel Industry of North America (VI-D-143); Steel Manufacturers Association (SMA) (VI-D-144); Texaco Environment Health & Safety (VI-D-199); UCAR Carbon Company, Inc. (VI-D-122); Union Carbide Corporation (VI-D-170)

Comment b: A state agency organization recommended that CAM should be

implemented only at permit renewal for Subpart C so urces in particular. The commenter proposed revisions to § 64.3(a)(2) su ch that Subpart C sources would not be required to comply with CAM re quirements until the first renewal of their Part 70 permits. The commen ter based the need for these revisions on the burdens that implementing CA M will place on states and the regulated industry. The commenter s tated that by delaying implementation of CAM for those sources wh ich EPA has acknowledged are less "likely to raise compliance c oncerns", EPA will have time to focus on developing sample CAM plans a nd permitting

authorities will be able to concentrate their limit ed resources on proper implementation of CAM for Subpart B sources. Other commenters agreed that Subpart C should not be implemented unt il renewal. Another commenter suggested that § 64.3(a)(2) clarify that Subpart C requirements can be submitted on a source-wide basi s and are not as onerous as Subpart B requirements.

Response: As mentioned above, the Agency decided to remove subpart C from the

CAM rulemaking and thus these comments are no longe r applicable.

Letter (s): Coastal Corporation (VI-D-123); Colorad o Association of Commerce and

Industry (VI-D-182); Hawaiian Electric Company, Inc . (VI-D-165); NESCAUM (VI-D-192)CAM RTC (Part III)

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Comment c: A number of commenters focused specifica lly on the amount of time that

should be allocated for sources to implement part 6 4. Many industry commenters stated that EPA should adopt a less ambi tious implementation schedule than the one outlined in th e 1996 draft part 64. However, other commenters supported the implementat ion schedule as manageable. One of these commenters stated that th e approach in the 1996 draft part 64 was better than the other option s included in the draft preamble. Environmental organizations and vendors expressed concern that the CAM implementation schedule would delay up graded monitoring. One of these commenters pointed out that many sourc es would not need to file CAM plans until they file permit renewal ap plications in 2001 or later, delaying an accurate determination of emissi ons at sources to 11 or more years after the passage of the Clean Air Act A mendments. Similarly, another commenter noted that most units will not have to begin enhanced monitoring until a date after July, 2002 a lthough EPA was originally required to promulgate rules to implemen t the enhanced monitoring requirements by 1993. This commenter arg ued that sources have had plenty of time to prepare, and any further delay of the protection the rule was intended to provide is clearly at odds with Congress' intent. These commenters stated that EPA should require all sources to submit monitoring proposals within 180 days of publication of the final rule.

Comments received from industry argued that while t he implementation provisions in the draft rule are superior to the op tion of relying on existing Part 70 procedures for incorporating new applicable requirements, the

schedule is still too ambitious. A few commenters stated that Subparts B and C should be phased in over a number of years. Two other commenters recommended that CAM be implemented only : (1) in the initial permit where an application has not been fi led prior to 180 days after CAM promulgation; (2) with a source-initiated significant permit modification; or (3) at permit renewal in all other situations. One of these commenter explained that the concept of submitting a CAM plan for applications that have not yet been determined to b e complete effectively shortens the time frame for preparing a CAM plan in those situations and may not be properly implemented by permitting autho rities. The commenter also argued that some sources would have a long lead time prior to permit issuance under a transition plan wh ich would create unfair competitive advantages based on a prioritization sc heme that did not consider CAM implementation issues.CAM RTC (Part III)

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One commenter argued that the 180 day period provid ed for developing CAM plans is far too limited to evaluate CAM applic ability, evaluate monitoring options, develop performance specificati ons, and develop CAM plans. Certain commenters made specific sugges tions such as a period of at least 18 months. Another recommendati on would have required notice of CAM applicability within 6 month s after promulgation after which the source and permitting authority wou ld work out an implementation schedule. Similarly, a commenter su ggested that the permitting authority be allowed to lengthen the 180 day deadline for complex sources that may have numerous emissions un its subject to the rule. Other commenters noted that developing monit oring may take longer than 6 months for sources that need to condu ct testing, obtain funds for public agencies, or procure and install m onitoring. One commenter stated that it could not meet the propose d implementation

schedule and maintain "reasonable costs."

Two commenters objected to the 180 day period withi n which some sources would be required to submit CAM plans argui ng 180 days would not be enough time to establish indicator ranges be cause there would be

extensive costs and time commitments involved in co nducting reference tests and demonstrating correlations between the pa rameters to be

monitored and actual emissions. The commenters add ed that this problem is compounded by EPA's failure to provide g uidance on the proper development of indicator ranges.

A utility association was particularly concerned wi th § 64.3(a)(1)(i) and suggested significant revisions to that section if the implementation schedule in the draft rule is adopted. The commente r first stated that EPA should provide some additional fixed time period af ter the 180th day (e.g., an additional 180 days) for sources to develop and submit CAM plans, even if the permit application had not been submitt ed by the 180th day. The commenter argued that in some cases (i.e., wher e the State's preexisting schedule calls for submission of the ap plication just after the 180th day), 180 days will not be enough time for de velopment of CAM plans, QIPs, and supporting data. The commenter also argued that in cases where the p ermit application

has been filed, but has not been determined to be c omplete by the 180th day, EPA should establish a reasonable deadline (e. g., 180 days after the 180th day) for supplementing complete applications. The commenter noted that the 1996 draft rule did not appear to pr ovide any deadline forCAM RTC (Part III)

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submission, but merely stated that it must be done as a supplement to the current permit application and submitted with the p ermit application.

The commenter was also concerned that, where the de adline for submittal of a permit application was more than one year befo re promulgation of CAM (which is likely in many States), § 64(a)(1)(i) (C) could result in a requirement for submittal of CAM plans in cases whe re issuance of a permit may be imminent. The commenter stated that it believed EPA intended to say that the CAM plan would be due with the permit application, if the permit was not scheduled to be issued "for more than 18 months after the date 180 days after promulgation o f CAM." This commenter also requested that EPA clarify that this provision only applies in those cases where a transition plan that will re sult in delayed action on the application has been adopted as part of a State rule. The commenter stated that otherwise a source might be frozen, as of the 180th day, into a schedule for submission of its CAM plan even though the State would be free to accelerate its transition plan and issue th e permit early (thus defeating the intent of the provision). Again the commenter stated that in this situation EPA should provide a reasonable dead line (e.g., 180 days after the 180th day) for submission of the CAM plan as a supplement to the previously "complete" application.

Response: The Agency concurs with the commenters wh o suggest using a phased-in

approach for CAM implementation. The Agency does n ot view a phased-in approach as a vehicle for delaying monito ring upgrades or

accurate determination of emissions. Part 70 alrea dy requires permits to contain monitoring which provides data that are use d to develop the compliance certifications. Should existing monitor ing be found insufficient for that purpose, under part 70, sourc e owners or operators are required to provide monitoring - including upgr ades as required -

sufficient for that task.

The Agency disagrees, however, that more than 180 d ays should be provided for emissions units that may be subject to implementation of part 64 in initial part 70 permits. A six-month lead ti me should be adequate to make a determination related to what monitoring app roach to propose and

to determine whether a basis exists for establishin g indicator ranges on existing data or there will be a need to conduct su bsequent testing. The Agency believes that this lead time is adequate esp ecially because the final rule will apply only to large units initially . For these units, existingCAM RTC (Part III)

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test data and monitoring approaches often will exis t under current applicable requirements.

With respect to the need to supplement a permit app lication in situations where an application has not yet been found complet e, the Agency believes that the timing of that supplement is best worked out between the source and the permitting authority. Finally, the final rule does not include the draft provision concerning applications for sources covered by a transition plan. Thus, comments on that provisio n are no longer applicable.

Letter(s): American Gas Association (VI-D-154); Bal timore Gas & Electric Company

(VI-D-177); California Association of Sanitation Ag encies (VI-D-206); Clean Steel Coalition (VI-D-195); Colorado Associat ion of Commerce and Industry (VI-D-182); County Sanitation Districts of Orange County, California (VI-D-231); Institute of Clean Air Compa nies (VI-D-139); Natural Resources Defense Council (VI-D-151); Pennsylvania Chamber of Business and Industry (VI-D-114); Public Service Co mpany of Colorado (VI-D-219); R.R. Donnelley & Sons Company (VI-D-221 ); Sierra Club, Lone Star Chapter (VI-D-242); Specialty Steel Indus try of North America (VI-D-143); Steel Manufacturers Association (SMA) ( VI-D-144); Texas Chemical Council (VI-D-236); The Fertilizer Institu te (VI-D-145); Total Petroleum, Inc. (VI-D-190); Tri-TAC (VI-D-225); Uti lity Air Regulatory Group (VI-D-140); Virginia Power (VI-D-226); Wiscon sin Electric Power Company (VI-D-130)

Comment d: One commenter also argued that § 64.3(a) (1)(ii) could be interpreted to

actually require sources that have not already subm itted CAM plans as of the 180th day to request a permit modification in o rder to incorporate a CAM plan. The commenter then stated that EPA shoul d clarify that the provision is only intended to address cases where a source voluntarily seeks modification. The commenter also expressed c oncern that the impact of this provision might not be fully underst ood until EPA has promulgated the revisions to the Part 70 procedures for permit modifications, and stated that EPA should not prom ulgate a CAM rule which would frustrate those streamlined procedures by tying a requirement for development of a CAM plan to every permit modification, regardless of significance.CAM RTC (Part III)

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Response: The Agency agrees with this comment conce rning potential conflict with

streamlined permit modification procedures currentl y under consideration, and the final rule includes appropriate language to clarify that this provision only applies to significant permit revisi ons. The Agency disagrees, however, with the concept that the provi sion should only apply where a revision is sought by the permittee volunta rily. Regardless of the reason for a significant permit revision, the proce ss for such a revision provides an appropriate opportunity for addressing part 64 requirements for any pollutant-specific emissions units subject to the revision. The final rule thus does not limit this provision in the mann er suggested by the

commenter.

Letter(s): Utility Air Regulatory Group (VI-D-140)

Comment e: One commenter argued that EPA should rev ise § 64.3(a)(1)(iii) to clarify

that States are not only not required, but are also not allowed, to require submission of a CAM plan before permit renewal in t hose cases where the permit application has been deemed complete as of the 180th day

and final action is not scheduled to occur more tha n 18 months after, pursuant to a legally promulgated transition plan ( unless the source triggers the CAM plan requirement by voluntarily se eking a significant permit modification for that PSEU).

Response: The Agency does not agree that permitting authorities are prevented from

implementing part 64 prior to permit renewal. When acting under their own authority, permitting authorities are able to i nitiate implementation earlier than required by part 64 just as for any ot her rulemaking.

Letter(s): Utility Air Regulatory Group (VI-D-140)

3.1.3: Specific Implementation Alternatives Recomme nded

Comment a: Several commenters recommended various a lternative implementation

schedules. Two comments received from a state agenc y and a state agency organization suggested making the rule effec tive 12 months after promulgation. One of these commenters noted that a s proposed, only sources not scheduled to receive their Title V perm it within 180 days of promulgation would be required to implement CAM and that permitting

authorities would be forced to choose sources to wh ich CAM would beCAM RTC (Part III)

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applied. The second commenter argued that the curr ent schedule encourages sources to press to get their Title V pe rmits issued prior to promulgation of CAM, and may force agencies to issu e permits without proper permit application review and permit prepara tion.

Another state agency argued that CAM should be inco rporated into operating permits as national technical guidance be comes available for each source category. The commenter supported a ph ased-in implementation schedule, but noted that under the s chedule in the 1996 draft part 64 rule, most sources would not have to take any steps to satisfy CAM until permit renewal after the year 200 0. By allowing states to oversee source development of CAM plans as techn ical guidance for source categories is developed, EPA could ensure th at CAM is implemented more uniformly nationwide while avoidin g the overburdening of state resources which would accompany the case-b y-case evaluation of CAM plans in the absence of technical guidance.

If CAM is implemented before permit renewal, one co mmenter recommended that 18 months be allowed for developme nt of CAM plans and that an additional year be allowed for States, local authorities, and the regulated facilities to determined the efficacy of CAM plans and evaluate the CAM approach before subjecting sources to CAM r elated violations. Another commenter recommended revisions to § 64.3(a )(1) which would make CAM effective for Subpart B units without perm its or completed permit applications on or after 180 days after publ ication of the final rule "or such other date as the permitting authority det ermines necessary due to the complexity of the unit or facility." Finall y, another commenter recommended generally that, if the current level of applicability is retained, EPA should implement the rule in several phases, an d establish a pilot program to demonstrate how the rule will actually w ork and to identify changes and clarifications that are needed to make the rule workable.

Response: The Agency does not agree that permitting authorities will be forced to

rearrange their permit issuance schedule. Under th e flexibility afforded permitting authorities under part 70, one third of the initial permits were to be issued in each of the first three years followin g program approval. This part 70 phased-in approach was designed to all ow permitting authorities additional time beyond the ordinary eig hteen month period for permit issuance to become familiar with the permitt ing process. Many permitting authorities decided to initiate permitti ng with less complex sources, progressing into more complex source permi tting and buildingCAM RTC (Part III)

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knowledge and expertise along the way. Moreover, s ome permitting authorities took advantage of additional time to bu ild expertise afforded though the source category limited approval process . Since permitting authorities chose their permitting schedules withou t respect to the part 64 implementation process, the Agency does not anticip ate that previous choices on permitting schedules should have any imp act. Because part 70 holds permitting authorities responsible for dev eloping and issuing complete permits or for facing sanctions ranging fr om individual permit reopenings or revisions to program withdrawals, the Agency does not believe that permitting authorities may choose to i ssue permits without proper permit application review and permit prepara tion.

The Agency believes that the phased-in approach for part 64 implementation will allow permitting authorities an d sources to have time to propose, develop, test, and refine part 64 monit oring. The Agency will consider incorporation of such methods in the Techn ical Guideline Document, provided that permitting authorities and owners or operators present that information to the Agency.

Letter(s): Coastal Corporation (VI-D-123); DuPont E ngineering (VI-D-127);

Nebraska Department of Environmental Quality (VI-D- 211); State of New Jersey Dept. of Environmental Protection (VI-D-215) ; STAPPA/ALAPCO (VI-D-179); Texaco Environment Health & Safety (VI- D-199)

Comment b: One state agency recommended a programma tic approach to

implementation. The commenter stated that although the option of reopening permits would provide for quick implement ation of CAM, it would impose an unworkable administrative burden on state agencies, adding that a programmatic approach will require ma ny sources to comply with state rules even before issuance of permits. The commenter further explained that states with so urce category approved operating permit programs will have to inc lude a comprehensive CAM program in all initial permits while many other states will have until permit modification or permit renewal to comply wit h CAM. The commenter stated that due to the large number of so urces in certain states and other factors, EPA has recognized the ne ed for the source category interim program to allow phased permitting , and argued that the benefits of source category approval followed by fu ll program approval are significantly negated if these states must implemen t CAM for the full program. The commenter therefore recommended that EPA shouldCAM RTC (Part III)

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provide at least 18 months after the promulgation o f CAM to perform state rulemaking and develop an implementation schedule u nder a state programmatic approach. An industry commenter suppo rted this same approach. (See further discussion of the programmat ic option in 3.5, below.)

Response: As mentioned above, the CAM implementatio n process is to be phased-in,

with the majority of pollutant-specific emissions u nits becoming affected upon renewal of an existing permit, not upon wholes ale permit reopenings. Also as mentioned above, the Agency ex pects that individual permitting authorities who were afforded flexibility in determining their permitting scheduling used that extra time to hone their expertise. Therefore, inclusion of the additional applicable r equirements due to part 64 should be easily handled. The Agency also notes that permitting authorities are not required to implement part 64 i nitially for their complete programs; rather, implementation will be only for l arge emissions units initially in accordance with the phased-in schedule

.

Letter(s): Houston Lighting & Power Company (VI-D-2 28); Texas Natural Resource

Conservation Commission (VI-D-189)

3.1.4: Need for Changes to State Regulations or Pro grams

Comment a: Several commenters were concerned with t he issue of changes to

permitting authority programs. One commenter argue d that the timing of CAM implementation should address such changes sinc e most, if not all, state and local Part 70 programs will have to be re vised to incorporate the monitoring changes required by the CAM rule. The c ommenter recommended that EPA should require that the Part 7 0 program changes themselves allow for a reasonable time, preferably at least a year, to implement the changes required by CAM, which would mean that permits under those programs would not have to be reopened for at least a year. Another commenter agreed that the 180 day period pr ovided in the rule is

insufficient time for States to revise their curren t Part 70 rules to be consistent with the new program and to obtain any n ecessary legislative or regulatory authority to implement CAM.

A coalition group objected to the draft rule requir ing the states to implement CAM as soon as it is effective without an y consideration of regulatory authority or resources to do so. The co mmenter explainedCAM RTC (Part III)

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that, because CAM involves major issues of discreti on, States will have to decide upon their position and then implement that decision through appropriate rulemaking or legislation. The require ment in many states to assure that State requirements are no more stringen t than the federal minimum also will complicate CAM implementation, ac cording to the commenter. The commenter added that CAM is likely to result in the need for new staff, with changes in permit fees and that standard permit application forms will have to be changed. This co mmenter stated that all

of these issues must be addressed in accordance wit h the procedures for modifying and approving title V programs, which at a minimum provide a state up to two years to make a necessary change. The commenter claimed that EPA had simply put CAM into effect wit hout observing the legal requirements for revisions in CAA section 502 . The commenter also argued that, as an example, the Texas programm atic option is one that the state is legally entitled to present to EP A as an approach to consider for implementing the federal CAM requireme nts, and that EPA should allow for this proposal in developing its im plementation provisions, as a matter of sound policy.

Another commenter also stated that state implementa tion of CAM will require the amendment of Title V permit programs, a nd that such changes will have to be approved by EPA. In order for the CAM program to be successful, the commenter argued that EPA will have to obtain assurances from the states that changes to Title V programs allow for adequate allocation of resources for the states to develop, administer, and enforce the CAM program, adding that changes to sta te permitting programs should include a streamlined procedure for amending CAM plans. This commenter also stated that, in address ing these issues, EPA must follow the procedures specified in the Act and EPA's own implementing regulations for making such changes to state programs.

Another commenter argued that states will need dele gation of authority from EPA to implement part 64 through their permit programs, but that EPA cannot delegate its authority unless a state ha s developed its procedures for implementing the CAM rule, and the A dministrator has found those procedures to be adequate (see section 114(b)(1)). Many states will have to go through rulemaking in order to have adequate authority for receiving delegation of CAM, accordin g to the commenter who stated that until that occurs, only EPA would h ave the ability to implement CAM, which would be unworkable since EPA is not administering title V generally. The commenter con cluded that all ofCAM RTC (Part III)

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these actions will take time to implement and CAM s hould not apply until the state authority issues have been addressed.

Response: The Agency disagrees that CAM implementat ion will be necessarily

impeded due to revisions of state and local permitt ing programs to incorporate part 70 program changes related to moni toring and compliance certification requirements. Permitting authorities have already had to show their ability to handle regulat ory changes without putting their programs on hold. In order to have r eceived program approval, permitting authorities had to submit lega l opinions that demonstrated adequate legal authority to incorporat e these kind of requirements and to have the ability to incorporate into permits all applicable requirements - including incorporating m onitoring into permits as specified in § 70.6. (40 CFR § 70.4(b)(3)(ii)) Section 70.6 specifically mentions that monitoring required under section 114 (a)(3) must be included in permits.

In any event, the Agency does not believe that the promulgation of part 64 will require any significant changes in State permi t programs. As mentioned above, currently, part 70 specifies that monitoring required under section 114(a)(3) is an applicable requiremen t which must be addressed in the operating permit. 40 CFR §§ 70.6( a)(3) and 70.2. To the extent any changes in a State permit program ar e needed, the revision procedure in section 70.4(i) will apply. This rulemaking has resulted in changes to the compliance certification language in part 70 and the revision procedures in section 70.4(i) do a pply to the extent States compliance certification requirements need t o be revised. However, section 70.4(i) procedures do not require revisions to a State operating permit program when an applicable require ment such as part 64 is promulgated. The EPA disagrees with the coalit ion group’s description of the statutory requirements regarding changes in a State’s permitting program.

Finally, the Agency does not believe, consistent wi th sections 70.4 and 70.10 of the part 70 regulations and the Act, that CAM implementation will result in an inability by permitting authorities to administer, enforce, or otherwise conduct their approved programs in accord ance with the requirements of part 70 or the Act. If an approved State comes to believe that it no longer has legal authority to implement part 70 adequately, or if the State believes that it has inadequate resources or funding or other means to implement its program, then the State may initiate a programCAM RTC (Part III)

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revision. Similarly, if EPA becomes convinced that such situations exist, then EPA may initiate a program revision to an appr oved State program at

a later time.

As previously mentioned, the Agency does not prohib it permitting authorities from using programmatic approaches for part 64 implementation. EPA disagrees with the coalition g roup’s description of the statutory requirements. Moreover, the Agency d oes not believe that the promulgation of part 64 will require any signif icant changes in State permit programs. Currently, part 70 specifies that monitoring required under section 114(a)(3) is an applicable requiremen t which must be addressed in the operating permit. 40 CFR §§ 70.6( a)(3) and 70.2. To the extent any changes in a State permit program is needed, the revision procedure in section 70.4(i) will apply. This rule making has resulted in changes to the compliance certification language in part 70 and the revision procedures in section 70.4(i) do apply to the extent States compliance certification requirements need to be mo dified. Finally, the Agency does not believe, consistent with sections 7 0.4 and 70.10 of the part 70 regulations and the Act, that CAM implement ation will result in an inability by permitting authorities to administer, enforce, or otherwise conduct their approved programs in accordance with the requirements of part 70 or the Act. If an approved State comes to believe that it no longer has legal authority to implement part 70 adequately , or if the State believes that it has inadequate resources or fundin g or other means to implement its program, then the State may initiate a program revision. Similarly, if EPA becomes convinced that such situa tions exist, then EPA may initiate a program revision to an approved Stat e program at a later

time. Letter(s): Coalition for Clean Air Implementation ( VI-D-164); Coalition for Clean Air

Implementation (VI-D-249); Department of Defense (V I-D-209); Eastman Chemical Company (VI-D-173); Marathon Oil Company ( VI-D-185); Utility Air Regulatory Group (VI-D-140)

3.1.5: Requests for Clarification

Comment a: One commenter recommended generally that EPA more specifically

define the information to be submitted and the dead lines for submittal.

Another commenter stated that is was unclear what d eadline applies if an application is deemed complete by the permitting au thority and issuance or denial of the application is expected within 18 months of the applicationCAM RTC (Part III)

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deadline. The commenter also requested clarificati on as to whether the completeness determination referred to in § 64.3 is the determination that invokes the application shield.

Response: The Agency believes the final rule sets f orth explicit submittal

requirements and deadlines. The Agency interprets t he example to be a question concerning whether part 64 needs to be add ed if a permit, based on an application determined complete before the ef fective date of part 64, is denied. The rule is clear on this point: if a permit application which covers at least one large pollutant-specific emissi ons unit is required on or after the date 180 days after publication of this r ule in the Federal Register , then part 64 needs to be addressed as an applicab le requirement. The permit application completeness d etermination mentioned in part 64 is the determination that allo ws a part 70 source to operate without a permit during the period between submission of a complete application and issuance of a final permit . That determination is discussed in §§ 70.5(a)(2) and 70.7(b).

Letter(s): Ohio EPA, Division of Air Pollution Cont rol (VI-D-180); PPG Industries,

Inc. (VI-D-136)

Comment b: A commenter requested clarification as t o whether a CAM plan would be

part of a permitting authority's completeness deter mination for applications submitted after the 180 day period fol lowing CAM promulgation, and requested EPA to clarify the outc ome of a situation in which the application is determined to be complete but the CAM plan is subsequently disapproved.

Response: Part 64 monitoring will be included as pa rt of permitting authorities’ permit

application completeness determinations, because, a s required by §§ 70.5(c)(3)(v) and 70.5(c)(4), the monitoring involv es air pollution control equipment and compliance monitoring devices and app licable requirements. The Agency has added rule language a t § 64.6(e) to clarify the consequences of disapproval of monitori ng submitted under part 64.

Letter(s): Department of Energy (VI-D-196)CAM RTC (Part III)

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Comment c: One of the commenters stated that its un derstanding of the

implementation schedule was that some facilities ma y not require CAM until permit renewal, but that the effective date w ill be January 1999 for sources with complete permit applications that are not scheduled to receive permits for more than 18 months.

Response: As mentioned above, the provision in the 1996 part 64 Draft concerning

permit schedules under a transition plan is not inc luded in the final rule. The Agency believes the draft provision was confusi ng and would have created implementation uncertainties.

Letter(s): American Furniture Manufacturers Associa tion (VI-D-203)

Comment d: A commenter requested clarification of § 64.3(a)(1)(i). The commenter

noted that, as currently written, this section appe ars to require submission of a CAM plan or Subpart C monitoring description w ith a Part 70 permit application within 180 days after rule publication even if such applications are not yet due under the operating permit program or if the State is subject to Part 71 instead of Part 70.

Response: Part 64 does not compel submission of per mit applications in advance of

the schedule established by permitting authorities. However, permitting authorities have the ability to set, and adjust, th eir application submission schedules, so some permitting authorities may seek to advance their application submission schedules. In the event tha t sources are subject to a federal operating permits program, the Agency will establish appropriate application submission schedules.

Letter(s): Texas Chemical Council (VI-D-236)

Comment e: Two commenters recommended that EPA clar ify when CAM submissions

are due from sources whose permit applications will be acted upon under a transition plan. The commenters noted that § 64. 3(a)(1)(i)(C) requires CAM plans or Subpart C monitoring plans to be filed as part of the permit by " . . . those whose applications have been deeme d complete, but which

are not scheduled to receive final action for at le ast 18 months from a specified date." They then stated that the rule an d the preamble disagree about that specified date since the rule r efers to 18 months after the deadline for submittal of such application whil e the preamble refers toCAM RTC (Part III)

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18 months after the date 180 days after the promulg ation of CAM. The commenters proposed various revisions to § 64.3(a)( 1)(i)(C) to make the rule consistent with the preamble, and suggests tha t EPA not allow CAM implementation to interfere with initial Title V im plementation.

Response: These comments are no longer applicable b ecause, as discussed above,

the draft provision related to implementing CAM for certain units covered by a transition plan is not included in the final r ule.

Letter(s): Chemical Manufacturers Association (VI-D -152); Union Carbide

Corporation (VI-D-170)

Comment f: A commenter suggested that § 64.3(a)(1)( ii) use the word "any" instead of

"a" before "request" so that it is clear that the i nformation must be submitted only with a request initiated by the owne r and not as a required

separate request.

Response: The Agency is unable to discern the diffe rence in terms suggested by the

commenter. However, the specific language cited ha s been omitted in the final rule. As previously mentioned, informati on from § 64.3 from the 1996 part 64 Draft has been moved to § 64.5 of the final rule. In the final rule, the requirement to address part 64 in a permi t modification applies to any significant permit modification action, whether initiated by the owner or operator, or required by the permitting authorit y or a regulatory requirement. See response to Comment d in section 3.1.2 (Part III).

Letter(s): KBN Engineering and Applied Sciences, In c. (VI-D-229)

Comment g: One commenter recommended that EPA inclu de in part 64 a statement

that the part 70 permit application shield is not b reeched if the permitting authority requests further information on a CAM pla n or accepts compliance plan for establishing indicator ranges a fter permit issuance.

Response: Neither of the two situations would breec h the permit application shield.

A request for additional information related to pro posed monitoring is allowed under § 70.5. Such a request for part 64 i ssues does not affect the application shield any more than it would for a ny other applicable requirement. Thus, EPA does not believe that expli cit language on this issue is necessary or appropriate for part 64. Sin ce the compliance planCAM RTC (Part III)

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would be issued as part of the permit, the Agency d oes not believe that the application shield will come into play in this circumstance. Moreover, even if it did, the part 64-related compliance plan would be treated in the same respect as any other compliance plan and thus no explicit part 64 language on this issue is necessary or appropriate.

Letter(s): National Environmental Development Assoc iation (VI-D-169)

Section 3.2: CAM Elements in Permits

Section 3.2.1: Number of Terms in Permit/Flexibili ty Concerns

3.2.1.1: Inclusion of CAM Elements in Title V Permi ts

Comment a: Many commenters discussed the link betwe en CAM plans and Title V

operating permits. One commenter supported the inc lusion of CAM requirements in operating permits as being consiste nt with the Congressional intent to include all the requirement s that a source must meet in a single document. Another commenter sugge sted that a rule requiring direct emissions measurement would avoid the problems associated with codification of detailed operations and maintenance requirements for sources. This commenter argued th at with direct monitoring operational flexibility is maximized sin ce process parameters and work practices can be varied freely so long as emissions limits are

met.

Most commenters, however, stated that incorporating numerous CAM plan and Subpart C monitoring elements into operati ng permits is contrary to statements made by EPA and will interfere with t he ability to revise CAM plans and Subpart C monitoring, because changes to the plans could only be accomplished through the detailed and time-consuming permit modification procedures. A few commenters a lso emphasized that the delays associated with modifying these terms wi ll be most severe in the early years of the CAM program, when sources sh ould be encouraged to refine their CAM plans and monitoring. The comm enters argued that requiring monitoring details such as frequency, ave raging time, parameter monitoring ranges, etc. to be specified in the perm it before the adjustment period will require significant effort in modifying the permits. Pharmaceutical industry commenters noted that their concerns are based on the flexible nature of batch pharmaceutical oper ations where changesCAM RTC (Part III)

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that are considered (e.g ., manufacture of a product in different areas of a facility) would necessitate changes to a source's C AM plan which would then need to be incorporated into the source's Titl e V permit through permit modification. Another commenter expressed c oncern about the burdens of reviewing permit applications and concom itant delays in receiving permits.

A commenter stated that the process of developing a nd approving CAM plans will impose a substantial burden on the Title V permitting process since multiple CAM plans may be required for each s ite, and site-specific test data is necessary to justify each CAM plan ele ment, which may make each CAM plan a document as big as a graduate thesi s. The commenter pointed out that permitting authorities will then n eed to make timely case-by-case technical evaluations of the proposed CAM plans. The commenter noted that this will result in a heavy wo rkload for permitting authorities such that sufficient time may not be sp ent on each permit, adding that just one discretionary criterion, such as BACT in the NSR context, can double the time for permit issuance.

Commenters argued that the CAM rule would overwhelm the Title V permit process by creating a vast number of new req uirements to be included in operating permits. One commenter state d that for each emissions limit or standard, the proposed rule coul d require that ten CAM plan elements be incorporated into a permit which w ould result in the creation of numerous new work-practice type require ments. The commenter noted that the development of similar wor k practices, such as LDAR requirements for VOC sources, took millions of dollars and many years and that EPA's use of Title V to create such new requirements is contrary to EPA's statements in the July 1, 1995 Ti tle V White Paper that operating permits should be used to define existing requirements and not to impose new requirements. One commenter objected to § 64.3(b)(2) allowing the permitting authority unlimited discret ion to make any element of a CAM plan part of the permit. The commenter arg ued that not only is this an unwarranted delegation of authority, it is inconsistent with the intent of CAM to limit the terms in the permit, and stated that the rule must specify exactly what elements are to be included in the permit.

Some commenters cautioned that changes in new CAM p lans must be anticipated during initial implementation, particul arly during the first year.

Commenters were concerned that the current CAM rule would seem to require permit modification for almost any CAM plan change and wouldCAM RTC (Part III)

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overwhelm the Title V permit system. For example, commenters pointed out that indicator ranges will likely be continuall y refined as better data are obtained, and control measure parameters may need t o be altered because of process changes or improved information. Requiring permit

modification under such circumstances will lead to long and expensive permit modification proceedings with varying result s from state to state.

Another commenter concerned about the ability to ma ke changes to CAM plans and indicator ranges during the early impleme ntation of the program noted that adjustments are still being made to the use of CEMS under the South Coast Air Quality Management District's RECLA IM rule three years after adoption of that rule. The commenter stated that these adjustments could be far more easily accomplished if CAM plans are independent of operating permits. Another commenter recommended t hat the rule provide flexibility which will be needed by new fac ilities which often have to adjust operating conditions to meet emission lim its in a manner different than the original design parameters.

Other commenters stated that at a minimum, EPA shou ld explicitly provide for CAM permit modifications to be processe d under "notice and go" provisions or as administrative changes. A com menter suggested that changes to indicator ranges be processed using the most minimum modification procedure that is allowed once the par t 70 revisions concerning permit modifications are finalized and a nother stated more generally that permit modification procedures for C AM requirements should be as limited and streamlined as possible. A coalition group noted that the approach in the CAM draft would seem to frustrate the work EPA has put into providing streamlined permit modif ication procedures and that the rule must provide for streamlined perm it modification procedures, especially for the early years of CAM i mplementation which will require substantial debugging.

Certain commenters argued that imposing unnecessary detail such as specific parameter ranges in the permit could actua lly create a disincentive to development of monitoring designed to identify problems with control equipment, and to process or monitorin g improvements that may reduce pollution or conserve resources because of the burdensome permit modification process. Commenters requested that such changes to parameter ranges be done "off-permit."CAM RTC (Part III)

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One commenter who recommended the deletion of § 64. 11(d) because the details of a CAM plan should not be established as permit elements noted that any changes to monitoring as a result of a QIP will be reported under the requirements of § 64.11(c).

One commenter objected to compliance monitoring req uirements becoming title V applicable requirements, and state d in particular that indicator ranges should not become equivalent to an emission limitation or standard. The commenter argued that the purpose of CAM should be to assure compliance with underlying applicable requir ements, not establish new requirements.

Another commenter discussed the procedures for modi fying permits in the 1996 part 64 draft and earlier drafts. The commente r asserted that the 1996 draft would generally require a significant pe rmit modification for any CAM plan change. According to the commenter the 19 95 part 70 permit modification proposal could allow some, but unspeci fied, streamlining based on unspecified procedures to be developed by a state and approved by EPA and the 1994 part 70 permit modific ation proposal does not provide any greater assistance than the 1995 pr oposal; given the changes to the permit modification revisions propos ed since that 1994 proposal as well as the changes to the original EM proposal in CAM, the 1994 part 70 proposal cannot be a valid basis for p romulgating final permit modification procedures.

Response: The Agency disagrees with the commenters’ suggestions that including

part 64 monitoring elements in part 70 permits will necessarily interfere with the ability to revise part 64 monitoring. The required monitoring elements to include in a permit are not significant ly different from the elements of monitoring that would have to be includ ed in a permit where the underlying requirement specifies the monitoring approach or where an owner or operator has received approval of an alter native monitoring methodology. In addition, the Agency has addressed concerns about the potential need to revise indicator ranges without h aving to obtain a permit revision. The final rule allows owners or operator s the choice in establishing a permit condition that sets out the p rocess for setting parameter indicator ranges or that establishes the actual indicator ranges. As mentioned before, the Agency notes that subpart C is no longer included in the rule and that revisions to part 64 monitoring are to take place in accordance with the permit revision proced ures given in part 70. As mentioned in the preamble, the Agency believes t he phased-in CAMCAM RTC (Part III)

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implementation schedule will help minimize any burd en on the operating permit process.

Letter(s): Air Products and Chemicals, Inc. (VI-D-1 86); American Automobile

Manufacturers Association (VI-D-157); American Petr oleum Institute (VI-D-146); ASARCO Incorporated (VI-D-187); BP Oil Company (VI-D-113); Can Manufacturers Institute (VI-D-181); Chemical Manufacturers Association (VI-D-152); Chevron Compa nies (VI-D-132); CITGO Petroleum Corporation (VI-D-172); Clean Air I mplementation Project (VI-D-153); Coalition for Clean Air Impleme ntation (VI-D-164); Cooperative Power Corporation (VI-D-208); Departmen t of Defense (VI-D-209); DuPont Engineering (VI-D-127); Duquesne Light (VI-D-138); Eastman Chemical Company (VI-D-173);Eli Lilly Compa ny VI-D-124); Exxon Chemical Americas (VI-D-128); Exxon Company, USA (VI-D-135); General Electric Company (VI-D-156); Independent Li quid Terminals Association (VI-D-178); Institute of Clean Air Comp anies (VI-D-139); Metropolitan Council (VI-D-214); Mobil Corporation (VI-D-115); Ohio Chamber of Commerce et al (VI-D-160); Pennsylvania Chamber of Business and Industry (VI-D-114); Pennzoil Company (VI-D-133);

Pharmaceutical Research and Manufacturers of Americ a (VI-D-217); Public Service Company of Colorado (VI-D-219); Rubb er Manufacturers Association (VI-D-149); South Carolina Electric and Gas Company (VI-D-116); Southern California Gas Company (VI-D-2 22); Texas Title V Planning Committee (VI-D-188); The Society of the P lastics Industry (VI-D-148); The Fertilizer Institute (VI-D-145); UC AR Carbon Company, Inc. (VI-D-122); Utility Air Regulatory Group (VI-D -140); Virginia Power (VI-D-226)

Comment b: Several commenters who acknowledged that Title V operating permits may ha

whether or not they are in compliance with CAM. Un der the commenters’ proposal, if not in compliance, CAM would be includ ed in the source's compliance schedule, like any applicable requiremen t. The commenters suggested that sources would then have to certify c ompliance with CAM at least annually and argued that this approach wou ld allow for CAM plan revisions without the delays of permit modification . A commenter suggested using the approach contained in the EM pr oposal whereby a facility monitoring protocol would be incorporated by reference into the Title V permit, but would remain separate from the permit and outside of the permit modification process. The commenter ask ed that the Title V permit only include the requirement to develop, mai ntain, and implementCAM RTC (Part III)

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the CAM plans. They recommended revisions to §§ 64. 3(b)(2), (3), (5), and (6) to bring about such changes.

Many commenters cited the recently-promulgated Risk Management Plan (RMP) rule as support for these approaches. 61 Fed . Reg. 31668 (June 20, 1996). Some commenters also noted that the pre amble to the RMP rule specifically states that "EPA does not believe that the RMP or all or any portion of the remainder of part 68 should beco me permit conditions because the RMP and part 68 elements will be highly source-specific and subject to frequent change introducing unnecessary complexity and delaying permit implementation." Other commenters compared the approach of putting all the detail in the CAM plan rather than the permit with EPA's practices in other rules, including the Part 63 startup/shutdown/malfunction plan rules, as well as the RMP rule. Another commenter who recommended the RMP approach also asserted that there is actually nothing in the Act that comp els EPA to review all details of all CAM plans as suggested by the draft CAM approach.

One commenter was particularly concerned with the r equirement that the elements for judging data validity be included in t he permit. Since quality assurance procedures can be quite complex, the comm enter favored establishing a general permit condition encompassin g the requirement for implementation of the performance criteria.

Response: The Agency disagrees with the commenters’ suggestions that part 64

monitoring development is analogous to RMP developm ent. The RMPs required under section 112 are detailed procedural manuals, often based on standard operating procedure manuals or similar items. The level of detail required to be included in a permit to addre ss part 64 is not comparable to an RMP.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); American

Petroleum Institute (VI-D-146); Chemical Manufactur ers Association (VI-D-152); Chevron Companies (VI-D-132); Class of '85 Regulatory Response Group (VI-D-161); Clean Air Implementation Project (VI-D-153); Cooperative Power Corporation (VI-D-208 ); Eli Lilly Company VI-D-124); Exxon Chemical Americas (VI-D-128); Mobi l Corporation (VI-D-115); Pharmaceutical Research and Manufacture rs of America (VI-D-217); Phillips Petroleum Company (VI-D-131); Rubber Manufacturers Association (VI-D-149); UCAR Carbon C ompany, Inc. (VI-D-122); Virginia Power (VI-D-226)CAM RTC (Part III)

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Comment c: A number of commenters who objected to t he number of new applicable

requirements provided for under the 1996 draft part 64 suggested key elements for inclusion in the permit which they des cribed as maintaining the focus of the rule and streamlining the process of changing and amending CAM plans. These commenters recommended t hat only the most major elements of the monitoring plan should b e referenced as permit conditions.

Some commenters believed that the CAM rule should o nly establish two new applicable requirements: the requirement to hav e a CAM plan and the requirement to report deviations (or excursions and exceedances). Other commenters agreed that the only CAM requireme nts that should be included in a permit are the obligation to have a C AM plan and the obligation to report deviations; they expressed con cern that CAM requirements could become a critical path roadblock to processing modifications expeditiously so as to allow necessar y operating changes to respond to business needs. Therefore, the commente rs concluded that approval of CAM changes should be allowed to occur off-permit.

A state agency commenter recommended including only the parameter to be monitored and the requirement to establish an in dicator range in the operating permit. The commenter suggested that indi cator ranges be submitted in the semiannual report which would elim inate the need to modify permits to establish indicator ranges. Unde r the commenter’s approach, permitting authorities would approve chan ges in indicator ranges. Another commenter recommended that only th e list of sources required to have a CAM plan be incorporated into th e Title V permit. This commenter stated that CAM plans would then be devel oped as separate documents with non-permit related revision requirem ents.

A few commenters stated that the CAM rule should on ly require that an operating permit include the condition that a sourc e must have a CAM plan and that actual CAM plan elements should not b e a part of the permit. Another commenter who argued that the CAM plan should only be referenced in the permit, rather than being inco rporated into the permit conditions stated that this would prevent reopening of the permit for incorporation of the CAM plan and any subsequent am endments, and would limit excursions from CAM plan indicator rang es to the status of CAM violations, instead of allowing them to become permit violations.CAM RTC (Part III)

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Other commenters suggested that the permit include the requirement to have a CAM plan plus a general requirement reflecti ng the corrective action/QIP obligations of CAM.

Some commenters suggested that the only two require ments be an assertion that the source has developed and filed w ith the permitting authority a plan and a statement as to which elemen ts of the plan are federally-enforceable. A commenter stated that the list in § 64.7(a) presents a good start at such a statement, except f or § 64.7(a)(5) which is open-ended and should be deleted. The commenter ad ded that the provisions in paragraphs (a)(1) through (a)(4) coul d be simplified and streamlined which will be important to assure the f lexibility to modify monitoring without permit modifications and to limi t the number of elements that are considered federally-enforceable requirements.

Finally, two commenters simply suggested including within the permit a separate section, where the source could include ea ch CAM plan in its entirety and distinguish CAM requirements from non- CAM requirements.

Response: As mentioned above, the Agency believes t he primary flexibility concern

has been addressed by allowing permits to contain t he process for adjusting parameter indicator ranges, or the indica tor ranges themselves. The Agency disagrees with the concept of a general condition that an owner or operator maintain and operate in accordanc e with a CAM plan. Monitoring under part 64 is treated in the same man ner as monitoring under any other applicable requirement: the permit needs to specify

what the source will monitor, how the monitor will be operated and maintained, and how the owner or operator will repo rt

exceedance/excursion data.

Letter(s): Air Products and Chemicals, Inc. (VI-D-1 86); American Automobile

Manufacturers Association (VI-D-157); Association o f Battery Recyclers (VI-D-155); California Association of Sanitation Ag encies (VI-D-206); Chemical Manufacturers Association (VI-D-152); CITG O Petroleum Corporation (VI-D-172); Coalition for Clean Air Imp lementation (VI-D-164); County Sanitation Districts of Los Angeles County ( VI-D-232); County Sanitation Districts of Orange County, California ( VI-D-231); Duquesne Light (VI-D-138); Eastman Chemical Company (VI-D-17 3); Exxon Company, USA (VI-D-135); General Electric Company ( VI-D-156); Mobil Corporation (VI-D-115); Ohio Chamber of Commerce et al (VI-D-160); Pennzoil Company (VI-D-133); Public Service Company of ColoradoCAM RTC (Part III)

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(VI-D-219); Southern California Gas Company (VI-D-2 22); Texas Natural Resource Conservation Commission (VI-D-189); Texas Chemical Council (VI-D-236)

3.2.1.2: Permit Shield

Comment a: Some commenters supported extending the permit shield to monitoring

requirements and noted that EPA had correctly recog nized that extension of the permit shield to monitoring would allay sour ce concerns about the adequacy of monitoring under Part 64. A few commen ters stated that a source that is in compliance with an approved CAM p lan is entitled to the protection of the statutory permit shield provision s. Recognizing that EPA can require correction of inadequate plans, the com menters argued that a source should not be penalized for complying with a n approved plan. These commenters concluded that compliance with the CAM plan, since it constitutes a title V permit requirement, should co nstitute compliance with the source's obligations to reasonably assure compl iance with the underlying applicable requirements. Another commen ter added that the shield must be provided so that if a source complie s with its CAM obligations it may certify compliance.

One commenter stated that the shield should attach to monitoring changes made pursuant to § 64.3(b)(5). A coalition group objected to limiting protection for sources that need to improv e their monitoring to the Part 70 permit shield. According to the commenter i t is necessary to provide protection to sources that correct deficien cies in monitoring that was originally approved and the rule must provide s uch protection even where the permitting authority does not make the Pa rt 70 permit shield available. Another commenter agreed that the rule should explicitly provide that an owner or operator conducting monito ring established in a permit is not subject to enforcement action based o n a claim that the monitoring fails to satisfy Part 64 because permitt ing authorities should

not be able to choose whether or not to include CAM monitoring requirements under the Part 70 permit shield. One commenter explained that the rule criteria are too general to be an ade quate basis for an

enforcement action based on an assertion that the m onitoring included in the permit fails to satisfy part 64. The commenter added that any correction to a CAM plan should take place through the administrative

process.CAM RTC (Part III)

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Response: As mentioned in the preamble to the final rule, the Agency believes that

the permit shield can be extended to cover part 64 requirements included in a permit, just the same as any other applicable requirement, to the extent that permitting authorities grant permit shi elds. The Agency also notes that the permit shield is not an enforcement shield to the use of data generated by part 64 monitoring as credible evidenc e of compliance with or violations of other applicable requirements. Th e Agency believes that even if a permit shield is not granted, an enforcem ent action for inadequate monitoring would be difficult to maintai n (absent some evidence of fraud or willful misconduct) given that the monitoring would have been approved by the permitting authority, not vetoed by the Agency, and not challenged in appropriate form afte r permit issuance. Thus, the final rule does not contain any explicit provision on this subject.

Letter(s): American Gas Association (VI-D-154); Che mical Manufacturers

Association (VI-D-152); Cinergy Corp. (VI-D-141); C lean Air Implementation Project (VI-D-153); Colorado Associa tion of Commerce and Industry (VI-D-182); Coalition for Clean Air Im plementation (VI-D-164); Ohio Chamber of Commerce et al (VI-D-16 0); Pennzoil Company (VI-D-133); Total Petroleum, Inc. (VI-D-190 )

3.2.2: Enforceable Indicator Ranges

Comment a: A state agency and an association of sta te and local authorities argued

that critical parameters should be enforceable. One of the commenters stated that having certain enforceable indicator ra nges would enable state and local agencies to proceed as they deem appropri ate when monitoring

data reveal excursions. The second commenter asser ted that once the relationship between monitored parameters and actua l emissions is established, indicator ranges should be incorporate d into the permits as

enforceable terms.

Two industry commenters agreed to a limited extent stating that the rule should provide that indicator ranges can be include d as independent, enforceable permit terms if the source voluntarily agrees to that approach, which a source might do under suggested provisions designed to avoid corrective action/QIP requirements. However, most industry commenters argued that EPA should limit or delete provisions e nabling states to make excursions enforceable. (See related comments in Se ction 14-Enforcement Concerns.)CAM RTC (Part III)

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Noting that § 64.3(b)(2)(ii)(B) provides that state s may declare that

deviations constitute enforceable violations "in ac cordance with the existing authority of the permitting authority" und er Part 70, a commenter stated that only in limited circumstances will Titl e V permits contain enforceable requirements that are not grounded in o ther substantive

programs.

Other commenters argued that EPA does not have the power to make an excursion an enforceable requirement, except insofa r as it is an unexcused violation of an applicable requirement. These commenters asserted that in doing otherwise EPA would be illeg ally increasing the stringency of the underlying standard or creating n ew applicable requirements. Another commenter stated that indica tor ranges that are not directly used to indicate compliance or noncomp liance should not be

enforceable.

Several commenters asked that EPA make clear that t he authority to establish parametric monitoring levels as independe ntly enforceable applicable requirements must be found in an existin g state or federal program and that the parametric monitoring level do es not become federally enforceable if the authority is grounded in a state-only requirement. These commenters recommended that EPA establish that permitting authorities cannot rely on Part 70 or st ate and local periodic monitoring provisions to make indicator ranges enfo rceable since those Part 70 provisions will be replaced by CAM.

Some industry commenters explicitly recognized that states have the power to be more stringent than EPA and that states asked for the ability to penalize deviations whether or not they are viol ations. However, these commenters urged EPA to discourage states from taki ng this approach because penalizing deviations will only result in s ources proposing as little monitoring as possible and setting indicator ranges at emission standards. A number of commenters agreed that this approach i s inconsistent with the goal of CAM to establish indicator ranges below emission limits to provide an early warning indicator. One commenter recommended eliminating violations associated with excursions a nd multiple QIPs and specifying that this section does not authorize the use of Title V to change underlying standards or their applicability.CAM RTC (Part III)

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A coalition group argued that including indicator r anges as enforceable terms attempts to directly correlate the indicator monitoring to the applicable requirement which is too similar to the enhanced monitoring rule. Another commenter added that the ability to establish indicator ranges as enforceable requirements based on the des ign criteria for indicator ranges clearly increases the stringency o f underlying requirements. The coalition asserted that if these enforceable conditions are intended to be state-only, the rule should not encourage them because EPA should confine itself to prescribing th e necessary federal standards to carry out the law. One commenter adde d that this concept is inconsistent with the nature of the monitoring b eing conducted since the monitoring is useful to identify emerging control p roblems, not to quantify emissions. Another commenter who argued that the r anges should trigger only corrective action and increased agency surveillance stated that if the indicator range is enforceable, the sou rce is faced with two untenable options: first, it can set the extreme of the indicator range very high so that it will always document emissions abov e the emission limit, but that range would be too high to satisfy part 64 criteria; alternatively, the source can set the range at the other extreme, but that would lead to an increased stringency problem. This commenter als o stated that the concept of setting the range to exactly equate to t he emission limit fails to recognize the imprecision in the relationship betwe en the indicators and

the emissions.

Response: The Agency believes the commenters’ sugge stions are included in the

final rule. As mentioned in the preamble, paramete r indicator ranges can become enforceable limits if proposed by an owner o r operator and accepted by a permitting authority. In addition, e ven though not stated in the rule, permitting authorities always retain any independent authority to establish indicator ranges as enforceable requireme nts. As mentioned in the preamble and the final rule, the Agency notes t hat multiple QIPs no longer necessarily constitute a violation.

Letter(s): Air Products and Chemicals, Inc. (VI-D-1 86); Air Control Techniques, P.C.

(VI-D-202); American Automobile Manufacturers Assoc iation (VI-D-157); American Gas Association (VI-D-154); Association of Battery Recyclers (VI-D-155); Chemical Manufacturers Association (VI- D-152); Chevron Companies (VI-D-132); Cinergy Corp. (VI-D-141); Cle an Air Implementation Project (VI-D-153); Coalition for Cl ean Air Implementation (VI-D-164); DuPont Engineering (VI-D-127); Exxon Ch emical Americas (VI-D-128); General Electric Company (VI-D-156); St ate of New JerseyCAM RTC (Part III)

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Dept. of Environmental Protection (VI-D-204); Ohio Chamber of Commerce et al (VI-D-160); Public Service Company o f Colorado (VI-D-219); Southwestern Public Service Company (VI -D-224); Specialty Steel Industry of North America (VI-D-143); STAPPA/ ALAPCO (VI-D-179); Steel Manufacturers Association (SMA) ( VI-D-144); The Fertilizer Institute (VI-D-145); UCAR Carbon Compan y, Inc. (VI-D-122); Utility Air Regulatory Group (VI-D-140); Wellman, I nc. (VI-D-237) Wisconsin Electric Power Company (VI-D-130)

Comment b: One commenter stated that it did not und erstand how, under §64.3(b)(3)),

"indicator ranges," or "corrective action," apply t o units covered by Subpart C which do not have active control devices.

Response: As mentioned above, subpart C is no longe r included in the rule, so this

comment is moot.

Letter(s): Utility Air Regulatory Group (VI-D-140)

Section 3.2.3: QIP Period as Deviation/Second QIP as Violation

3.2.3.1: Second QIP as Title V Permit Violation

Comment a: As set out below, many commenters argued that a second QIP in a permit

term should not be treated as a Title V permit viol ation. (See related comments in Section 14 - Enforcement Concerns.)

A commenter stated that the draft rule's approach o f turning a second QIP into a violation thwarts the QIP provisions' goal o f providing sources with an opportunity to evaluate and resolve problems. A nother commenter pointed to EPA’s recognition in § 64.10(c) that com pliance with a QIP is not a substitute for compliance with underlying app licable requirements and stated that by triggering a QIP, a source may n ot necessarily be in violation of an underlying applicable substantive r equirement, particularly if a source has set its parametric ranges far below the emissions limitation or standard. One commenter specified that exclusio ns from trigger levels which are 20 percent below the applicable standard should not be penalized. Many commenters agreed that the current scheme encourages sources to establish plans with broad or high indicator ranges to ensure that the ranges will not be exceeded. Ot hers added that QIPs should have a positive effect, not create negative liabilities.CAM RTC (Part III)

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Several commenters emphasized that they view the pr ovision establishing a second QIP as a violation as illegal because it e ffectively increases the stringency of underlying requirements by imposing a new compliance obligation on a source that could be violated even though the underlying

emission limits are not violated. A commenter reco mmended that implementation of a QIP should only be considered a violation of the permit if the emission limitation or standard has a lso been exceeded. Others asked that permitting authorities be given b road discretion to determine what if any follow up is appropriate base d on the existence of a

QIP.

One commenter argued that the approach to counting a second QIP as a violation, in conjunction with the CE rule, places a source in an untenable situation. According to this commenter, if the sou rce sets the indicator levels low it runs the risk of this QIP violation, but if the levels are set closer to the emission limit, the credibility of th e data increases and the source's potential liability increases. The commen ter added that the combination of the CE rule and the second QIP appro ach may force an

owner to choose an indicator level that is not main tainable or choose between triggering a second QIP or operating at a s afe level. The commenter suggest that EPA either abandon the CE ru le, or increase the flexibility of triggering a QIP. Another option re commended by the commenter was to require a performance test as a pr erequisite for determining a violation or imposing a penalty.

Several commenters argued that it is not necessary to make a second QIP a violation. Commenters who noted that EPA expr essed concern at the September 10, 1996 stakeholder meeting that som e sources may trigger the QIP requirement and then continuously i mplement numerous ineffective QIPs argued that EPA's existing large a rsenal of enforcement weapons under the Act is sufficient to address this concern and that a source that repeatedly triggers the QIP requirement makes itself an enforcement priority. The commenters added that so urces will want to avoid the lengthy QIP process, which requires them to comply with milestones and procedural requirements. One commen ter asserted that an agency should require a performance test if it b elieves a source is exceeding an underlying standard. Another commente r proposed that a source be allowed to "wipe the CAM slate clear" by voluntarily conducting

a test.CAM RTC (Part III)

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One commenter stated that there is no need for CAM to attempt to be an all-encompassing enforcement mechanism for defining exactly how sources and permitting authorities will relate to e ach other and that the second QIP as a deviation approach is inconsistent with the hazardous organic NESHAP which allows multiple "QIPs" to occu r. Finally, a commenter argued that the requirement to continue i mplementing the CAM plan and to take corrective action during the Q IP, and the permitting authorities' ability to disapprove a CAM plan as in adequate if the source cannot show through the QIP that it is adequate, ar e sufficient to ensure that controls are properly operated and maintained and that the QIP procedure is not overused.

Commenters described the decision to count a second QIP as a violation as unrealistic, counterproductive and possibly ille gal. One commenter stated that pollution control equipment can be affe cted by different factors at different times and that a single QIP should not and cannot be expected to address all of these factors. Therefore , the commenter argued that a second QIP does not necessarily indic ate that the first QIP was inappropriate or unsuccessful.

A number of commenters made recommendations to chan ge this provision to increase the number of QIPs allowed. S pecific limits on the number of QIPs that should be allowed in a permit t erm before it is considered a failure to comply with permit terms an d conditions ranged from two to ten (with permitting authority to adjus t the specified level up or down).

Other commenters focused on differentiating between situations where a

QIP should count toward the number allowed and situ ations where it should not. Commenters stated that the implementati on of a QIP during a permit term should not be considered a violation if an applicable emission

limit has not been exceeded. One commenter asked t hat EPA allow at least one "free" QIP in the first year to fix CAM d evelopment problems and then allow two or three QIPs for legitimate process or operating changes that may require redefinition of the CAM plan. Ano ther commenter stated that if EPA insists on keeping the second QIP as a trigger of an

enforceable violation, excursions that occur while the first QIP is being implemented should not count in determining whether a second QIP is triggered. A commenter recommended that, as an alt ernative, EPA could allow any operator-initiated QIP to be "free" if th e operator notifies EPA prior to exceeding 75 percent of the QIP threshold in order to provide anCAM RTC (Part III)

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incentive for early correction. Another commenter stated that EPA should consider allowing a third or fourth QIP befo re imposing any sanction if: 1) the cause of the second QIP is diff erent from the first one; 2) the permitting authority, at its discretion, det ermines that the source exhibited a good faith effort but was unable to com ply, especially due to initial operational learning curve difficulties; an d 3) the second trigger occurred within a transition period specified in th e permit. Similarly, a commenter noted that monitoring system failures cou ld be the result of very different causes, such as sampling equipment p lugging, sensor aging, and even seasonal extreme temperatures and r ecommended using criteria such as "repetitive QIPs for the same or s imilar failures" and "potential environmental impact" to determine when the triggering of a QIP should be a permit violation.

A commenter argued that since the CAM rule is a new program, there will be insufficient data to establish appropriate indic ator ranges in the initial permit for many sources. Similarly, a commenter st ated that exceedances of the QIP threshold will be the likely result of the trial and error process of establishing the proper ranges. A state agency commenter argued that the rule should allow for som e flexibility to address extenuating and/or unforeseen circumstances and that the second QIP should place a source on notice that fur ther deviations will most likely result in formal action.

A few commenters supported reducing the time period for limiting an owner or operator to one QIP. One commenter sugges ted changing the time period from the 5 year permit term to three ye ars or less. Two other commenters agreed that a three year time period wou ld be appropriate if EPA does not adopt the option of having the second QIP in a permit term be approved by a permitting authority but not consi dered an automatic permit violation.

One commenter noted that the monitoring under part 64 for many emissions units may involve complex interrelationsh ips that will have to be fine-tuned, especially in the initial years after s tartup of the monitoring. The commenter recommended deleting this provision, but stated that, if a

set number of QIPs has to be established, the rule should allow the source to propose a reasonable number of QIPs subje ct to review and approval by the permitting authority.CAM RTC (Part III)

October 2, 1997 Page 138

Another commenter proposed two alternative approach es to dealing with the problems associated with designating the second QIP in a permit term as a permit violation: either eliminating the provi sions in § 64.3(b)(4) which make the second QIP a violation or basing the QIP t rigger on only true

exceedances of an emission limitation or standard. The commenter also suggested a phased in allowance of QIPs per permit term which would allow more QIPs which do not trigger a permit viola tion in the early years of the first operating permit. According to the co mmenter this approach would allow sources to experiment with CAM plans an d develop the most appropriate indicator ranges during initial CAM imp lementation. The commenter added that a similar approach could be em ployed when changes in source operations require modifications to a source's CAM plan.

One state agency argued that states should have the flexibility to decide when the triggering of a QIP constitutes a violatio n since they might want to consider a single QIP a violation in some cases while not considering

the second QIP a violation in others. Another com menter asked that EPA leave it to permitting authority discretion to determine if any situation resulting in the triggering of a QIP should constit ute a violation of the "general duty" or if that duty should not be specif ically tied to the QIP process. A few commenters recommended allowing loc al agencies to determine how many QIPs constitute a violation, bas ed on their existing programs, which may result in the threshold being m uch higher than two events. They also asked that the provision require for an increased monitoring regime rather than enforcement, and that the increased monitoring regime only be required where the excurs ions involve significant magnitude (40-60 percent of the indicat or range).

Response: The Agency decided to delete the draft re quirement that a second QIP

during a permit term constitutes a violation. The final rule, consistent with the precedent of 40 CFR 60.11(d), provides for the general use of part 64

data and other information to document that the own er or operator has failed to operate and maintain an emission unit pro perly and provides for the QIP mechanism as one option for addressing situ ations in which such a failure has occurred. In that respect, any time a QIP is required there will be an underlying finding that the owner or ope rator has failed to take appropriate action and may be subject to enforcemen t for that violation.

Thus, there is no need for the final rule to includ e separate enforcement consequences related to multiple QIPs.CAM RTC (Part III)

October 2, 1997 Page 139

Letter(s): Air Products and Chemicals, Inc. (VI-D-1 86); Air Control Techniques, P.C.

(VI-D-202); American Automobile Manufacturers Assoc iation (VI-D-157); Association of Battery Recyclers (VI-D-155); Califo rnia Association of Sanitation Agencies (VI-D-206); Can Manufacturers I nstitute (VI-D-181); Can Manufacturers Institute (VI-D-262); Chemical Ma nufacturers Association (VI-D-152); Chevron Companies (VI-D-132 ); Class of '85 Regulatory Response Group (VI-D-161); Clean Air Imp lementation Project (VI-D-153); Coalition for Clean Air Implementation (VI-D-164); Colorado Association of Commerce and Industry (VI-D-182); Co operative Power Corporation (VI-D-208); County Sanitation Districts of Orange County, California (VI-D-231); County Sanitation Districts of Los Angeles County (VI-D-232); Department of Energy (VI-D-196); DuPont Engineering (VI-D-127); Duquesne Light (VI-D-138); Eastman Chem ical Company (VI-D-173); Eli Lilly Company VI-D-124); Exxon Com pany, USA (VI-D-135); General Electric Company (VI-D-156); Ha waiian Electric Company, Inc. (VI-D- 165); Houston Lighting & Power Company (VI-D-228); Independent Liquid Terminals Associatio n (VI-D-178); KBN Engineering and Applied Sciences, Inc. (VI-D-229); Minnesota Pollution Control Agency (VI-D-197); Mobil Corporation (VI-D- 115); National Environmental Development Association (VI-D-169); N atural Gas Pipeline Company of America (VI-D-118); Ohio Chamber of Comm erce et al (VI-D-160); Pharmaceutical Research and Manufacture rs of America (VI-D-217); R.R. Donnelley & Sons Company (VI-D-221 ); Rubber Manufacturers Association (VI-D-149); Southern Comp any Services (VI-D-171); Southern California Gas Company (VI-D-2 22); Southwestern Public Service Company (VI-D-224); Specialty Steel Industry of North America (VI-D-143); State of Illinois EPA (VI-D-183 ); Steel Manufacturers Association (SMA) (VI-D-144); Tennessee Valley Auth ority (VI-D-162); Texaco Environment Health & Safety (VI-D-199); Tex as Chemical Council (VI-D-236); Texas Natural Resource Conserva tion Commission (VI-D-189); Texas Title V Planning Committee (VI-D- 188); Texas Utilities Services, Inc. (VI-D-121); The Society of the Plast ics Industry (VI-D-148); The Fertilizer Institute (VI-D-145); Total Petroleu m, Inc. (VI-D-190); Tri-TAC (VI-D-225); Utility Air Regulatory Group (V I-D-140); Wellman, Inc. (VI-D-237); Wisconsin Electric Power Company (VI-D- 130)

Comment b: A number of commenters stated that in li eu of considering the second QIP

as a violation, the permitting authority should be able to require that it be implemented only through an approval process and in clude an enforceable schedule with specific milestones and c ompletion dates.CAM RTC (Part III)

October 2, 1997 Page 140

One commenter argued that although it is not really necessary for the reasons discussed in other points, an approval proc ess for subsequent QIPs would be preferable to considering the second QIP to be a violation. A state agency and other commenters also supported this alternative noting that other proposed options may hinder permi tting authorities from taking appropriate enforcement actions other than t he implementation of a QIP to respond to deviations.

One state agency expressed opposition to option of implementing a facility's second QIP in a permit term through a pe rmitting authority approval process. This commenter felt that requirin g state review of QIPS would delay needed corrective action and strain lim ited state resources since the procedure which a facility would have to follow to develop a plan, obtain state approval after reviewal and nego tiation, and implement the plan could take as much as 18 months. The comm enter argued that facility efforts would be better spent by actually taking corrective action, following the procedures laid out in the QIP requir ements, instead of complying with bureaucratic requirements. Accordin g to the commenter state resources would also be poorly utilized in a step-by-step review of corrective action which should be quickly resolved through a site-specific technical process. This commenter suggested that s tates should retain the ability to enforce permit terms as necessary to ensure that QIP requirements are followed and should become directl y involved in the QIP process only where serious violations are connected to problems which will require long-term and complex corrective actio n.

Response: The Agency agrees that the permitting aut hority should have more

flexibility in determining appropriate response to persistent or acute compliance problems. Because of this, EPA has deci ded not to include the provisions regarding the QIP as a required resp onse or the violation

associated with the second QIP in the final rule. No further response to these comments is necessary.

Letter(s): Department of Energy (VI-D-196); Georgia Department of Natural

Resources (VI-D-193); State of New Jersey Dept. of Environmental Protection (VI-D-215); Niagara Mohawk (VI-D-168); S pecialty Steel Industry of North America (VI-D-143); Steel Manufac turers Association (SMA) (VI-D-144); Tennessee Valley Authority (VI-D- 162)

3.2.3.2: QIP Period as DeviationCAM RTC (Part III)

October 2, 1997 Page 141

Comment a: A number of commenters stated that the p eriod of time necessary to

implement a QIP should not be considered an ongoing deviation. A few commenters argued that since both the permitting au thority and the owner/operator believed that the initial CAM plan w as based on valid assumptions, the QIP process of evaluation and corr ective action can be expected to take some time. These commenters belie ved that period of

time should not be considered a deviation where the owner/operator acts quickly and in good faith to implement a revised CA M program. Other commenters added that these requirements will disco urage sources from creating aggressive CAM plans that might result in QIPs. A commenter concluded that by implementing a QIP, the source is doing exactly what is intended, i.e., detecting potential problems and th en fixing them. The commenter stated that reporting the period of time during a QIP as a deviation applies a negative and potentially miscon strued label to appropriate behavior.

Two commenters argued that the triggering of a QIP does not necessarily mean that the source is experiencing compliance pro blems. In addition, they stated that triggering the QIP already exposes a source to greater scrutiny, and therefore there is no need to repeat that concern as an exception to compliance in a certification. Commen ters noted that the duration of excursions which triggered a QIP may al ready be identified as part of a QIP. A few commenters argued that only t hose periods of time during a QIP in which true exceedances occur should be identified as exceptions to the compliance certification. Simila rly, others stated that a source should only report as a deviation any period during implementation

of a QIP that the source is outside established ind icator ranges. One commenter argued that once the deviation is correct ed, there is no basis for requiring the owner or operator to report the r emaining period of time during QIP implementation as a deviation.

Response: The final rule better describes the QIP t wo-part process that includes both

an evaluation step and the corrective action necess ary. The final rule provides that a QIP trigger may be set in the permi t but does not require it. Where such a trigger is used, a level of 5 percent is suggested as a potentially appropriate threshold. The status of c ompliance during a period of a QIP is left to the permitting authority ’s discretion.

Letter(s): Air Control Techniques, P.C. (VI-D-202); American Automobile

Manufacturers Association (VI-D-157); American Gas AssociationCAM RTC (Part III)

October 2, 1997 Page 142

(VI-D-154); Can Manufacturers Institute (VI-D-181); Cinergy Corp. (VI-D-141); Colorado Association of Commerce and In dustry (VI-D-182); Coastal Corporation (VI-D-123); Eli Lilly Company VI-D-124); General Electric Company (VI-D-156); Houston Lighting & Pow er Company (VI-D-228); National Environmental Development Asso ciation (VI-D-169); Southern Company Services (VI-D-171); Specialty St eel Industry of North America (VI-D-143); State of Illinois EPA (VI -D-183); Steel Manufacturers Association (SMA) (VI-D-144); Utility Air Regulatory Group (VI-D-140); Virginia Power (VI-D-226)

3.2.3.3: Requests for Clarification

Comment a: An environmental organization asked that EPA specify how the provision

regarding multiple QIPs in a reporting period may b e used in certain circumstances. The commenter questioned whether a source that has a continuous excursion for 10 percent of its operatin g time will be treated as only having gone beyond the QIP threshold once. Th is commenter also

stated that the result of this is that the source h as no incentive to bring their parameters back into the appropriate range qu ickly once they have

entered a QIP. The commenter concluded that withou t clear criteria and state resources for review, the provision for findi ng a source that requires a second QIP within the reporting period to be in v iolation is only another reason for sources to design lenient CAM plans that will detect no

excursions.

Response: The Agency believes that the final rule a dequately describes the criteria

for establishing indicator ranges. The final rule provides for no specific duration trigger and provides that a QIP is an enfo rcement tool, rather than a specific permit requirement, that may be req uired after a determination by the permitting authority or the Ad ministrator that a source owner or operator has failed to conduct prop er operation and maintenance as documented through part 64 monitorin g and other available information. In this respect, the QIP pr ovisions are analogous to existing corrective action remedies available to address compliance problems.

Letter(s): Natural Resources Defense Council (VI-D- 151)CAM RTC (Part III)

October 2, 1997 Page 143

Comment b: One commenter stated that it should be c larified that excursions

occurring during the implementation of the first Q IP should not be considered to trigger the need for a second QIP. Response: The QIP process has been provided in the final rule only as an option and

thus no further response to this comment is necessa ry.

Letter(s): Virginia Power (VI-D-226)

Comment c: A commenter asked how, under § 64.3(b)(4 ), QIPs apply to units covered

by Subpart C. The commenter stated that it did not understand how an owner or operator would establish a QIP threshold, or implement a QIP, for a recordkeeping requirement or for a PSEU for w hich no monitoring has been required under Subpart C.

Response: The Agency agrees that the QIP process as described in the final rule is

not readily applicable if no part 64 monitoring or other monitoring

information is available. As the final rule no lon ger includes specific monitoring requirements for subpart C units, furthe r response on this point is unnecessary.

Letter(s): Utility Air Regulatory Group (VI-D-140)

3.2.4: Permit Modification - Deficient Monitoring ( 64.3(b)(5))

Comment a: Some commenters stated that sources shou ld not be required to notify the

permitting authority and modify CAM if deviations o ccur that are not detected by CAM. These commenters interpreted this requirement as imposing an unending, standardless duty on sources to monitor the adequacy of their approved monitoring, and to propo se changes based on any deviation, no matter how small, inconsequential or uncorrelated to actual compliance the deviation may be. Others sta ted that the requirement to notify the permitting authority of d eviations under CAM is duplicative of part 70 notice requirements. A comm enter argued that this requirement allows for no analysis of the cause of deviations, which may not even be violations of applicable requirements, and requiring immediate modification of the monitoring plan elimi nates source and permitting authority flexibility to determine the p roper approach to the deviation or indicator range discrepancy. Addressin g such problems during permit renewal would allow for a more calcul ated response whichCAM RTC (Part III)

October 2, 1997 Page 144

may make use of new or innovative technology develo ped in the interim according to the commenter. One local permitting authority argued that permit r evisions required under § 64.3(b)(5) should be treated as administrative pe rmit revisions which would prevent delays in the use of correct monitori ng methods.

A commenter opposed having to process indicator ran ge changes as permit revisions arguing that the concept of CAM sh ould be to assure compliance with Title V applicable requirements, no t create new ones. (See related comments under section 3.2.1.)

Two commenters were concerned that the obligation t o tighten CAM plans appears to make it harder to loosen CAM requirement s than tighten them, even where there is no technical justification to d o so. The commenters argued that the rule must allow a source to modify its approved monitoring if the initially established indicator ranges are t oo stringent (e.g ., if testing shows that no violation occurs at less stringent in dicator ranges).

Response: As mentioned in Section II.F. of the prea mble to the final rule, the Agency

disagrees with the commenters’ suggestions to not r equire notification of the permitting authority and modification of CAM if deviations occur that are not detected by part 64 monitoring. The final rule clarifies this requirement, however. First, the rule requires not ice and proposed monitoring modifications if an owner or operator di scovers a failure to

meet an emission limitation or standard if that fai lure was not detected by part 64 monitoring during a period in which the mon itoring was providing valid data. Similarly, where compliance method tes ting indicates the need to revise indicator ranges, notice will be req uired. A permit modification will be required unless the permit spe cifies the process by which indicator ranges will be adjusted based on co mpliance testing. Both of these situations represent clear deficienci es in approved monitoring that must be corrected to achieve the re asonable assurance of compliance intended by part 64.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Coalition for

Clean Air Implementation (VI-D-164); DuPont Enginee ring (VI-D-127); General Electric Company (VI-D-156); Ohio Chamber o f Commerce et al (VI-D-160); South Coast Air Quality Management Dist rict (VI-D-233); Texas Chemical Council (VI-D-236); UCAR Carbon Comp any, Inc. (VI-D-122)CAM RTC (Part III)

October 2, 1997 Page 145

3.2.5: Compliance Schedule

Comment a: Some commenters supported EPA's decision not to require monitoring to

be operational at the time it is approved. One com menter commended EPA for recognizing both that sources do not wish t o invest substantial resources into complex, expensive monitoring until they know it has been approved by the permitting authority, and that moni toring protocols may require time to install and shake down. Other comm enters recommended that the rule provide explicitly for a shakedown period. They stated that monitoring equipment, just like al l other equipment, may need a shakedown period (such as 30 days) to assure that the equipment is working properly, and that § 64.8(e) should spec ifically allow for this type of shakedown period.

A commenter suggested that EPA delete the reference to enforceable

milestones, which EPA did not include in the Part 6 3 General Provisions. A commenter stated that the § 64.8(e) requirement t o submit an implementation plan and schedule for the installati on and testing of monitoring is unnecessary because notification to p ermitting authorities prior to the installation or testing of monitoring is generally required, and there is no justification for making this requireme nt more stringent than other post-1990 CAA regulations. The commenter ask ed that EPA clarify that this provision does not require documentation of implementation and testing activities for existing monitoring, and rec ommended deleting the phrase "or other appropriate activities" because it is overly vague. Another commenter who objected to the use of enforc eable compliance plans suggested that sources who lack adequate data should be allowed to collect data for one year, or some other reasona ble period, before indicator ranges are set.

A commenter recommended that sources be required to implement CAM at the next scheduled shutdown where implementation involves the need for shutdown. The commenter stated that requiring a plant shutdown just to install and startup CAM is not economically just ified and could cause environmental impact associated with an additional startup and shutdown.

One commenter stated that EPA should provide a mech anism for altering the schedule without a permit modification since un expected problems

can arise such as where "final verification" shows that changes are necessary or installation is delayed because parts are unavailable.CAM RTC (Part III)

October 2, 1997 Page 146

Because the normal permit modification process will be far too slow and cumbersome to provide relief, this commenters belie ved that a simple and quick process such as sending a letter to the permi tting authority is

needed.

Response: The Agency believes that the period, allo wed by the final rule, of up to 180

days beyond the date of permit issuance, should ful fill the commenters’ suggestion for a monitoring installation and shaked own period. The Agency disagrees with the commenter’s suggestion th at the reference to

enforceable milestones should be deleted, since the y are a necessary part of the part 70 operating permits program. Fin ally, the Agency believes that the phased-in implementation of part 64 should meet the commenters’ suggestions for an orderly implementati on process. Letter(s): Air Products and Chemicals, Inc. (VI-D-1 86); American Automobile

Manufacturers Association (VI-D-157); Chemical Manu facturers Association (VI-D-152); Dow Chemical Company (VI-D- 120); General Electric Company (VI-D-156); National Environmental Development Association (VI-D-169); Texas Chemical Council (VI- D-236); Union Carbide Corporation VI-D-170)

Section 3.3: Operation of Monitoring

Comment a: An industry coalition and another commen ter recommended deleting the

requirement of § 64.3(c)(3) that all data gathered must be used for CAM purposes except data recorded during periods of mon itor malfunction,

maintenance, etc. These commenters stated that rule writers and permitting authorities routinely make special allow ances for infrequent fluctuations in operations, and that EPA should not use CAM to override a unit's alternative compliance plans or excused emis sions excursions.

Response: The Agency disagrees with the commenters’ suggestion that some valid

data not be used in assessing the operation of the control devices and associated control systems. This suggestion has no t been incorporated in the rule, although, as mentioned before, the lan guage in § 64.3(c)(3) of the 1996 part 64 Draft has been moved to § 64.7(c) of the final rule. The

issue of how to evaluate the data based on the reas on for any reported excursion or exceedance is separate from the issue of what data to include in data averages. Letter(s): Clean Air Implementation Project (VI-D-1 53); Eastman Chemical

Company (VI-D-173)CAM RTC (Part III)

October 2, 1997 Page 147

Comment b: Other commenters recommended various rev isions to § 64.3(c)(3). A comme

during calibrations). The commenter suggested using a different criterion, such as activities that "temporarily prevent the mo nitoring of source emissions or parameters." Another commenter added that the provision in § 64.3(c)(3) which requires the source to operat e the monitoring in accordance with its design is open-ended and undefi ned, and should be

deleted.

Response: The final rule refers specifically to cal ibration checks and, if applicable,

zero and span adjustments. This provision is consi stent with existing provisions such as § 60.13(e).

Letter(s): Coalition for Clean Air Implementation ( VI-D-164); Utility Air Regulatory

Group (VI-D-140)

Comment c: One commenter argued that the rule shoul d also not require monitoring

during startup, shutdown, or malfunction, explainin g that such a revision would reflect many regulations, such as recent NSPS and MACT standards, which specifically exempt compliance wit h the standards during such periods. A commenter requested that da ta collected during malfunctions and especially those collected during startup and shutdown not be used for part 64 because these emissions are not representative of the actual operation conditions. A commenter added that data for these conditions should not be used for calculating data averages unless the underlying requirement requires compliance during s uch periods.

Response: As discussed in Section III.G.1 of the pr eamble to the final rule, the

Agency disagrees with comments that the rule exempt the source owner or operator from having to conduct monitoring durin g periods when the source is not required to comply with the underlyin g standard. Owners and operators remain responsible for operating and maintaining their sources in accordance with good air pollution contr ol practices for minimizing emissions during all periods of operatio n - including conditions such as startup and shutdown. Data from part 64 mo nitoring is essential to evaluate adherence to that responsibility.

Letter(s): Air Products and Chemicals, Inc. (VI-D-1 86); County Sanitation Districts of

Orange County, California (VI-D-231); Texas Chemica l Council (VI-D-236)CAM RTC (Part III)

October 2, 1997 Page 148

Comment d: One commenter was concerned with the use of data collected during monitor

64.3(c)(2) and (3), data collected during such peri ods cannot be used for part 64 purposes, including data averages or for sa tisfying a data availability requirement. The commenter concluded that part 64 should be amended to explicitly state that data collected during such times or

under such conditions cannot be used for enforcemen t purposes.

Response: The Agency disagrees with the commenter’s suggestion. While use of

data collected during the identified periods may no t be useful for purposes of part 64, neither the owner or operator nor the A gency, as noted in the credible evidence discussion of the preamble, is pr ecluded from using any data collected for other purposes. However, as a p ractical matter, the ability to use invalid data to document compliance or a violation will be severely limited because of the poor reliability of any such data.

Letter(s): Wellman, Inc. (VI-D-237)

Comment e: A commenter recommended the creation of provisions allowing extra time

for the repair of monitoring systems. The commente r stated that at an operating plant repairs of certain monitoring syste ms may require shutdown of major equipment, and suggested that lik e the Ozone Depleting Substance (ODS) rule, the CAM rule should allow extra time to get monitoring systems repaired.

Response: The Agency believes the final rule allows owners or operators flexibility

where needed to repair monitoring systems, and ther efore disagrees with the commenter’s suggestion. While the rule require s owners or operators to maintain necessary parts for routine repairs of monitoring equipment, the rule also allows restoration of pollutant-speci fic emissions unit operation to normal or usual manner of operation as expeditiously as practicable and establishment of compliance schedul es with enforceable milestones for installation, testing, and verificat ion of new monitoring systems which may be needed if existing monitoring systems cannot be repaired.

Letter(s): Occidental Chemical Corporation (VI-D-16 6)CAM RTC (Part III)

October 2, 1997 Page 149

Comment f: One commenter described this requirement as more objective than the

previous draft which it argued gave undue weight to manufacturer's requirements. However, several other commenters re commended deleting or modifying the general duty to properly operate and maintain monitoring in § 64.3(c)(2). Some commenters argued that this is yet another enforceable requirement for which the owner or operator could be in violation even though the owner has not violated any underlying substantive requirement. The commenters added that this requirement is arbitrary because there is no standard against whic h compliance can be judged. A commenter specified that the requirement to maintain spare parts on site is especially troubling because it ru ns counter to just-in-time inventory approaches and sources may not have adequ ate storage for such parts. Another commenter agreed that the requ irement to maintain spare parts should be deleted because it is the sou rce's obligation to assure compliance and how a source operates and mai ntains its equipment to achieve compliance is best left to the source. One commenter stated that the requirement to maintain a nd operate "monitoring" in a manner consistent with "good air pollution control practices" does not make sense, because monitoring is not an air pollution control device. The commenter suggested that different language should be used in this context.

Response: The Agency disagrees that proper operatio n or maintenance of monitoring

is not a substantive activity, particularly with re spect to assuring compliance. The requirement for proper operation ( as opposed to maintenance) of monitoring has been removed from § 64.7(b) of the final rule (the provision analogous to § 64.3(c)(2) of th e 1996 part 64 Draft), not because such a requirement is irrelevant, but becau se continued operation of monitoring is addressed in § 64.7(c). The Agency agrees that on-site storage of spare monitoring parts coul d be viewed as overly restrictive, so that requirement has been removed f rom the rule. Instead the rule contains a duty to maintain parts - withou t a required location for those parts - for routine repairs to monitoring sys tems. Parts for routine repairs could be maintained on-site, off-site, or e ven through contracts with third-party vendors.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); American

Gas Association (VI-D-154); General Electric Compan y (VI-D-156); Ohio Chamber of Commerce et al (VI-D-160); UCAR Carbon C ompany, Inc. (VI-D-122); Utility Air Regulatory Group (VI-D-140)CAM RTC (Part III)

October 2, 1997 Page 150

Comment g: One commenter supported including statem ents that monitoring is not

required during certain specified periods. The com menter argued that although it may seem self-evident, it has not been universally recognized under other regulations that monitoring is not requ ired during periods of non-operation, and this should be clearly stated ra ther than implied. The commenter also stated that EPA should provide that CAM monitoring is not required when monitoring is not required by the underlying emission standard. The commenter argued that HON and recent MACT standards provide that emission control requirements includin g monitoring do not apply during start-up, shutdown and malfunction, an d that owner/operators are required to follow start-up, sh utdown, malfunction plans instead. The commenter stated that the CAM r ule should not increase stringency by taking away this kind of fle xibility noting that new MACT standards will not be required to comply with CAM, but that this concept is probably not unique to Part 63. The com menter added that EPA should go one step further and provide that CAM -type monitoring is not required during start-up, shutdown, and malfunc tion generally. The commenter objected that situations for which the dr aft rule does not require monitoring as described in § 64.3(c)(3) dea l only with problems with the monitoring system.

Response: Section 64.7(c) explicitly states that mo nitoring need only be conducted

when the emissions unit is operating. However, as discussed in response to Comment c, above, the Agency disagrees with not requiring monitoring during start-up, shutdown or malfunction periods.

Letter(s): Dow Chemical Company (VI-D-120)

Section 3.4: Existing Monitoring

Comment a: A commenter supported EPA for establishi ng a process by which CAM

monitoring can replace existing monitoring. The com menter explained that sources have widely recognized that instances exist where the information produced by required monitoring could be generated equally well or better by alternative approaches and that this provision o f the CAM proposal

allows sources to make that demonstration. Another commenter, however, argued that the process for reviewing exis ting monitoring to determine if it meets CAM requirements is burdensom e. The commenter noted that sources are required to review existing monitoring on aCAM RTC (Part III)

October 2, 1997 Page 151

pollutant-specific and on an emission unit-specific basis, and that since CAM plan elements are included in Title V permits, states will then have to review each determination during the permitting pro cess. This commenter stated that even with suitable guidance m aterials, this will put a great burden on states given their limited resour ces.

Response: The Agency believes the ability to stream line multiple monitoring

requirements, as expressed in the revision to § 70. 6(a)(3)(i)(A), will tend to reduce, rather than increase, the monitoring develo pment and operation burden for permitting authorities and owners or ope rators. Should permitting authorities find that their review burde n exceeds the resources derived from emission fees, permitting authorities are able to increase their fees to cover any extra expenses.

Letter(s): Chemical Manufacturers Association (VI-D -152); Pharmaceutical

Research and Manufacturers of America (VI-D-217)

Comment b: Some utility commenters stated that unit s using existing monitoring to

satisfy CAM rule requirements should be able to ref er to existing documents and protocols in their operating permits instead of creating duplicative documentation to satisfy CAM requiremen ts. In particular, they argued that units which are subject to Part 75 emissions monitoring requirements must develop specific QA/QC plans and maintain monitoring

data in certain formats, and that if such units use Part 75 monitoring requirements to demonstrate compliance with non-Aci d Rain standards, information and procedures developed to satisfy Par t 75 should not have to be recreated in a different format to satisfy Pa rt 64. These commenters stated that requiring the reformatting o r recreation of this

information would violate Executive Order 12866, di recting federal agencies to "avoid regulations that are . . . dupli cative with [their] other regulations or those of other Federal agencies." E. O. 12866, 58 Fed. Reg. 51,735 (Sept. 20, 1993). One commenter added that the rule should not be permissive in regard to the sufficiency of Title IV CEMS for CAM purposes, but should explicitly state that this mon itoring fulfills CAM requirements.

A commenter raised the question of whether CAM plan s should be developed based on the more rigorous requirements. The commenter requested that CAM give the permitting authority th e flexibility to decide which level of monitoring is required that is consi stent with the federal andCAM RTC (Part III)

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State rules. For example, where CEMS are not requir ed but have been installed anyway, the facilities should be able to evaluate and implement alternative monitoring systems such as PEMS accordi ng to this

commenter.

Response: The Agency agrees that existing monitorin g requirements are an

appropriate starting point for CAM development. Th e Agency notes that part 64 does not preclude use of references to exis ting monitoring documentation and that the part 64 requirements do not apply to Acid Rain Program requirements. The Agency disagrees wi th the commenter’s suggestion that an owner or operator ha s the ability to propose monitoring different than required CEMS, CO MS, or PEMS. As mentioned in the preamble to the final rule, use o f monitoring systems such as CEMS, COMS, or PEMS is preferable for CAM b ecause they provide data directly in terms of the applicable em ission limitation or standard. A request to use an alternative monitori ng system in these circumstances must be made through the procedures c ontained in the underlying applicable requirement, not part 64.

Letter(s): Cooperative Power Corporation (VI-D-208) ; County Sanitation Districts of

Orange County, California (VI-D-231); Duquesne Ligh t (VI-D-138); Southwestern Public Service Company (VI-D-224)

Section 3.5: Costs to Permitters/Programmatic Opti on

3.5.1: Problems with Case-by-case Review

Comment a: A number of commenters stated that EPA s hould minimize the need for

case-by-case review. Commenters cited the great res ource burden on state and local air agencies that will be associate d with case-by-case review of CAM plans. Two commenters pointed to EPA ’s decision to exempt post-1990 rules as already satisfying CAM re quirements, stating that EPA has recognized that a one-time regulatory program review is preferable to the more time-consuming case-by-case review.

One commenter argued that industry continues to bel ieve that the best solution is for EPA to implement the CAM rule throu gh individual rules as EPA has implemented monitoring in the past. The com menter stated that EPA has not shown that the case-by-case approach is less burdensome, permitting authorities do not have the resources to do it, and theCAM RTC (Part III)

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case-by-case approach fails to provide similar trea tment for similar sources or allow for consideration of stringency is sues. Another commenter stated generally that if EPA believes tha t current rules are inadequate, EPA should revise the underlying rules. This commenter asserted that at a minimum, if EPA proceeds with CA M, it should repeal existing monitoring.

Commenters were concerned that CAM plan review cann ot be done properly considering limited resources. A commenter argued that state and local agencies do not have the resources to bec ome expert in and evaluate operations at the large number of sources subject to the rule. The commenter questioned where permitting authoriti es will find personnel who are technically competent for this ta sk and whether Title V permit fees will be sufficient to cover the costs a ssociated with this job. An environmental organization added that even assuming that uncorrelated parameter measurements could be adequate, permittin g authorities do

not have the time and resources needed to review so urces' proposals. A California commenter expressed concern that local a ir pollution control districts will lack the resources necessary to impl ement CAM. This commenter referred to the comments of Texas represe ntatives at the September 1996 stakeholder meeting who estimated th at Texas, for example, has approximately 3,000 major sources and will have to negotiate the approval of approximately 300,000 CAM plans. The

commenter stated that with the resources of local a gencies will be committed to CAM implementation, important and inno vative local air quality improvement efforts may be abandoned. An a ssociation of state and local agencies and a local agency added that di viding sources into several "enforcement categories" according to the c urrent level of monitoring would simplify review and reduce the res ource burden.

Response: The final rule allows permitting authorit ies the flexibility to develop

programmatic rule changes for CAM implementation. The Agency believes the use of such programmatic approaches co uld minimize permitting authorities’ resource burden associated with case-by-case review. In addition, the Agency believes that the amount of time spent on case-by-case review will decrease as permitting aut horities develop expertise with CAM rule requirements and commonly u sed control devices. See Section I.C.2.d. of the preamble to th e final rule for further

discussion.CAM RTC (Part III)

October 2, 1997 Page 154

Letter(s): American Public Power Association (VI-D- 158); Cinergy Corp. (VI-D-141);

City of Jacksonville AWQD (VI-D-272); County Sanita tion Districts of Los Angeles County (VI-D-232); Institute of Clean Air C ompanies (VI-D-139); National Environmental Development Association (VI- D-169); Natural Resources Defense Council (VI-D-151); Southern Cali fornia Gas Company (VI-D-222); STAPPA/ALAPCO (VI-D-179); STAPP A/ALAPCO (VI-D-274); Texas Title V Planning Committee (VI-D- 188); Texas Chemical Council (VI-D-236)

Comment b: Several commenters supported the use of programmatic rulemaking to

establish CAM requirements in order to avoid proble ms of consistency and the potential overwhelming of the Title V progr am associated with case-by-case review of CAM plans. Commenters state d that permitting authorities should have the option to implement CAM on a rule-by-rule programmatic basis. One commenter noted that EPA h as taken a programmatic approach for other programs through SI Ps. According to one state commenter, in addition to reducing the re source burden, the programmatic approach provides the following benefi ts: a minimized burden on the Title V permitting process, more effi cient EPA and public review, a greater consistency in determining what c onstitutes compliance with CAM, improved air quality planning, improved c larity and certainty of enforcement, and a more timely compliance with CAM requirements. In supplemental comments, this state agency renewed it s support for a programmatic approach citing the increased pressure that the CE rule would place upon case-by-case negotiations. Other commenters argued that no compliance assurance program is necessary, but that if one is to be promulgated, a one-time programmatic approach wo uld be far more administratively efficient than thousands of case-b y-case reviews of individual CAM plans.

Response: See response to Comment a, above.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); ASARCO

Incorporated (VI-D-187); Chemical Manufacturers Ass ociation (VI-D-152); County Sanitation Districts of Los Angeles County ( VI-D-232); Gas Processors Association (VI-D-163); General Electric Company (VI-D-156); Louisiana Mid-Continent Oil and Gas Association (VI -D-184); Phillips Petroleum Company (VI-D-131); Texas Title V Plannin g Committee (VI-D-188); Texas Natural Resource Conservation Com mission (VI-D-189); Texas Natural Resource Conservation Com mission (VI-D-256)CAM RTC (Part III)

October 2, 1997 Page 155

3.5.2: Programmatic Option

Comment a: Commenters supporting a programmatic opt ion argued that this means of

implementation would be superior to case-by-case re view. They stated that such an approach would be substantially less c ostly, to both permitting authorities and the regulated industry, than a case-by-case approach. In addition, administrative resources wi ll be further conserved because a programmatic approach allows states to bu ild on existing programs rather than creating needlessly duplicativ e programs to satisfy CAM. Other commenters agreed that the programmatic approach would decrease the likelihood of redundant programs. The commenters noted that some permitting authorities have developed sou rce-specific regulations that address all aspects of compliance monitoring and they recommended allowing permitting authorities to impl ement CAM by modifying their existing rules. One commenter stat ed that, for example, the source-specific rules that are already adopted in the SIP should meet CAM requirements without having to develop separate source-specific CAM plans. Another commenter cited the comprehensi ve program in Texas that requires sources to conduct proper O&M o f control devices to assure compliance as an example of an existing prog ram where adding further case-by-case requirements would not be cost -effective. The commenter added that where state programs are deter mined not to be fully effective for meeting CAM requirements, state s should be given time to fill gaps in their programs.

A few commenters argued that the programmatic appro ach allows states more flexibility, both to incorporate existing SIP provisions and to choose which approach of implementing CAM best suits the i ndividual state and will be most likely to satisfy CAM objectives. The y noted that this flexibility is consistent with the CAA's granting o f primary responsibility for air quality control to the states. One of the comm enters asserted that by allowing necessary improvements to occur by rule, E PA would be improving the SIP process itself: the SIP credit a chieved by additional compliance assurance measures is far more easily qu antified if accomplished by rule than by each individual permit , thus greatly enhancing overall air quality planning.

The commenters estimated that it will take states a t least three years to fully revise Part 70 programs to reflect CAM when f inalized, and anotherCAM RTC (Part III)

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five years before CAM plans can be incorporated int o all necessary individual permits. They argued that a state CAM p lan, which would be based on existing programs, could be developed more quickly and would apply to all sources once effective. The commenter s added that it will be easier for the public to participate in the develop ment of a single programmatic "State CAM plan" than to attempt to ov ersee the development of individual CAM plans in multiple per mits.

A commenter stated that the programmatic approach e liminates the need to establish the relationship between monitored par ameters and emission limits at every source which is one of the most pro blematic aspects of the CAM proposal. By eliminating this requirement whil e still providing a reasonable assurance of compliance, the commenter a rgued that the programmatic option will be more successful at achi eving the goals of the CAM program.

Response: The Agency agrees with many of the commen ter’s suggestions. As

mentioned in Section I.C.2.d. of the preamble to th e final rule, permitting authorities are not precluded from utilizing progra mmatic approaches for part 64 implementation. The preamble also states t hat current monitoring can be used for CAM purposes, to the extent that th e current monitoring meets the part 64 criteria. However, as discussed in the preamble, the Agency does not agree that additional time, beyond that included in the final rule’s implementation schedule, is warranted, including additional time for filling gaps in permitting authorities’ pr ograms.

Letter(s): ASARCO Incorporated (VI-D-187); Californ ia Association of Sanitation

Agencies (VI-D-206); County Sanitation Districts of Los Angeles County (VI-D-232); County Sanitation Districts of Orange C ounty, California (VI-D-231); DuPont Engineering (VI-D-127); Texas Ti tle V Planning Committee (VI-D-188); Texas Chemical Council (VI-D- 236); Tri-TAC (VI-D-225)

Comment c: Several commenters proposed or supported a specific programmatic

approach to implementing CAM. One commenter recomm ended revision

of the CAM rule to allow each state to submit a "St ate CAM plan" under

which the state would have to demonstrate that its overall programs achieve Part 64's general objectives. One commente r stated that if CAM is to go forward, it specifically supported the abo ve commenter’s approach. Other commenters agreed that such an app roach would attainCAM RTC (Part III)

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equivalency of environmental results, without the a dded bureaucracy

associated with the draft rule.

Some commenters provided detailed discussion of wha t a "State CAM plan" might contain. These commenters noted that T NRCC rules already have a compliance assurance monitoring process whic h includes the following: a requirement to properly operate and m aintain control devices; a requirement to report any control device failures or discrepancies which might result in exceedances; th e potential for excessive discrepancies to lead to enforcement or t he requirement to undertake specific corrective action plans; and an incentive to report all possible discrepancies. The commenters added that TNRCC's on-site compliance investigation program allows TNRCC to id entify rules which need to be revised to remain consistent with the go als of CAM. One of the commenters pointed out that many other states h ave similar programs, as recognized by EPA’s statement that man y states have malfunction abatement plans similar to the CAM requ irements.

A commenter expressed its belief that applicable re quirements already include the monitoring necessary to identify discre pancies under a state CAM plan, especially since EPA has the authority to call for SIP rule revisions if existing rules do not include sufficie nt monitoring requirements. However, the commenter did support a review of monitoring-related provisions as part of a State CA M plan demonstration as long as such review would not include rules appl icable to sources in attainment areas, post-1990 rules, NSPS and NESHAPs , and minor NSR-based permit terms.

One state agency provided a detailed proposal outli ning a programmatic approach wherein a permitting authority would condu ct an analysis of SIP

rules and federal rules, would demonstrate to EPA t hat the monitoring requirements for certain emission limitations alrea dy satisfy CAM, and would either conduct state rulemaking or case-by-ca se reviews for those

SIP and federal rules which do not themselves meet the goals of CAM. The commenter recommended that a permitting authori ty's programmatic submittal include three major elements: an evaluati on of the general regulatory framework relative to an emission limita tion, and an evaluation of applicable requirement monitoring and a prioriti zed schedule of less than 5 years. The commenter suggested that the sch edule and evaluation of monitoring include consideration of r elative environmental significance. This commenter provided an outline o f such a submittalCAM RTC (Part III)

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from its state and an implementation schedule along with proposed criteria for EPA review of state proposals, and a h ammer provision requiring states that do not complete development o f their programmatic approach as specified to revert to case-by-case det erminations. The

commenter also recommended that EPA continue to rev iew all federal regulations proposed before November 15, 1990 to na rrow the list of rules for which CAM plans must be developed enabling stat es employing the programmatic approach to conduct state rulemaking f or those federal rules which do require CAM plans. Other commenters supported the approach described. One commenter added that the C AM program should not be part of the title V program at all be cause it will place too large a burden on that program.

Response: As mentioned above, the final rule allows permitting authorities the

flexibility to utilize programmatic approaches for CAM implementation. The preamble also mentions that current monitoring requirements can - and should - be used for CAM purposes, to the exten t that the current monitoring meets the part 64 criteria. The Agency agrees that many of one commenter’s suggested approaches, including use of an on-site compliance investigation program, could have value in assuring compliance. However, the Agency does not believe t hat permitting authority initiated activities, such as the on-site compliance investigation program, either satisfy the monitoring requirements of the Act or are as effective in assuring compliance as owner or operat or initiated activities, such as developing, operating, and maintaining moni toring for pollutant-specific emission units.

Letter(s): Arizona Mining Association (VI-D-150); A SARCO Incorporated (VI-D-187);

Gas Processors Association (VI-D-163); Louisiana Mi d-Continent Oil and Gas Association (VI-D-184); Texas Chemical Council (VI-D-236); Texas Natural Resource Conservation Commission (VI-D-189 and 265); Texas Title V Planning Committee (VI-D-188); Texas Utilit y Services, Inc. (VI-D-121)

Section 3.6: Information for Permitters

Comment a: An association of state and local author ities recommended that the rule

require sources to provide specific minimum informa tion to permitting

authorities. The commenter stated that the review, approval, and implementation of CAM plans will involve significan t resources and thatCAM RTC (Part III)

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permitting authorities will need baseline unit-spec ific information to make the case-by-case review process possible. Therefor e, the commenter recommended that the rule require this critical min imum amount of information, such as operating ranges for the sourc e and its control equipment, and choice and frequency of monitoring, to be inserted into Title V permits. An environmental organization arg ued that the burdens imposed on permitting authorities by the rule are e xacerbated by the lack of restrictions on the quality of sources' proposal s or their supporting data. The commenter argued that without needed restricti ons on the type of information submitted, each proposal will be unique and permitting

authorities will have to evaluate them as such. As a result, many proposals are likely to be approved simply because permitting authorities do not have the resources to question them accordin g to this commenter.

Response: The Agency believes that the final rule’s monitoring design criteria and

submittal requirements meet the commenters’ suggest ions by providing with specificity the minimum information concerning permit contents and the necessary restrictions on monitoring system pro posals.

Letter(s): Missouri Department of Natural Resources (VI-D-260); Natural Resources

Defense Council (VI-D-151); STAPPA/ALAPCO (VI-D-179 )

Comment b: Commenters argued that EPA must provide clear guidance on what

constitutes Subpart B monitoring and what constitut es Subpart C monitoring. One of the commenters stated that comp anies will not know if existing monitoring satisfies CAM or whether the y have submitted sufficient proposals where new monitoring is requir ed. The commenter

added that even with the inclusion of choice of mon itoring in the permit shield, permit negotiation is a daunting task for s tates and sources and a clear standard is needed for companies to appeal mo nitoring determinations or to discuss with permitting author ities the factors that should be considered in making a reasoned decision. The commenter further stated that EPA is obligated to provide sou rces and states with fair notice as to what constitutes approvable monitoring under Title V and section 114(a)(3) since without such clarification states will be able to create any requirement and impose it as a matter of federal law which was not intended by section 114(a)(3). Cites Gener al Electric Co. v.

EPA , 53 F.3d 1324, 1328-29 (D.C. Cir. 1995). This comm enter also noted that companies and states will not know what consti tutes federally required monitoring and what should be designated a state-onlyCAM RTC (Part III)

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requirement in the permit. Finally, the commenter recommended rule language changes intended to clarify that the "reas onable assurance of compliance" standard involves considering a variety of factors as opposed to focusing solely on the level of emissions inform ation obtained by a particular methodology.

Another commenter was concerned that without cleare r guidelines from EPA, state permitting authorities will be likely to take a conservative approach in implementing the CAM program, and such an approach likely

will not be the least cost alternative for the sour ce owner. The commenter argued that states can not be expected to devote significant

resources to small units, and will also be reluctan t to jeopardize federal approval of the SIPs by giving special treatment to small units which may subject small sources to a disproportionately large burden.

Response: As mentioned above, the Agency believes t he final rule language

specifies minimum acceptable requirements for pollu tant-specific emissions units covered by what the August 1996 dra ft referred to as subpart B. As previously mentioned, requirements f or pollutant-specific emissions units covered by what the August 1996 dra ft referred to as subpart C have been removed from the rule. See sec tion 6.4 (Part III) for further discussion of the site-specific factors to be considered in evaluating whether monitoring satisfies part 64.

Letter(s): American Public Power Association (VI-D- 158); Chemical Manufacturers

Association (VI-D-152); National Environmental Deve lopment Association (VI-D-169)

Section 3.7: Approval Procedures

Comment a: Some commenters stated generally that th e rule should include specific

approval guidelines or requested clarification of h ow the permitting authority will actually act to approve or disapprov e a CAM plan. One commenter recommended changes to § 64.3(d) to strea mline approval. The commenter argued that this paragraph requires t wo reviews for each CAM plan, one under Title V and one under the alter native provisions of the underlying rule which is wasteful activity and should be eliminated by providing that the monitoring, recordkeeping and re porting established under CAM are approved alternatives for applicable monitoring, recordkeeping and reporting under Parts 51, 52, 60, and 61.CAM RTC (Part III)

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A permitting authority requested that the rule stat e the options available to them if sources fail to submit the required monitor ing plan or description, or submit monitoring plans and/or descriptions that are inadequate. This commenter argued that the CAM rule should be revise d to establish that permitting authorities may impose any monitoring re quirements that they deem necessary in such cases. An industry commente r argued that part 64 should provide a mechanism for appeal of permitt ing authority

decisions.

Response: The Agency believes the final rule genera lly addresses the commenters'

suggestions. The approval process occurs as part o f - not on a separate schedule from - the part 70 operating permit approv al process. Owners or operators will typically learn of permitting aut horities’ disapproval of part 64 monitoring as the owners and operators’ permit a pplications are found incomplete. That knowledge could also come during the public’s review of draft permits or through the Agency’s review of a proposed permit. Section 64.6 specifically address approval of monit oring and § 64.6(e) describes permitting authorities’ abilities with re spect to disapproval. If an owner or operator believes that the disapproval of proposed part 64 monitoring in a final permit action is inappropriat e, the owner or operator has the right to appeal that final permit decision in the same manner as any other final agency action. With respect to rel ying on the part 64 approval/part 70 permit processes as a substitute f or alternative monitoring approval procedures under other programs (SIPs, NSPS, NESHAP), the Agency has determined not to establish this direct linkage in part 64. Given the processing time for title V permitting, the Agency

believes this issue can be addressed within the cur rent alternative monitoring approval structure.

Letter(s): Department of Energy (VI-D-196); Exxon C hemical Americas (VI-D-128);

Mobil Corporation (VI-D-248); South Coast Air Quali ty Management District (VI-D-233); Wisconsin Electric Power Compa ny (VI-D-130)

Comment b: One commenter stated that it is inapprop riate to require that the permit

reflect the required elements of a CAM plan as stat ed in § 64.3(b) because that improperly subjects Subpart C monitori ng to CAM plan requirements. The commenter suggested addressing th is issue in Subpart B and Subpart C separately.CAM RTC (Part III)

October 2, 1997 Page 162

Response: As mentioned above, the Agency believes t he final rule language

specifies minimum acceptable requirements for pollu tant-specific emissions units covered by what the August 1996 dra ft referred to as subpart B. As previously mentioned, requirements f or pollutant-specific emissions units covered by what the August 1996 dra ft referred to as subpart C have been removed from the rule.

Letter(s): Los Alamos National Laboratory (VI-D-210 )

Comment c: To alleviate concerns related to the CE rule, a commenter requested that

the Agency specifically provide that permitting aut horities may not reject a source's proposal simply because the owner or opera tor does not provide a demonstration as to the relevance of parameter le vels outside the proposed indicator ranges.

Response: Nothing in part 64 requires the owner or operator to establish parameter

levels which represent non-compliance conditions. The disapproval of part 64 monitoring on that basis would therefore no t be a reasonable action under part 64 authority, although a permitti ng authority may have independent authority for requiring that type of de termination. However, the owner or operator is responsible for documentin g why the proposed parameters provide a reasonable assurance of compli ance. As part of that demonstration, the owner or operator must show why the indicator ranges are relevant to assuring compliance, includi ng why excursions from indicator ranges may be indicative of a loss o f control performance.

Letter(s): Utility Air Regulatory Group (VI-D-252)CAM RTC (Part III)

October 2, 1997 Page 163

Section 4: Recordkeeping and Reporting

Section 4.1: Semiannual Reports

Comment a: A state agency commenter supported the p roposed semi-annual reporting

schedule stating that given current state agency re sources this reporting schedule is preferable to one with any greater freq uency. The commenter also suggested that quarterly reports be required under special circumstances such as implementation of a Q IP. An association of state and local agencies recommended requiring q uarterly reporting for Subpart B sources (while retaining the proposed sem i-annual reporting requirements for Subpart C sources) since this repo rting frequency would allow permitting authorities to respond more quickl y to potential emission

excursions.

Response: As discussed in section II.I.2. of the fi nal rule preamble, the 1993 EM

proposal required quarterly reporting and many comm enters indicated that this was overly burdensome. The Agency believes th at semiannual reporting as required by part 70 is consistent with the goals of part 64, and with 1994 revisions to 40 CFR 60.7(e) that changed the reporting frequency for NSPS direct compliance monitoring fro m quarterly to semiannual. The Agency also notes that part 70 aut horizes permitting authorities to require more frequent reporting, whe n appropriate and to report promptly all deviations from permit requirem ents.

Letter(s): NESCAUM (VI-D-192); State of Illinois EP A (VI-D-183)

Comment b: An environmental organization argued tha t the rule does not meet the

requirement in section 503 of the Act that sources must promptly report all deviations from permit requirements to the permitti ng authority. According to this commenter, the CAM rule's require ment that sources provide a report every six months of summary inform ation on the number,

duration, and cause, if known, of excursions or exc eedances and the corrective actions taken is faulty for this reason. In supplemental

comments the commenter added that the final rule sh ould not eliminate the obligation under part 70 to identify and report all deviations. Another commenter stated that a community should be able to obtain information about excessive air releases as soon as possible af ter the occurrence.CAM RTC (Part III)

October 2, 1997 Page 164

Response: The Agency notes that part 64 relies on t he reporting requirements of part

70, which specify that reports be submitted at leas t semiannually, and that all deviations be reported promptly. That independ ent part 70 requirement will still apply.

Letter(s): Clean Steel Coalition (VI-D-195); Natura l Resources Defense Council

(VI-D-151); Natural Resources Defense Council (VI-D -244)

Comment c: One state agency recommended that subpar t B units which have

experienced deviations in a reporting period be sub ject to automatic submission of reports while subpart C units which h ave experienced deviations in a reporting period be required to sub mit a report on request only. The commenter argued that this would reduce the burdens associated with the enormous number of reports that will have to be submitted to satisfy the draft CAM rule. The comme nter added that the annual compliance certification will serve as a saf eguard to assure proper reporting for subpart C units.

Response: No response to concerns over reporting fo r subpart C is necessary since

subpart C is not included in the final rule.

Letter(s): Texas Natural Resource Conservation Comm ission (VI-D-189)

Comment d: A commenter stated generally that the pr oposed reports require too much

detail. Another commenter similarly objected to th e requirements in §§ 64.4(a)(2)(i) and (ii) to include detailed infor mation on the causes of

excursions, exceedances, and downtime incidents in semi-annual reports. Because the commenter agreed with a requirement to submit summary

information on these incidents but believed that su bmitting detailed

information on the causes of such incidents will ma ke the reports lengthy and burdensome to prepare, it proposed as an altern ative that records on

the cause of such incidents could be maintained on site consistent with the requirements of § 64.4(b)(2).

To alleviate reporting burdens, a state agency comm enter recommended that Part 64 and Part 70 allow owners and operators of units which have experienced no deviations during a reporting period to submit a single summary report stating that no deviations have occu rred. The commenter asserted that an enormous number of repor ts will have to beCAM RTC (Part III)

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submitted to satisfy the CAM rule and estimated tha t in their state, 195,000 to 400,000 reports will have to be submitte d annually to the permitting authority to satisfy CAM requirements.

Response: The reporting requirements in § 64.9(a)(2 )(ii) of the final rule do not

require detailed information, but rather summary in formation on excursions and exceedances. These provisions are p atterned after existing summary excess emission reports under 40 C FR 60.7(d). To the extent that part 70 allows for submittal of a singl e "negative declaration" type of summary report, part 64 has been drafted to allow for the same type of reporting.

Letter(s): Eli Lilly Company (VI-D-124); Pennsylvan ia Chamber of Business and

Industry (VI-D-114); Texas Natural Resource Conserv ation Commission (VI-D-189)

Comment e: One commenter recommended modifications to § 64.4(a)(2)(ii) for

reporting of monitor downtime. The commenter argue d that owner/operators should be able to exclude outages a ssociated with other daily, weekly, etc. quality assurance activities ra ther than only daily monitor maintenance and asked that the word "daily" be deleted.

Response: The Agency disagrees. The requirements f or reporting of monitor

downtime in § 64.9(a)(2)(ii) of the final rule are consistent with other EPA reporting requirements (see 40 CFR 60.7(d)).

Letter(s): Exxon Chemical Americas (VI-D-128)

Section 4.2: Reporting-QIP Notice

Comment a: Several commenters recommended that EPA extend the QIP notification

period. A few commenters suggested specific revisi ons to § 64.4(a)(3) consistent with this position. Two commenters stat ed generally that the QIP notification time periods are arbitrary. One c ommenter noted that notification within two working days of when a QIP is required may not be possible, especially in circumstances such as those where an out-of-range parameter is initially thought to be c aused by a malfunction of the monitoring equipment and the need for a QIP is not discovered until after replacement of a monitoring component. This commenter andCAM RTC (Part III)

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others stated that notice should be triggered after the owner "identifies the

need for" a QIP. Other commenters stated that thei r understanding of the rule as drafted is that the obligation to notif y begins at the time at which the source determines that a QIP is needed, w hich may be later

than the time at which the QIP threshold is actuall y reached. A state agency and another commenter argued that because th e data collected to satisfy the CAM rule may require significant time t o evaluate before an informed to decision to implement a QIP can be made , the two day notification requirement is unreasonable. Similarl y, a commenter noted that, at a small site, one person may be responsibl e for reviewing data and determining when a QIP has been triggered and t hat it may also take some time to determine when the 5 percent threshold has been reached, especially at a facility subject to a large number of CAM plans. As much as two days is ordinarily needed to repair the dama ge to the unit and

determine the cause of a failure. In addition, oth er regulations may require a more immediate notification (e.g., malfun ctions) and subsequent follow-up reports.

Many commenters recommended various alternative not ification periods. One of the commenters argued that since an excursio n from an indicator range does not automatically mean that a source has violated an emission limit or standard, triggering of a QIP is not an em ergency situation and should not require such a short notification period . The commenter recommended requiring notification "as soon as poss ible." Other recommendations included notice periods from 5 to 3 0 days. One commenter recommended that the QIP reporting requir ement be consistent with language in the requirement to prov ide notice of deviations from a permit in 40 CFR 71.6(a)(3)(iii)(C) which in cludes telephone or

facsimile notice with a written notice submitted wi thin 10 working days.

One commenter argued that since sources are require d to take corrective action immediately, immediate notification is not t hat crucial. The commenter added that it may be impossible to make n otification within two days, for example if the time involves a weeken d or holiday. Another commenter stated generally that the period is too short to review the necessary information and that such a short tim e frame seems

unnecessary. A commenter recommended that the 2-day notification period apply only

to situations in which the source determines that a n exceedance of an applicable emission limitation or standard has occu rred, not to excursionsCAM RTC (Part III)

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or QIPs. The commenter stated that this would redu ce report review burdens on permitting authorities and focus review on only real problems.

Response: The Agency has deleted from the final rul e the requirement that source

owners notify the permitting authority within two d ays of the need to implement a QIP. No additional response to this co mment is necessary.

Letter(s): Air Products and Chemicals, Inc. (VI-D-1 86); American Automobile

Manufacturers Association (VI-D-157); American Elec tric Power (VI-D-129); American Gas Association (VI-D-154); As sociation of Battery Recyclers (VI-D-155); Chevron Companies (VI-D-132); Clean Air Implementation Project (VI-D-153); Colorado Associa tion of Commerce and Industry (VI-D-182); Coastal Corporation (VI-D- 123); County Sanitation Districts of Los Angeles County (VI-D-23 2); Eastman Chemical Company (VI-D-173); Georgia Department of Natural R esources (VI-D-193); Hawaiian Electric Company, Inc. (VI-D-1 65); KBN Engineering and Applied Sciences, Inc. (VI-D-229); Pharmaceutic al Research and Manufacturers of America (VI-D-217); PPG Industries , Inc. (VI-D-136); R.R. Donnelley & Sons Company (VI-D-221); Southern Company Services (VI-D-171); Specialty Steel Industry of No rth America (VI-D-143); Steel Manufacturers Association (SMA) (VI-D-144); T exas Chemical Council (VI-D-236); Texas Natural Resource Conserva tion Commission (VI-D-189); The Fertilizer Institute (VI-D-145); Th e Society of the Plastics Industry (VI-D-148); UCAR Carbon Company, Inc. (VI- D-122); Wellman, Inc. (VI-D-237)

Comment b: A commenter argued that notification tha t a QIP has been triggered may

not be possible until the completion of the semiann ual reporting period since a facility may not know it has triggered a QI P particularly if a percentage threshold has been exceeded. This comme nter requested

that EPA establish that, under such circumstances, a source does not need to report triggering of a QIP until two workin g days after the end of the reporting period. Another commenter agreed and added that the requirement just adds yet another paperwork burden for a notice that may never be looked at. The second commenter proposed that the notice be included in the next semiannual report. Response: The Agency has deleted from the final rul e the requirement that source

owners notify the permitting authority within two d ays of the need to implement a QIP. No additional response to this co mment is necessary.CAM RTC (Part III)

October 2, 1997 Page 168

Letter(s): Chemical Manufacturers Association (VI-D -152); General Electric

Company (VI-D-156)

Comment c: One state commenter noted that the QIP n otification period conflicts with

some state and local reporting requirements and may cause confusion among permitted sources. The commenter referred to their state's own semiannual requirement to report deviations from mo nitored control equipment parameters (Minn. R. 7007.0800).

Response: The Agency has deleted from the final rul e the requirement that source

owners notify the permitting authority within two d ays of the need to implement a QIP. No additional response to this co mment is necessary.

Letter(s): Minnesota Pollution Control Agency (VI-D -197)

Comment d: Some commenters were concerned with the grant of discretion for

permitting authorities to add further QIP notificat ion requirements. The commenters stated that this is a standardless deleg ation of authority to permitting authorities, and that the QIP reporting provisions are sufficient. Another commenter suggested revising § 64.4(a)(3) t o replace "shall" with "may" in order to clarify that permitting authoriti es are not required to add further QIP reporting requirements.

Response: The final rule does not include the refer enced provision that was included

in the 1996 part 64 Draft. The final rule provides that a QIP can be required after a determination by the permitting au thority or the Administrator that a source owner or operator has f ailed to conduct proper operation and maintenance as documented through par t 64 monitoring and other available information. In this respect, the QIP provisions are analogous to existing corrective action remedies av ailable to address compliance problems already available to permitting authorities. No additional response is necessary.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); General

Electric Company (VI-D-156); Total Petroleum, Inc. (VI-D-190)

Comment e: A commenter requested that EPA clarify w hether this notice must be

written, verbal or both.CAM RTC (Part III)

October 2, 1997 Page 169

Response: The Agency has deleted from the final rul e the requirement that source

owners notify the permitting authority within two d ays of the need to implement a QIP. No additional response to this co mment is necessary.

Letter(s): PPG Industries, Inc. (VI-D-136)

Section 4.3: Records to be Kept

Comment a: Several commenters were opposed to the i nclusion of additional

recordkeeping and reporting requirements on the gro unds that such requirements are burdensome and costly. One commen ter stated that operators should be allowed to record O&M data in t he course of their normal work requirements and without significant ad ditional effort. This commenter argued that operators would not normally need to keep records relating to corrective actions, QIPs and QI P implementation activities, QA activities, monitoring downtime inci dents, data used to demonstrate the adequacy of monitoring, and other r equired monitoring information. The commenter added that these requir ements will be additionally burdensome because many regulated sour ces are remotely

located and unmanned.

Other commenters were concerned about potential red undant recordkeeping and reporting. They asked that EPA c larify that Part 64 does not require the keeping of separate records or development of new reports where the required information is already k ept or reported as a result of a pre-existing requirement (e.g., recordk eeping requirements under Part 75 or excess emission reporting under Pa rt 60).

Response: As discussed in section II.I.5. of the fi nal rule preamble, the Agency

believes that the records required to be kept under part 64 are all required by part 70. Therefore the intent of § 64.9(b) is t o clarify the requirements rather than to impose additional burdens. Letter(s): Natural Gas Pipeline Company of America (VI-D-118); Utility Air

Regulatory Group (VI-D-140); Virginia Power (VI-D-2 26); Wisconsin Electric Power Company (VI-D-130)CAM RTC (Part III)

October 2, 1997 Page 170

Comment b: Two commenters requested clarification o f the time period for keeping records

consistent with existing regulations and standards, facilities should be allowed to maintain records for a period of less th an five years.

One commenter asked that the rule clarify that QIP records are required to be maintained only if a QIP is actually required

.

Response: The final rule refers to the recordkeepin g requirements set forth in §

70.6(a)(3)(ii) which require that records of the re quired monitoring be kept for at least five years. The Agency believes that the reference to "any" quality improvement plan required pursuant to § 64. 8 is adequate to specify that only records related to required QIPs are necessary.

Letter(s): Natural Gas Pipeline Company of America (VI-D-118); Occidental

Chemical Corporation (VI-D-166); Total Petroleum, I nc. (VI-D-190)

Section 4.4: Alternative Recordkeeping Formats

Comment a: Several commenters asked that data compr ession be explicitly

authorized. One commenter stated that this would p revent an unreasonable number of data points being stored. A nother commenter argued that since most continuous data recording fu nctions are performed by computer, EPA should authorize two types of comp ression: 1) systems that "zip" a file for storage by only retaining dat a points that differ from prior data points (see 40 CFR 63.506(g)(3)); and 2) systems that average many numbers down to one number, so long as none of the numbers exceed a regulatory limit. The commenter explained that these methods

do not discard relevant data, and added that the co mpression algorithm could be available for on-site inspection and all d ata could be retained for 3 hours. A commenter cited the HON preamble, 40 CF R 63.152(f), which provides for the use of alternative recordkeeping s ystems, such as data compression systems. Another commenter cited to th e HON and certain MACT standards as examples of regulations that auth orize keeping various averages of data points that show complianc e and recording every data point only when indicators are outside of appr oved ranges.

One commenter stated generally that it supported th e flexibility provided in the 1996 part 64 draft for use of alternative media

.CAM RTC (Part III)

October 2, 1997 Page 171

Response: As discussed in Section II.I.5. of the pr eamble to the final rule, part 64

records may be kept in media other than paper so lo ng as the records are available for inspection. The use of data compress ion is subject to the underlying requirements in other standards, if appl icable. For records required solely because of part 64, the Agency beli eves that the general recordkeeping provisions in Part 70 are sufficientl y flexible to allow for approval of data compression on a case-by-case basi s.

Letter(s): Chemical Manufacturers Association (VI-D -152); Dow Chemical Company

(VI-D-120); Phillips Petroleum Company (VI-D-131); Texas Chemical Council (VI-D-236); Virginia Power (VI-D-226)

Section 4.5: Off-site Storage of Records

Comment a: Several commenters stated that off-site storage of records should not

require permitting authority approval. Two comment ers argued that part 70 already allows for this and part 64 should not r estrict this authority. Neither permitting authority staff nor owners/opera tors should have to expend time and effort on such a technicality accor ding to one

commenter. Another commenter concluded that CAM sh ould not alter underlying rules in this manner.

Response: Because the final rule relies directly on the reporting and recordkeeping

requirements of part 70, the requirement for permit ting authority approval of off-site storage of records has been deleted. T he Agency notes that the records must be made readily available for insp ection.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Coastal

Corporation (VI-D-123); Colorado Association of Co mmerce and Industry (VI-D-182); Exxon Chemical Americas (VI-D-128); Gen eral Electric Company (VI-D-156); Texas Chemical Council (VI-D-23 6) Section 4.6: Other Reporting and Recordkeeping Iss ues

Comment a: One state agency suggested a quarterly " look-back" requirement, under

which sources would have to determine if they had e xceeded their QIP implementation threshold in the previous three mont hs. The commenter explained that if the threshold had been exceeded, the source could be required to submit an informational report to the p ermitting authority. This requirement would provide permitting authoriti es with early warnings of possible deviations from a CAM plan and sensitiz e owners/operators ofCAM RTC (Part III)

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the need to take steps to avoid actual QIP implemen tation at the end of the semi-annual reporting period according to this commenter.

Response: Because of the revisions to the QIP provi sions, this comment is no longer

generally applicable. A permitting authority would be able to add this type of requirement in those situations where a spe cific QIP trigger threshold is included in a permit.

Letter(s): State of Illinois EPA (VI-D-183)

Comment b: One commenter stated that the rule shoul d, at a minimum, require an automa

automated means (e.g., manual logging can lead to f ailures to actually take the appropriate reading and to fill out the lo g at the end of a shift). The commenter added that exceptions to automated re adings could be

allowed if substantial economic or technical barrie rs exist.

Response: The Agency disagrees that only automated means of data collection,

storage and reporting should be allowed. The EPA b elieves that part 64 should be flexible regarding the type of data colle ction and storage permitted so that the permitting authority can appr ove the most efficient scheme on a site-specific basis. However, the pres umption of at least some form of continuous monitoring for large emissi ons units (see Section II.C.2.d. of the preamble to the final rule) likely will result in automated monitoring approaches for most large units subject to part 64.

Letter(s): Environmental Systems Corporation (VI- D-125)

Comment c: A commenter argued that part 64 should n ot require that "substitute data"

calculated under part 75 when CEMS data are unavail able be used in reporting deviations or excursions. Because such d ata are hypothetical and intentionally punitive, according to the commen ter, the commenter stated that their use would equate to "double count ing" against a source of hyperbolic "emissions"--when in fact actual emis sions during a "data-less" period may have been well within limita tions or standards. According to this commenter the use of substitute d ata for part 64 would misrepresent to regulators and the public the poten tial environmental impacts of actual emissions.

Response: Part 64 does not require or assume that a n owner or operator will use part

75 substitute data procedures in calculating applic able emission averagesCAM RTC (Part III)

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for other applicable requirements (NSPS, SIP, etc.) . These averages should be calculated using CEMS data that are consi dered valid data under the applicable requirement in question.

Letter(s): Southwestern Public Service Company (VI- D-224)CAM RTC (Part III)

October 2, 1997 Page 174

Section 5: Savings Provisions

Comment a: One commenter stated that EPA should del ete § 64.5(a)(2)'s reference to

the Administrator and to Clean Air Act section 504( b) because it is unnecessary to save the requirements of section 504 (b) because there are no prior regulations issued under this section other than the current proposed rule. The commenter added that even if the current part 70 is considered a rule under section 504(b), EPA should eliminate the savings provision so that only one set of requirements will apply under that provision, which would be consistent with EPA's sta ted intent to rescind the periodic monitoring provisions of part 70. Alte rnatively, the commenter recommended EPA deferring CAM implementation until the second round of title V permits.

Response: The Agency disagrees. As discussed in Se ction I.C.4 of the preamble to

the final rule, the Agency has decided to continue to rely on part 70 to define the periodic monitoring requirements for uni ts not subject to part 64. In addition to these requirements, this langua ge clarifies that the savings provisions apply to any future requirements promulgated under section 504(b).

Letter(s): Chemical Manufacturers Association (VI-D -152)

Comment b: A commenter requested that § 64.5(a)(1) be more specific what

constitutes "improved or new monitoring requiremen ts" for those facilities that do not have existing monitors. This commenter also stated that the "more restrictive monitoring" requirement in § 64.5(a)(2) is an open ended requirement.

Response: The Agency disagrees that further explana tion is needed. The phrase

"improved or new monitoring" in § 64.10 of the fina l rule is used in describing the purpose of part 64, as defined more fully in the other sections of the rule, and distinguishing it from ot her regulations which establish minimum requirements for particular progr ams. See further discussion in Section II.J. of the preamble to the final rule.

Letter(s): Occidental Chemical Corporation (VI-D-16 6)CAM RTC (Part III)

October 2, 1997 Page 175

Comment c: One commenter argued that § 64.5(a)(3) s hould be deleted because it

would have the effect of abrogating the permit shie ld.

Response: As described in Section I.E. of the pream ble to the final rule, the Agency

does not agree with those commenters who suggested that sources that comply with part 64 should be shielded from enforce ment of their emission limits. The Agency does not believe that the savings provisions of the final rule interfere with the permitting aut hority's ability to extend the permit shield to part 64 monitoring requirements in cluded in an operating permit. The extension of such a shield will be ava ilable to protect sources from claims that the monitoring approved in the permit fails to satisfy part 64.

Letter(s): General Electric Company (VI-D-156)CAM RTC (Part III)

October 2, 1997 Page 176

Section 6: Monitoring Design Criteria

Section 6.1: Subpart B-General Criteria

6.1.1: General Comments

Comment a: Commenters supported generally the appro ach to using monitoring that

documents proper operation and maintenance of contr ol devices, or noted that the draft § 64.6 was an improvement over past versions because the current version properly establishes a standard of "reasonable assurance of compliance" and abandons prior drafts use of problematic concepts such as ranges designed "to ensure . . . t hat the [unit] will remain in compliance."

Response: No response necessary.

Letter(s): Air Control Techniques, P.C. (VI-D-202); Chemical Manufacturers

Association (VI-D-152); Department of Energy (VI-D- 196)

Comment b: Other commenters complained that the mon itoring required under CAM

would produce data with no relevance to environment al protection. Commenters argued that the CAM approach of monitori ng "indicators" of control device performance which are not correlated with emissions will neither provide data that ensure that sources are o perating within emission limits nor give regulators the data needed to implement rational attainment strategies. Commenters stated that dire ct measurement of emissions is necessary to fulfill these aims. Anot her added that the rule should require industry to monitor actual emissions so that the rule in fact assures compliance and makes the data easy to compa re to emission limits for enforcement and certification purposes. In addition, the commenter argued that the rule should assure that e xcess emissions are adequately addressed, monitoring is done at an acce ptable frequency, all valid data are reported, and all major sources are subject to the requirements. A commenter asserted that the monito ring provisions should require monitoring that is capable of being correlated with emission limits. This commenter stated that the rule imprope rly results in a comparison of owner selected parameter measurements with owner selected ranges rather than comparison of actual em issions with emission limits. Other commenters also argued that indicato r ranges are not reliable enough to show compliance or noncompliance with applicableCAM RTC (Part III)

October 2, 1997 Page 177

emission limits and standards, except that some com menters assert they could be if the rule requires additional criteria t o provide a credible demonstration of the relationship. A state agency recommended that one of the goals of the CAM rule should be establis hing the relationship between monitored parameters and actual emissions. The commenter suggested achieving this goal by requiring that sou rces demonstrate this relationship in order to get the benefit of a shiel d for the adequacy of CAM plans. The commenter added that, at a minimum, a s ource or industry group should be required to develop a sensitivity a nalysis to identify the most critical parameters for process/control perfor mance. Similarly state agency commenters supported a requirement that sour ces must make a "credible demonstration" of the relationship betwee n monitored parameters and actual emissions. The agencies argu ed that such a demonstration would be necessary before any paramet ric or O&M data could be used to support a presumption of complianc e. The commenters recommended that the "credible demonstration" requi re that the following elements be shown for each pollutant-specific emiss ions unit while the unit is operating in a manner consistent with the C AM plan: 1) a demonstrated relationship between the monitored par ameter and the unit's actual emissions; 2) a demonstrated margin o f compliance; and 3) an assessment of the potential variability of the u nit's emissions. The commenter further specified that the number of indi cators monitored and the extent of the required demonstration would be a function of the documented emissions history of the unit, the unit' s established margin of compliance, the complexity of the process, and othe r factors. The commenters added that the phrase "credible" in the "credible demonstration" standard would be defined by either EPA, permitting authorities, or the courts (in the event of a legal challenge).

Response: The Agency believes that monitoring to as sure the ongoing proper

operation and maintenance of control technology has direct relevance to environmental protection. Further, the Agency beli eves that such monitoring can provide a technically sound and reas onable assurance of continuing compliance with applicable requirements, including emission limitations. The commenters are correct that part 64 does not require a statistical correlation analysis between the levels of measured parameters and emission rates; however, the suggestion that pa rt 64 does not require any site-specific developed relationship between pa rameter indicator ranges and compliance performance is inaccurate. T he Agency agrees that the use of operational data collected during p erformance testing is a key element in establishing indicator ranges; howev er, other relevantCAM RTC (Part III)

October 2, 1997 Page 178

information in establishing indicator ranges would be engineering

assessments, historical data, and vendor data. Fur ther, the Agency believes that operation within indicator ranges est ablished in this manner will provide reasonable confidence that so long as the indicator values are not exceeded the facility will remain in compliance with emission standards. The rule requires precisely this type o f justification for the

establishment of indicator levels. Thus, the comme nters' broad claims about “no correlation” are simply incorrect. The evaluation criteria cited by state agency commenters are consistent with the criteria identified in part 64 for evaluating selected parameters and the appropriateness of the indicator range. These factors should be considere d by both the source owner and the permitting authorities in evaluating whether the indicator levels provide a reasonable assurance of compliance as part 64 indicates. Further, the fact that the operating indicator ran ges are owner-derived does not obviate the requirement in the rule for ad equate justification for the parameters being monitored and the levels at wh ich the parameters

are maintained.

Letter(s): Clean Steel Coalition (VI-D-195); Instit ute of Clean Air Companies

(VI-D-139); Maine DEP (VI-D-240); Natural Resources Defense Council (VI-D-151); NESCAUM (VI-D-192); S. Fitzsimmons (VI- D-201); Sierra Club, Lone Star Chapter (VI-D-242); State of New Je rsey Dept. of Environmental Protection (VI-D-215)

Comment c: A commenter also argued that the CAM rul e fails to address important

issues relating to the establishment of indicator r anges and parameter monitoring. The commenter described the provision in the rule requiring

sources to monitor one or more indicators of contro l device performance as inadequate and stated that if CAM is to rely on the theory that control device monitoring can assure compliance, it should recognize that typical control devices have several parameters that must s tay within certain ranges. The commenter noted that if monitoring is i nadequate, a source could operate consistently out of compliance with e mission standards

without detection. The commenter asserted that sour ces will tend to push the limits of leniency in the CAM plans they submit in an effort to minimize

the detection of excursions and exceedances.

Response: The Agency agrees that many control devic e operations are sensitive to

the management of more than one operating parameter . The language in the rule and preamble emphasizes this point. An indicator range whichCAM RTC (Part III)

October 2, 1997 Page 179

fails to take into account significant control devi ce parameters is unlikely to provide the reasonable assurance of compliance w ith emissions limitations or standards. Further, the guidance ma terial the Agency has distributed includes examples with multi-parameter monitoring as generally accepted approaches. These guidelines al so provide example technical justifications on which to base operating indicator ranges for permitting authorities and the public to use in jud ging the adequacy of monitoring. The subsequent responsibility to recor d, respond to, and report excursions as possible exceptions to complia nce will have the desired affect of requiring the source owner to pay more attention to the operations of the control technology and, in turn, improve and assure compliance.

Letter(s): Natural Resources Defense Council (VI-D- 151)

Comment d: A commenter stated that state permitting authority review of CAM plans

will not guarantee effective monitoring and pointed out that rejection of a source's proposed CAM plan will result in the delay of any monitoring requirements whatsoever.

Response: The Agency has prepared and will continue to develop guidance materials

to help permitting authorities to review and evalua te proposed monitoring approaches. Part 64 also makes clear that disappro val of monitoring during the permit application process does not reli eve the source owner form basic periodic monitoring requirements as defi ned in part 70. Finally, if a monitoring plan is disapproved, the o wner or operator must prepare revised monitoring within the schedule defi ned by the rule and is in jeopardy of enforcement action if subsequent pro posals are found inadequate.

Letter(s): Natural Resources Defense Council (VI-D- 151)

Comment e. An industry coalition group and others r aised concerns that the design

standard for indicator ranges could be interpreted to mean that a statistical correlation is required. The commenter s argued that the design standard for indicator ranges is fundamental ly flawed and results in increased stringency. They noted that the standard s in the draft rule offer no concrete guidance on how to set indicator ranges but appear to require assurance that emissions never exceed a given numer ical limit.CAM RTC (Part III)

October 2, 1997 Page 180

Commenters argued that because many standards were developed without requiring emissions to continuously meet th at number (see related comments under section 14), this design standard ch anges the underlying stringency of the standard. The commenters added t hat EPA then appears to require a statistical correlation betwee n the emission standard and the indicators monitored through requiring the range to be set on the basis of performance tests. However, any such stat istical correlation would require a massive complex testing program inv olving multiple parameters and operating conditions according to th e commenters.

If such a statistical correlation is not required, then the commenters argued that the rule provides no guidance on how to address uncertainties or issues of margin of compliance in using performa nce test results in setting indicator ranges. Instead, they stated tha t it appears that a source will be locked into the potentially arbitrar y conditions that existed during the test and that those conditions could dic tate an enforceable indicator range or the triggering of a violation fo r a second QIP. The only way out of that result is to conduct further tests to document why the indicator range should be adjusted, which the comme nters stated would impose unnecessary costs on the source. The commen ters stated that the opacity example (which assumes that an indicato r range below an opacity standard may be appropriate) points out the inherent increased stringency with the design process for indicator ra nges.

In addition, one commenter argued that the one exam ple of how to set a range that is included in EPA's draft guidance, alt hough not premised on real data, raises unanswered questions and illustra tes the problems with EPA's approach. It also contains a significant tec hnical error that makes it unworkable according to this commenter.

These commenters suggested as an alternative design standard that indicator ranges be established to assure in a cost -effective manner that control measures, which have been shown capable of achieving emission limits, are properly operated and maintained in acc ordance with good air pollution control practices for minimizing emission s. In addition, the monitoring design criteria should specifically stat e that the monitoring will not be used to make underlying standards more strin gent, and that monitoring should only be required where it is cost -effective. In addition, the primary basis for establishing indicator ranges should be all available information, including historical operating data (i ncluding data obtained during tests), engineering data, and vendor data or guidance. That dataCAM RTC (Part III)

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would be used to establish the full range of expect ed variability based on normal operations and consistent with good O&M. Th e use of performance test data should not be used to limit t he full normal range of indicator values that reflect good O&M, even if the performance test was near an applicable limit. The commenters stated th at this approach recognizes the relationship of emissions and parame ters, and the variability of both test and parameter results. On e commenter discussed this point in the context of Portland Cement test r esults.

Response: As noted above, part 64 does not require a statistical correlation analysis

of the relationship between operating parameter lev els and emissions. The rule is clear on this point and the guidance ma terial is similarly structured. However, this rule is designed to do m ore than “assure . . . that control measures . . . are properly operated a nd maintained in accordance with good air pollution control practice s for minimizing emissions.” This is not simply an emission minimiz ation rule; it is a rule that requires enhanced monitoring for the purpose o f collecting data relevant to the compliance of the source with emiss ion standards. Because of the high cost involved in calculating a statistical correlation between emissions and parameter levels across opera ting levels, the rule is based on an approach for determining parameter l evels that takes into account both site-specific performance test data an d all other available data including engineering evaluations, historical information, and vendor or manufacturer data. The Agency believes that par ameter levels derived from such data can have a sufficiently clos e relationship to emission levels that maintaining the source within those parameter or indicator levels can provide a reasonable assurance of compliance.

The issue of stringency and continuous compliance o bligations is discussed in section 14 (Part III). Part 64 is sim ply a rule defining monitoring requirements and which is based and buil ds upon existing monitoring approaches. The suggestion that the rul e include a factor for evaluating monitoring selection based on cost-effec tiveness is unnecessary given that the expense of a statistical correlation analysis is not required. Indeed, the rule makes a point of al lowing just the type of data support the commenters suggest (e.g., historic al operating data (including data obtained during tests), engineering data, and vendor data or guidance) in conjunction with performance test d ata (or alone if the owner or operator can justify that a test is not ne cessary) to support site-specific indicator ranges.CAM RTC (Part III)

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Letter(s): Chemical Manufactures Association (VI-D- 258); Coalition for Clean Air

Implementation (VI-D-164); DuPont Engineering (VI-D -127); National Environmental Development Association (VI-D-169); S pecialty Steel Industry of North America (VI-D-143); Steel Manufac turers Association (SMA) (VI-D-144)

Comment f: One commenter was concerned that the cri teria in draft § 64.6(a)(2)

appear to require monitoring to measure the effecti veness of operation

and maintenance activities in addition to the measu rement of control device performance required by § 64.6(a)(1). This approach turns a general duty into a standard and is unheard of in e xisting air pollution programs, the commenter argued. The commenter state d that indicators

are used to determine if the emission limit is bein g attained and it is unlikely that an indicator of O&M effectiveness cou ld be found. In addition, given the broad definition of control dev ice, the commenter argued that this requirement would extend to proces ses and operations not subject to the underlying rule. Thus, the comm enters recommended that § 64.6(a)(2) be revised by deleting the third sentence.

Response: Part 64 is intended to define not only mo nitoring that can be used to

establish compliance status, but also to clarify wi th distinct requirements what is expected for compliance with general duty r equirements common to EPA and many other regulations. The Agency agre es maintaining operations within established indicator ranges repr esents good operation and maintenance of control technology and will pro vide a reasonable assurance of compliance with emission limitations; that is a basic function of part 64. The additional clarification that comp liance with the owner's responsibility to respond promptly to excursions fr om the established indicator ranges is also part of the measure of goo d operation and maintenance practices.

Letter(s): Exxon Chemical Americas (VI-D-128) Comment g: Some utility commenters stated that the rule should not require monitoring

of indicators to demonstrate that controls are oper ated in a way that will minimize emissions "at least to the levels required by all applicable requirements." They argued that this phrase should be deleted because there can be disagreement about the absolute level of emission control required by certain applicable requirements. One c ommenter added that it was concerned about the cost of validating data necessary to establish appropriate ranges.CAM RTC (Part III)

October 2, 1997 Page 183

Response: Part 64 is not intended to define the app licable requirements including the

applicable emission limits. Part 64 is intended to define the minimum level of monitoring sufficient to demonstrate that pollutant specific emission units with control devices continue to ope rate in a manner consistent with compliance performance. The phrase "at least to the levels required by all applicable requirements" is consistent with this goal and is not intended to add or define any new requir ement. This language is based on similar language used in part 63 to def ine an owner or operator's general duty to properly operate and mai ntain a source (see § 63.6(e)(1)). The cost of validating performance indicator ranges is, by the design of part 64, to be moderate given the rel iance on process and control device operation and maintenance design fac tors rather than an extensive degree of correlation testing.

Letter(s): South Carolina Electric and Gas Company (VI-D-116); Utility Air

Regulatory Group (VI-D-140); Wisconsin Electric Pow er Company (VI-D-130)

6.1.2: Adequacy of the General Criteria

Comment a: Some commenters argued that the criteria need to be simplified and

clarified so that there is a standard against which to judge compliance. They noted that the draft includes four separate st andards for judging the adequacy of a CAM plan: reasonable assurance of co mpliance, good air pollution control practices, necessary to assure co mpliance, and designed to provide reliable data for detecting an exceedanc e or excursion. They recommended that the rule should require that CAM p rovide a reasonable assurance of compliance, in a cost-effective manner , without increasing the stringency of existing substantive requirements . (See related comments in Section 6.4) Another commenter added t hat the general criteria and other requirements of CAM fail to prov ide standards against which compliance with CAM can be judged. For insta nce, the commenters stated that the rule fails to adequately : define control device; explain how to set indicator ranges; explain how to set the QIP threshold

or determine if an excursion or exceedance occurs; or explain how the exemptions apply. This commenter argued that spec ific standards should apply and include consideration of cost-effe ctiveness. (See detailed comments in Section 6.4) Another commente r stated generallyCAM RTC (Part III)

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that more concrete guidance in the rule is necessar y on how indicator ranges will be set in practice.

An environmental group argued that criteria and the supporting documentation requirements in the rule are vague an d therefore, permitting authorities would not be able to give me aningful review to monitoring proposed to meet part 64. This commente r also noted that

states have limited resources and claimed, based on comments by the State of Texas at a public meeting, that the states would be overwhelmed by the number of applications with monitoring.

On the other hand, others argued that the general c riteria (and the performance criteria and the CAM requirements) prov ide too much detail. One commenter added that, although the rule is an improvement over the 1993 EM proposal, the level of detail in Subpar t B is still too burdensome to properly fulfill the "gap-filling" ro le for CAM described in the draft preamble, and that the requirements shoul d be more like those in Subpart C. Another commenter stated that the rule should leave much

more discretion to the states as to what and how mu ch information related to CAM must be submitted, and that the requirements in §§ 64.6-.8 of the 1996 part 64 Draft are too detailed to allow th is discretion. The commenter cited the QA/QC and operational status ve rification requirements as examples of this problem which woul d delay permitting and bog down the title V process.

Response: In the final rule, EPA has attempted to s implify the basic general criteria to

avoid the type of potential ambiguity noted in the comments. The final rule clearly establishes that indicator ranges unde r part 64 must be set to provide a reasonable assurance of compliance with a pplicable emission limitations for the anticipated range of operating conditions. Such indicator ranges are required to reflect the proper operation and maintenance of the control device (and associated c apture system), in accordance with applicable design properties, for m inimizing emissions over the anticipated range of operating conditions at least to the level required to achieve compliance with the applicable requirements. Part 64 addresses, by necessity, broadly applicable monito ring of pollution control technology intended not as “gap-filling” bu t to address the Clean Air Act requirements for enhanced monitoring that w ill provide an assessment of compliance with applicable requiremen ts. That some discretion must be applied for site-specific applic ations of such requirements is unavoidable. For this reason, the Agency hasCAM RTC (Part III)

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undertaken to develop control technology and source category specific guidance to assist in defining what the Agency beli eves is necessary to meet the requirements of the rule.

The Agency believes that changes made to the monito ring criteria and to the documentation requirements (see Section 8.1) cu re vagueness concerns. The commenter’s claims regarding the ove rwhelming number of CAM plans that would have to be reviewed is base d on an estimate which was grossly overstated. Instead of “hundreds of thousands” of

units for Texas alone, EPA estimates 26,500 units n ationwide will be subject to part 64 requirements. The resources req uired at the permitting authority will increase to provide review of initia l permit application review, potential permit revisions, and permit renewal acti vities. The Agency expects that these resource needs will be on the av erage of 5000 hours and $160,000 per agency over a five year period. T his level of effort is over and above that required to implement the perio dic monitoring requirements in part 70 and may be offset with perm it fee increases, as appropriate.

The relatively low resource increase on the part of the permitting

authorities is due to several factors. First, as noted above, the costs associated with monitoring required by part 64 are incremental to the costs associated with existing regulations. Given that CAM is predicated on building on existing monitoring, the costs to th e permitting authority would, in many cases, focus on ensuring that the pe rmit applications address the enhancements required by part 64 to exi sting monitoring. Second, the phase-in schedule initially will requir e the permitting authority to address part 64 only for the largest units which account for a small percentage of the total number of units affected by the rule. The CAM phase-in will be significantly longer than the five -year time period on which

the CAM costs were based.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Coalition for

Clean Air Implementation (VI-D-164); Colorado Assoc iation of Business and Industry (VI-D-182); Electronic Industries Asso ciation (VI-D-137); National Environmental Development Association (VI- D-169); Ohio Chamber of Commerce et al (VI-D-160); Pennsylvania Chamber of Business and Industry (VI-D-114); Total Petroleum, Inc. (VI-D-190)

6.1.3: Monitoring of Processes, Capture Systems and BypassCAM RTC (Part III)

October 2, 1997 Page 186

Comment a: Certain commenters objected to the requi rement to monitor indicators of

the performance of capture systems and/or processes in addition to actual control devices. They argued that the expansion of monitoring beyond control devices is unnecessary and creates confusio n. They added that it will be difficult to identify and accomplish approp riate capture system and process equipment indicator monitoring. The additio nal resources used for this expanded monitoring will not significantly enh ance the ability of the CAM plan to detect problems with the control techno logy since the indicator ranges established for the control device s are likely to detect problems with the capture system or process as well . Two commenters proposed adding the words "and/or" between "applica ble control device" and "any associated capture system" in § 64.6(a)(1 ) in order to clarify that monitoring of indicators for both control devi ces and capture systems is not required by CAM unless necessary to indicate emission levels. Another commenter proposed eliminating all referenc es to the required monitoring of capture systems in the draft CAM rule because monitoring of capture systems will often provide little useful information. The commenter noted, for example, that where an applica ble requirement is defined in terms of a control device performance st andard rather than an emission limit, monitoring of the capture system wi ll provide no data relevant to the control device's compliance with th e standard. The commenter also noted that some capture systems oper ate under negative pressure, such that failures of the system will res ult in leaks into the system but no external excess emissions. The comme nter recommended that the inclusion of capture system mo nitoring in CAM plans should be based on site-specific determinatio ns by owners/operators subject to review by permitting au thorities. One industry commenter agreed with the § 64.6(a)(1) la nguage which requires monitoring of control device, capture syst ems, and processes "necessary to assure compliance." The commenter st ated, however, that the requirements of §§ 64.6(a)(2) and (a)(3) are i nconsistent with the previous paragraph in that they describe monitoring of processes "significant to" achieving compliance, which unreas onably expands CAM. The commenter argued that virtually every process i s significant to achieving compliance but if the control device is a ble to handle changes in processes (and generally a demonstration of such ab ility has been made since performance testing usually includes worst-ca se conditions) then it is not necessary to monitor the process to achieve compliance. Similarly, another commenter noted that draft § 64.6(a)(1) re quires Subpart B monitoring to monitor processes "where necessary to assure compliance",CAM RTC (Part III)

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whereas §§ 64.6(a)(2) and (3) speak of process mon itoring where "significant to achieving compliance." The comment er requested EPA to clarify whether this distinction was intended, and if so, what it means. Another commenter also recommended adding the phras e "where necessary" to the phrase " . . . and processes sign ificant to achieving compliance, . . ." in § 64.6(a)(3). This revision is necessary to clarify that processes do not need to be monitored where ot her methods are used to reasonably assure compliance according to t he commenter.

Response: For many situations, the capture of pollu tants for transport to a control

device is critical to compliance with applicable st andards. Monitoring of only the control device performance in such situati ons would not provide sufficient information on control performance nor o n compliance status. Examples include capture of fugitive dust emissions from material transfer operations that are routed to a fabric filter, hood capture of VOC emissions from coating operations that are routed t o an incinerator, and capture of metal particulate fumes from smelting op erations routed to scrubbers. Failure to maintain proper capture syst em pressure or flow rates could significantly affect the overall emissi on reductions and would not be adequately represented by the control device monitoring alone. Similarly, the operation of a process or manufactur ing operation can be critical to assuring that the control device will o perate properly. For example, excess heat at the inlet of a wet scrubbin g device resulting from increased process or combustion loading can signifi cantly affect the control capabilities. Similarly, a change in proce ss operations that changes VOC concentration at the inlet of a carbon absorber can result in excess emissions and a potential compliance problem . The Agency does not intend that monitoring of every process operati on be included in the monitoring to satisfy part 64. The rule does expec t monitoring of process conditions that significantly affect the operationa l capabilities of the control device. The Agency agrees with the commenters that such situations are site-specific in nature. The EPA believes that the final rule clarifies that process operations monitoring is only required "as necessary" to provide a reasonable assurance of compliance with applicable requirements over the anticipated range of operating conditions at a source.

Letters: Air Products and Chemicals, Inc. (VI-D-186 ); Chemical Manufacturers

Association (VI-D-152); Clean Air Implementation Pr oject (VI-D-153); Dow Chemical Company (VI-D-120); Eli Lilly Company VI- D-124); Enron Operations Corp. (VI-D-235); Exxon Company, USA (VI -D-135); Texas Chemical Council (VI-D-236); Total Petroleum, Inc. (VI-D-190)CAM RTC (Part III)

October 2, 1997 Page 188

Comment b. Commenters also objected to the requirem ent to conduct monitoring to

detect any bypass of a control device or capture sy stem. One commenter agreed generally that sources should ensu re that capture systems and control devices are not being bypassed, but stated that the requirement in § 64.6(a)(4) is inconsistent with t he basic goals of CAM and should be eliminated. The goal of Subpart B mo nitoring is to ensure proper performance of the control device and not to ensure that the device is being used by a source when required by a n emission limitation or standard, according to the commenter, and includ ing the level of detail in a CAM plan suggested by this requirement will ma ke the program unmanageable. If EPA does not eliminate this requi rement, the commenter encouraged EPA to develop more specific g uidance on the types of monitoring necessary to satisfy this requi rement. Another commenter recommended deleting § 64.6(a)(4), or at least replacing the word "monitoring" with "a means or method" because a system designed to detect bypass may not actively collect data.

Response: As stated before, the purpose of part 64 is to provide a monitoring

foundation for determining compliance with applicab le requirements. Compliance with emission limitations are among thos e requirements. For this reason, monitoring is necessary to verify that pollutants are not routed around instead of through a control device necessar y to meet the applicable emission limit. The monitoring in many cases need not be more than a periodic verification check that a bypa ss is not in use.

Letter(s): Eli Lilly Company (VI-D-124); Texas Chem ical Council (VI-D-236)

Comment c: Another commenter stated that EPA should establish that § 64.6(a)(4)

does not override existing bypass monitoring exempt ions. The commenter noted that rulemakings on underlying standards have addressed the need for bypass monitoring as well as its technical and economic feasibility, and

that in some cases EPA has established alternatives (e.g., use of car seals) or created exemptions (e.g., emergency safet y vent openings). Imposing monitoring in these cases would result in the underlying rule being made illegally more stringent, according to t he commenter. Other commenters recommended deleting this requirement al together for these and other reasons. The commenters cited to applica ble standards where the extent to which bypass monitoring needs to be c onducted was extensively negotiated. In addition, a commenter n oted that since mostCAM RTC (Part III)

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standards prohibit bypassing of equipment, this mon itoring appears aimed at catching only those few sources intent on illega l activity; such sources would be just as likely to disable the monitoring a s bypass the control equipment. Finally, a commenter noted that the pro vision could be read to cover normal return of a gas stream to a process where the control device is used only as a backup. Another commenter noted that many processes could have numerous vents that could conc eivably allow a bypass but that the operator would be able to detec t and record such bypasses without emission detection equipment at ea ch vent. If this requirement is retained, the commenter stated that EPA must provide greater detail on what is required.

Response: Part 64 is not intended to override appli cable regulatory requirements; if

rules include exemptions or alternatives related to bypass monitoring, the final rule clarifies that part 64 would not change those. The intent of the requirement to monitor the use of a bypass is as st ated above and is included primarily for those situations for which a bypass is installed for emergency situations (e.g., to protect the control equipment in case of a process failure). The compliance certification req uirements of part 70 require that source owners identify possible except ions to compliance including periods in bypass operation. Monitoring to allow documentation of such situations (e.g., periodic checks of bypass damper settings) is appropriate; emissions monitoring of every potentia l bypass vent is not necessary if bypass can be detected by other means. While identifying scofflaws or reducing the opportunities for unlawfu l activities to go undetected may result by implementing part 64, part 64 monitoring is primarily intended to produce data that owners and operators can use in determining compliance with applicable requirements

.

Letter(s): Chemical Manufacturers Association (VI-D -152); Eastman Chemical

Company (VI-D-173); Exxon Chemical Americas (VI-D-1 28); PPG Industries, Inc. (VI-D-136)

6.1.4: Use of Maintenance Records as Part of Monito ring

Comment a: One commenter argued that CAM should not require the keeping of

maintenance records for compliance purposes. To th e extent that proposed § 64.6(a) and (b) compel the maintaining of maintenance records for determination of compliance, the commen ter stated that they are beyond the logical reach of section 114 of the Clean Air Act. TheCAM RTC (Part III)

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commenter argued that maintenance records are kept for repair purposes, not monitoring purposes.

Response: The provisions in § 64.6(a)(1) of the fin al rule allow an owner or operator

to propose monitoring that includes as at least one component of the monitoring approach the "recorded findings of inspe ction and maintenance activities." The rule does not compel this approach as suggested in the comment.

Letter(s): American Electric Power (VI-D-129)

6.1.5: Specific Comments on Indicator Range Provisi ons

Comment a: One commenter stated that EPA should rev ise § 64.6(a)(3) because

indicator ranges will have to be measured at varyin g operating conditions to ensure a valid range of data is obtained. The co mmenter noted that this issue was addressed in detail in UARG's October 10, 1995 comments.

Response: As noted in section 6.1.1 (Part III) abov e, justification for indicator ranges

are supported by the results from performance testi ng supplemented with engineering evaluations, historical information, an d vendor or manufacturer data. Because the performance testing data will generally reflect conditions representative of maximum emissi ons potential under the range of operating conditions anticipated, the Agency believes that the

aforementioned data will be sufficient to establish indicator levels for varying operating ranges without extensive performa nce testing.

Letter(s): American Electric Power (VI-D-129)

Comment b: Two commenters stated that the rule shou ld address the procedure for

selecting indicator ranges for situations in which applicable requirements are intended to cause installation and operation of particular equipment or the use of process parameters. The rule should mak e clear that where an emission limit is in effect a secondary or deriv ed standard reflecting a typical or average emission rate expected to result from certain procedures, (1) the emission limit should not be us ed for developing indicator ranges, and (2) the rule does not require emission testing that is not otherwise required by applicable requirements. The commentersCAM RTC (Part III)

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noted that such a provision is of potential importa nce to many small

sources.

Response: Part 64 recognizes several situations for which additional justification or

testing for establishing monitoring or indicator ra nges is not necessary. The preamble to the final rule clarifies that, in a ccordance with § 64.4(b)(5), no additional justification is necess ary for the operation and monitoring of flares covered by design criteria in 40 CFR 60.18. The Agency is reviewing similar relief for other requir ements with specific design or similar stipulations.

Letter(s): Coalition for Clean Air Implementation ( VI-D-164); DuPont Engineering

(VI-D-127)

Comment c: One commenter requested clarification of who will be responsible for

developing CAM indicators. In some places EPA stat es that development of indicators rests with the source, bu t in other sections indicates that regulators will develop the appropri ate CAM indicators for specific control equipment according to the comment er. The commenter objected to state development of indicators due to lack of experience, knowledge and skills.

Response: The responsibility to develop and justify monitoring to satisfy part 64 is

clearly the source owner or operator’s responsibili ty; this responsibility includes establishing indicator ranges.

Letter(s): Public Service Company of Colorado (VI-D -219)

Comment d: One commenter recommended the addition o f "or designated conditions"

after "ranges" in § 64.6(a)(3). This revision is necessary because many indicators, such as "any visible emissions" or "the presence of a flame" are based on conditions but not numerical ranges.

Response: The Agency agrees with this suggestion, a nd the final rule reflects this

suggestion.

Letter(s): Texas Chemical Council (VI-D-236)CAM RTC (Part III)

October 2, 1997 Page 192

Comment e: Two commenters requested that EPA clarif y that the "indicators of

performance" listed in § 64.6(a)(1) are not an exc lusive list and one provided example text for the rule.

Response: The referenced list is not intended to be exclusive and the Agency

believes the final rule is clear on this point.

Letter(s): Eastman Chemical Company (VI-D-173); Tex as Chemical Council

(VI-D-236)

Comment f. One commenter suggested that the words " recorded findings" should be

eliminated from the reference to inspection and mai ntenance activities in § 64.6(a)(1) because inspection and maintenance pro cedures and policies should not require additional documentation for doc umentation's sake.

Response: As noted above, part 64 requires document ation sufficient for determining

compliance status only. The term recorded findings should be interpreted to mean that level of documentation, no t more.

Letter(s): Texas Chemical Council (VI-D-236)

Comment g: A commenter recommended revising § 64.6 (a)(3) to read, in part, that

"the reasonable assurance of compliance will be ass essed by specified monitoring . . . ." The commenter stated that this addition of the term "specified" is necessary to clarify that the reason able assurance of compliance is to be based on the monitoring prescri bed by CAM and not any additional or unrelated monitoring.

Response: The referenced language in the 1996 part 64 Draft has been revised in

the final rule and this comment is no longer applic able.

Letter(s): Texas Chemical Council (VI-D-236)

6.1.6: Backup Monitoring

Comment a: One state agency suggested that the CAM rule allow owners or operators

to propose alternative "back-up" methods of monitor ing which can be used for limited periods when the primary method of monitoring becomes unavailable. The commenter further suggested that the rule encourageCAM RTC (Part III)

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owners or operators to include back-up methods of monitoring in their proposals since these back-up monitoring methods mi ght only be available for a short time, but could help many sou rces to meet Subpart B performance criteria, such as data availability req uirements.

Response: Part 64 certainly does not preclude the u se of redundant monitoring to

supplement the monitoring specified in the permit.

Letter(s): State of Illinois EPA (VI-D-183)

6.1.7: Techniques for Supplementing/Refining Basic Monitoring

Comment a: One state agency suggested that the rule should allow for the use of

non-reference method continuous or periodic monitor ing to supplement, or as an alternative to, parameter monitoring. Und er the current rule, CAM plans would often include only parameter monito ring and no direct monitoring of emissions at all, according to the co mmenter, and thus this proposal would encourage the use of relatively low cost alternative continuous or periodic monitoring methodologies to ensure at least some direct monitoring of emissions. The commenters rec ommended that these monitoring methods be subject to less rigorou s quality assurance/quality control requirements than compara ble reference methods for the same pollutants.

Response: Part 64 does not preclude the use of alte rnative emission monitoring

approaches to supplement or in lieu of operational parameter monitoring. Periodic reverification of indicator ranges using s uch techniques is consistent with the quality assurance and quality c ontrol requirements in part 64. Such testing for reverification purposes or for other reasons may be accomplished using techniques acceptable to the permitting authority. Further, as noted earlier, the preamble to the cred ible evidence rule revisions make clear that compliance certifications may be based on information other than specified performance test r esults. One consideration in evaluating periodic testing to use in lieu of continuous parameter monitoring is the frequency of such testi ng and whether such testing is representative of the ongoing control de vice operations. In most cases, infrequent measurements with a test met hod (e.g., weekly, monthly, quarterly) is not sufficient to document o ngoing compliance operations.CAM RTC (Part III)

October 2, 1997 Page 194

Letter(s): State of New Jersey Dept. of Environment al Protection (VI-D-215)

Comment b. A vendor recommended that the CAM rule i nclude an incentive to adopt

Sequential Parametric Refinement (SPR) which will s trengthen CAM's effectiveness. According to the commenter, SPR is a process of continuous improvement that uses incrementally accu mulated data, including periodic checks of direct emissions to te st the model used to identify indicator ranges, and to refine the CAM ap proach and the indicator ranges adopted by the source. The commen ter described SPR as similar to a pro-active presumptive QIP, and add ed that the incentives that could be offered to promote SPR could include limiting exposure to permit violations or positive recognition that the source uses data of increased reliability. The commenter argued that S PR addresses many of the concerns about CAM implementation, including the degree of parametric representativeness and reliability, effe cts of source emissions variability, effects of time and changes on emissio ns, ability to evaluate CAM plans on a common basis, and a scientifically s ound basis for demonstrating compliance. As an example, the comme nter included a monitoring protocol that was submitted in connectio n with the OTC NO

x budget program that relies on SPR (including contin uous parametric data and periodic low-cost, high-quality direct emission s data).

Response: As noted above, periodic reverification o f monitoring indicator ranges is

consistent with the QA/QC requirements in part 64. The Agency believes such regular activities are appropriate for the rea sons mentioned by the

commenter.

Letter(s): Enerac (VI-D- 227)

6.1.8: Miscellaneous Comments

Comment a: One commenter argued that Subpart B must provide for the same type of

consideration of the acceptability of existing moni toring that is provided in Subpart C.

Response: The Agency agrees that the monitoring spe cified in many regulations is

adequate as stipulated or with few adjustments to m eet part 64 requirements. This is particularly true for regula tions requiring the use of continuous emission monitoring systems. As such, t he rule presumesCAM RTC (Part III)

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the general adequacy of existing CEMS, COMS or PEMS applications and allows the owner or operator to justify its propose d monitoring at least in part on existing requirements that establish the mo nitoring for the applicable pollutant-specific emissions unit. On t he other hand, many current regulations, including those developed by E PA, do not address monitoring sufficiently for compliance determinatio n purposes. In many cases, the current rules specify monitoring of only a single operating parameter, omit any development of indicator ranges , fail to define averaging times, and fail to prescribe an appropria te response. In addition, the monitoring in current rules frequentl y are inappropriate for the control technology used in facilities construct ed after the rule was published. Part 64 is intended to enhance current monitoring practices including revising or replacing that specified in e xisting rules if that monitoring is found inadequate.

Letter(s): Los Alamos National Laboratory (VI-D-210 )

Comment b: Another commenter proposed adding the wo rd "reasonably" to the phrase

"where necessary to assure compliance" in § 64.6(a )(1) so that the rule's language reflects EPA's intent as stated in the pre amble and elsewhere.

Response: The subject phrase is used in conjunction with defining pollutant capture

equipment that is part of the pollutant control sys tem necessary to achieve compliance with the applicable standard. In this c ontext, the term “reasonable assurance of compliance” is inappropria te.

Letter(s): Texas Chemical Council (VI-D-236)

Comment c: A commenter suggested that the use of mo nitoring already determined to

be adequate should be deemed acceptable. It will b e common for sources to use monitoring under post-November 15, 1 990 rules to satisfy CAM, according to the commenter, and owners or oper ators should not be forced to prove such monitoring is adequate.

Response: Part 64 includes an exemption from part 6 4 monitoring requirements for

pollutant-specific emissions units subject to post- 1990 EPA rules given that these rules will include monitoring requiremen ts adequate to determine compliance with applicable standards. Th e owners of such units will not be required to justify that such mon itoring satisfies part 64.CAM RTC (Part III)

October 2, 1997 Page 196

In addition, § 64.4(b)(4) allows an owner or operat or to rely on monitoring established in these exempt post-1990 standards as adequate for part 64 as applied to the same emissions unit for a differe nt pollutant, if the same control equipment is used to control both pollutant s. For instance, a post-1990 MACT rule may establish control device pa rameter monitoring to assure compliance with the MACT limits. If the same unit also uses the same control device to comply with an applicabl e VOC limit, this provision would allow the owner or operator to rely presumptively on the MACT precedent to satisfy part 64 for the VOC requi rements.

Letter(s): Exxon Chemical Americas (VI-D-128)

Comment d: One commenter noted that the criteria of §§ 64.6(a)(1) and 64.6(a)(2)

seem to be redundant.

Response: The final part 64 has been revised to rem ove repetitions, as necessary. Letter(s): Class of '85 Regulatory Response Group ( VI-D-161)

Section 6.2 Subpart B Performance Criteria

6.2.1: [Reserved]

6.2.2: Verification Requirements

Comment a: Several commenters stated that manufactu rer and vendor

recommendations should not be given presumptive wei ght in establishing performance requirements, and noted that there is n o guarantee that such recommendations reflect good engineering standards. In addition, they stated that vendors may tailor recommendations to i mprove product marketing. One commenter argued that this requirem ent (and the similar requirement for QA/QC) could be read to require sub mission of construction drawings, detailed project schedules, and similar supporting documentation and involve hundreds of steps. The c ommenters recommended that the rule only provide that such re commendations may be considered. Another commenter stated generally that it supported the flexibility allowed to use procedures other than ma nufacturer recommendations. However, another commenter argued that the § 64.6(b)(2) documentation requirements are too burde nsome. The commenter objected to the requirement to document m odifications toCAM RTC (Part III)

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installation requirements, calibration and start-up , especially where the monitoring system is already in place. This requir ement would only make the CAM plan more complicated and is unnecessary du e to general requirements to properly operate and maintain monit ors according to the commenter. Another commenter noted generally that although this section is labeled "performance criteria" it is rea lly a mix of criteria and submission requirements. The commenter recommended revising § 64.6(b) to be a short list of performance criteria and moving all documentation requirements to § 64.7.

Response: The final part 64 has been revised to cla rify that documentation of

monitoring adequacy may be based on a number of inf ormation sources with presumption applied only to performance test d ata. Further, the rule has been reformatted to clarify and differentiate b etween minimum permit requirements and other documentation elements.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Eastman

Chemical Company (VI-D-173); Exxon Chemical America s (VI-D-128); General Electric Company (VI-D-156); Southern Compa ny Services (VI-D-171); Texas Chemical Council (VI-D-236)

Comment b: One commenter recommended that § 64.6(b )(2) be applicable only

where the monitoring involves new or modified monit oring.

Response: Part 64 has been revised to clarify this and other documentation

requirements.

Letter(s): Exxon Chemical Americas (VI-D-128)

6.2.3: QA/QC Criteria

Comment a: Some commenters stated that manufacturer and vendor

recommendations should not be given presumptive wei ght in establishing QA/QC requirements. See detailed summary under sec tion 6.2.2.

Response: See the response to the same comments in section 6.2.2 (Part III), above.CAM RTC (Part III)

October 2, 1997 Page 198

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Exxon

Chemical Americas (VI-D-128); General Electric Comp any (VI-D-156); Southern Company Services (VI-D-171)

Comment b: One commenter argued that part 64 should not require the inclusion of

QA/QC practices in operating permit applications. Including such practices in the permit application will make it mo re difficult to improve or alter QA/QC practices because such changes could on ly be made through a burdensome permit revision process.

Response: The Agency disagrees. There are several examples of federal rules that

specify minimum QA/QC practices. See 40 CFR 60.13 (general QA/QC for CEMS and COMS); subpart O, 40 CFR 60.153 (perio dic calibration of parameter monitors). The part 64 requirements are designed to build on these types of existing requirements. The part 64 requirements do not require complete QA/QC plans or SOPs to be incorpor ated into a permit. Sources are always free to improve and alter QA/QC practices so long as the minimum required QA/QC is still performed.

Letter(s): Texas Chemical Council (VI-D-236)

6.2.4: Monitoring Frequency Requirements

Comment a: One commenter argued that the requiremen ts should be more specific.

The commenter noted that the provisions for sources to propose frequency of monitoring, data collection procedures , and averaging periods are too vague and invite owners to devise m onitoring that is too

lenient to detect excursions and exceedances. Anot her commenter suggested that EPA should clarify that the monitori ng frequency criteria do not require continuous monitoring. Since certain l anguage in § 64.6(b) and EPA's statement in the preamble that "this requ irement could result in frequent, near continuous collection of parametric data . . ." could be interpreted to require continuous monitoring for Su bpart B units, the

commenter stated that EPA should make it clear in t he rule that continuous monitoring is not required and develop g uidance materials describing appropriate approaches to satisfying the monitoring frequency criteria assuming this is not EPA's intent.CAM RTC (Part III)

October 2, 1997 Page 199

Response: The Agency agrees that the frequency of d ata collection for monitoring is

one the rule should specify in more detail. The Ag ency has revised the rule to include a presumptive monitoring data colle ction frequency (i.e., at least one value every 15 minutes) for units with po st-control emissions greater than the major source threshold. The owner or operator may submit site-specific justification for less frequen t monitoring at such units. Data collection frequency for smaller units may be less but at a minimum should provide for at least some form of daily chec k. For instance, an owner or operator could visually check a small carb on adsorber for continued operation on a daily basis and then condu ct a less frequent periodic check for breakthrough (such as testing th e device with a portable analyzer every two weeks, or other time fr ames appropriate for the device's adsorption cycle).

Letter(s): Natural Resources Defense Council (VI-D- 151); Specialty Steel Industry

of North America (VI-D-143); Steel Manufacturers As sociation (SMA) (VI-D-144)

Comment b: One commenter suggested that the rule al low for a graduated frequency

based on performance. For instance, the commenter stated that sources

with few excursions/exceedances should be able to m onitor less frequently. Another commenter added that this conc ept of rewarding good performance should be extended to reducing oth er part 64 requirements, such as reduced reporting.

Response: The Agency agrees that incentives for red uced monitoring or reporting

requirements can be effective for some situations a nd part 64 does not preclude the application of such incentives through the permitting process. On the other hand, part 64 is a broadly applicable rule for which such incentives or other site-specific elements can not be adequately described

or controlled.

Letter(s): Air Control Techniques, P.C. (VI-D-202); Eli Lilly Company (VI-D-124)

Comment c: One commenter argued that the rule shoul d presume the appropriateness

of longer versus shorter averaging periods. The co mmenter noted that, if the data are averaged over too short a time, source s could initiate misguided corrective action that actually increases emissions and damages equipment.CAM RTC (Part III)

October 2, 1997 Page 200

Response: The Agency believes that part 64 should m ake no presumption about

averaging times except to confirm that the averagin g time be representative of the characteristics of the contro l technology and provide data at a frequency sufficient to allow effective a nd timely correction, as necessary. The source owners have the opportunity and responsibility to identify appropriate averaging times to accomplish this purpose.

Letter(s): Air Control Techniques, P.C. (VI-D-202)

6.2.5: Data Availability Provisions

Comment a: Certain commenters supported the 90 perc ent data availability

requirement or requested a higher data availability . A state agency association recommended that EPA retain the propose d data availability requirement with only a narrow exemption for source s that demonstrate extreme economic hardship. A state agency urged EP A to investigate and require greater data availability for those mon itoring systems that have demonstrated through existing installations th at they can achieve data availability greater than 90 percent, such as CEMS, PEMS, and parameter monitoring systems. For example, CEMS ins talled and certified in the commenter's state routinely meet or exceed d ata availability of 95 percent. An environmental group suggested that the rule should not allow a percentage of data availability lower than 90 percent under any circumstances, even if an underlying rule requires less data availability. A data gap of 10 percent, for example, could represen t the need to implement a QIP twice over, according to the commen ter, and thus lower data availability could allow significant violation s of emission standards to go unnoticed.

Several industry commenters, however, argued that t he default 90 percent data availability requirement is too stringent. Th ey stated that the 90 percent level in the rule is substantially more str ingent than several recent MACT standards despite EPA's statement at the July 1996 stakeholders meeting that one of the principles of CAM was to bu ild on current monitoring requirements. For example, the recently -issued Polymers & Resins Group 1 MACT requires 75 percent data availa bility. 40 CFR 63.505(g)(1)(ii). The SOCMI HON data availability requirement is also 75 percent. 40 CFR 63.152(c)(2)(ii)(A)(2) and (A)(3). Thus, they argued, under the current CAM draft, there would be a lower data availability requirement for air toxics than for criteria pollut ants. One of theCAM RTC (Part III)

October 2, 1997 Page 201

commenters recommended setting the CAM minimum data availability standard at 75 percent, and retaining the option to seek adjustment of the data availability level on a unit specific basis, w hich would be triggered too often with a 90 percent requirement. The commenter also stated that it is not aware of any EPA regulations other that the one cited in the preamble that have a data availability requirement of 90 per cent. One commenter argued that the requirement should be eliminated or set at what is necessary to provide a reasonable assurance of comp liance. One commenter argued for a lower data availability beca use the amount of instrumentation involved in a CAM plan could be sig nificantly higher than with a gas monitoring system. Another argued that the costs of trying to meet the 90 percent requirement are prohibitive, an d suggested that 80 percent would be a reasonable alternative.

Certain commenters stated that, based on CEMS exper ience, the amount

of downtime under ideal circumstances is at least 6 -7.5 percent of the time. Since most sources operate under less than i deal circumstances, the commenters stated that the rule must have adequ ate flexibility to provide for downtime associated with routine mainte nance as well as

downtime associated with unscheduled maintenance an d malfunctions; otherwise, costly redundant systems may be necessar y. They recommended that the rule include no presumptions. Another commenter argued that since under NSPS one invalid 15-minute data point invalidates an entire hour of data, a 30-minu te QA check that straddles two hours and 3 more invalid 15 minute pe riods would invalidate a day's data. Finally, another commenter argued si milarly that the 90 percent value is arbitrary and likely to be unachie vable unless the rule makes appropriate provision for calibration, mainte nance and repair.

Another commenter stated that the CAM rule should n ot set a data availability requirement of "at least" a certain pe rcentage where it is clear the percentage is supposed to be a presumptive guid eline that may be adjusted upward or downward by permitting authoriti es. In addition, there is no justification for requiring any higher degree of data availability than whatever is necessary to reasonably assure complian ce.

Industry commenters also argued against any presump tive amount based on the diverse set of sources and monitoring requir ements to which the rule will apply. One commenter stated that EPA sho uld not attempt to define a generic data availability requirement, but should allow for different levels depending on the significance of t he source and theCAM RTC (Part III)

October 2, 1997 Page 202

monitoring method. Others also noted that EPA shou ld give the source and the permitting authority the opportunity to wor k it out in the CAM plan. If the rule requires monitor availability to be in cluded as a permit term, they stated that the rule must at least provide the flexibility for ensuring that the specification is clear and can be met. An other industry commenter argued that the mandatory 90 percent data availability requirement is an example of how the rule does not provide adequate latitude for permitting authorities.

Similarly, commenters noted that it is inappropriat e to establish a presumptive data availability requirement under a p rogram like CAM where monitoring may be new or experimental. They argued that EPA has no technical basis for the presumption and must allow for many complex issues to be resolved in establishing a dat a availability requirement. The relative stringency of an availab ility requirement depends on numerous factors, such as monitor accura cy specifications, number of data points for a valid average, number o f averaging periods in a reporting period and the length of the reporting period. One commenter argued that EPA must explain the technical basis fo r requiring at least 90 percent data availability. A state agency suggeste d that the 90 percent data availability requirement should be issued as g uidance similar to the NSPS excess emission report program. This would al low permitting authorities to address the data availability requir ement on a case by case basis since in some cases, less availability may be warranted and in others more may be warranted the commenter argued t hat a single presumption could lead to inappropriate requirement s.

Response: The Agency agrees that monitoring should be conducted to the extent

feasible all the time the affected pollutant-specif ic emissions unit is operating and that a separate permit condition spec ifying an enforceable minimum data availability limit is essentially a ca se-by-case determination. Part 64 has been revised to delete the specific mi nimum data availability requirement and to clarify the general duty require ment to operate and maintain monitoring continuously (except for malfun ction, associated repair, or required QA/QC periods). Monitor malfun ctions are limited to situations that are not reasonably preventable by t he owner or operator. Specific minimum data availability requirements may be addressed on a permit-specific basis.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Association

of Battery Recyclers (VI-D-155); Baltimore Gas and Electric CompanyCAM RTC (Part III)

October 2, 1997 Page 203

(VI-D-177); Chemical Manufacturers Association (VI- D-152); Chevron Companies (VI-D-132); Clean Air Implementation Proj ect (VI-D-153); Colorado Association of Commerce and Industry (VI-D -182); DuPont Engineering (VI-D-127); Eastman Chemical Company (V I-D-173); Exxon Chemical Americas (VI-D-128); General Electric Comp any (VI-D-156); Natural Resources Defense Council (VI-D-151); Nebra ska Department of Environmental Quality (VI-D-211); NESCAUM (VI-D-192 ); Ohio EPA, Division of Air Pollution Control (VI-D-180); Pharm aceutical Research and Manufacturers of America (VI-D-217); Phillips Petro leum Company (VI-D-131); Rubber Manufacturers Association (VI-D- 149); South Carolina Electric & Gas Company (VI-D-116); Southern Company Services (VI-D-171); Southwestern Public Service Company (VI -D-224); Texas Chemical Council (VI-D-236); UCAR Carbon Company, I nc. (VI-D-122); Utility Air Regulatory Group (VI-D-140); Wisconsin Electric Power Company (VI-D-130)

Comment b: Another state agency supported a 90 perc ent data availability requirement

to the extent that the requirement applies under no rmal circumstances. The agency recommended that the rule explicitly gra nt discretion to the permitting authority to address the impact of unusu al circumstances such as catastrophic failures of instrumentation and mal functions of relatively short duration on data availability. The agency no ted that such failures or malfunctions can be magnified in percentage terms d ue to reduced source operating time. As an example, this comment er discussed the fact that a 24 hour failure of a monitoring system at a backup unit with 200 operating hours during a period may not be a source of concern even though the malfunction results in a 12 percent moni toring downtime.

Response: See response to Comment a, above.

Letter(s): State of Illinois EPA (VI-D-183)

Comment c: One agency stated that the data availabi lity requirements should include

an option for monitoring equipment required to have an alarm or an interlock which reacts when monitored parameters ex ceed or fall below a

certain level. The commenter stated that there sho uld be no requirement that units using such equipment must continually re cord the monitored parameter during normal operation, and discussed an example of an afterburner required to maintain a minimum temperat ure and required toCAM RTC (Part III)

October 2, 1997 Page 204

install an alarm which goes off if the minimum temp erature is not

maintained.

Response: Part 64 has been revised to clarify minim um data collection frequency;

that is, the frequency at which measurements are ma de and used. Data recording frequency, whether for individual data po ints, averages, or alarm indications can be specified on a site-specific bas is, as necessary.

Letter(s): South Coast Air Quality Management Distr ict (VI-D-233)

Comment d: One trade association requested EPA to c onfirm that the minimum data

availability requirement would be calculated based on the percentage of time that the monitoring equipment was in service, excluding from the denominator time that the equipment was down for ro utine or scheduled

calibration and maintenance. Another commenter sta ted that the rule should clearly exempt start-up, shut-down and malfu nction periods in determining data availability, particularly when no t addressed by underlying standards. One commenter recommended th at the data availability requirement account for seasonal opera tions by adding "while the plant is in operation" to § 64.6(b)(5). Certa in commenters requested that EPA explain how the data availability percenta ge is determined. A state agency requested specific examples. Another commenter stated that it believes that the provision is intended to apply to the monitoring frequency and associated number of samples or measu rements indicated by the CAM plan, but that the language could be int erpreted to apply to the number of averaging periods during which the so urce is in operation. Another commenter elaborated on this ambiguity and stated that the first alternative is overly stringent in comparison to th e 75 percent data availability requirement in other recent regulation s. This commenter felt that the second interpretation could be acceptable if EPA sets a level of data required within each averaging period at a rea sonable level such as 75 percent.

Response: The Agency believes that data availabilit y, if required as a separate permit

requirement (see response to Comment a, above), is correctly calculated based on the operating time of the pollutant-specif ic emission unit and may include allowances for specific monitoring down time periods, as appropriate.CAM RTC (Part III)

October 2, 1997 Page 205

Letter(s): Chemical Manufacturers Association (VI-D -152); Dow Chemical Company

(VI-D-120); DuPont Engineering (VI-D-127); South Co ast Air Quality Management District (VI-D-233); The Fertilizer Inst itute (VI-D-145)

Comment e: Two commenters stated that the provision s giving permitting authorities

the discretion to require a data availability perce ntage of greater than 90 percent should be eliminated. One of the commenter s recommended revisions to § 64.6(b)(5)(ii) to eliminate permitt ing authority discretion to require greater than 90 percent data availability. This commenter also stated that 90 percent is the highest achievable da ta availability based on prior EPA studies showing that CEMS experience outa ges for at least 10 percent of their operating times due to equipment f ailure and malfunction.

Response: See response to Comment a, above.

Letter(s): NorAm Gas Transmission Company (VI-D-145 2); Southern Company

Services (VI-D-171)

Comment f: An environmental organization requested that the rule ensure that all valid

data is required to be reported even if a minimum d ata availability is exceeded. The organization noted that it is necess ary to avoid the rule being construed to allow owners to drop their worst data.

Response: The Agency agrees and part 64 includes a requirement that “The owner or

operator shall use all the data collected... in ass essing the operation of the control device and associated control system.”

Letter(s): Natural Resources Defense Council (VI-D- 151)

Comment g: One commenter requested an exemption fro m § 64.6(b)(5)(ii) for units

whose monitoring includes missing data substitution procedures. The commenter noted that requirements such as those in part 75 that use punitive data substitution for periods of missing d ata encourage units to correct monitoring problems expeditiously. Units th at use such monitoring protocols should not be subject to the 90 percent d ata availability requirement according to the commenter.CAM RTC (Part III)

October 2, 1997 Page 206

Response: Missing data substitution is appropriate for mass emission trading

programs to ensure equitable trading. Such missing data substitution procedures are not appropriate for ongoing determin ations of compliance with applicable requirements on a pollutant-specifi c emission unit basis.

Letter(s): Class of '85 Regulatory Response Group ( VI-D-161)

6.2.6: Miscellaneous Subpart B Performance Criteria Issues

Comment a: Certain commenters argued that the perfo rmance criteria are at odds with

the intent stated in the preamble and general crite ria provisions. They argued that the requirement in the introductory tex t of § 64.6(b) that CAM plans be designed to provide reliable data for detecting an exceedance or excursion contradicts the stated goal of documenting operation of controls to provide a reasonable assur ance of compliance.

Moreover, one of the commenters asserted that even the preamble does not completely reflect the original intent of CAM t o generate an understanding of whether controls are performing as envisioned. Other commenters stated that EPA apparently expects to ha ve a parameter that reflects reference test method compliance with an u nderlying standard. However, correlating parameter data with emissions is expensive and difficult and in some cases not even possible, acco rding to the

commenter.

Response: The language concerning reliable data has been revised to reflect more

clearly the Agency's intent. As discussed in detai l in Section 6.1.1 (Part III), above, the goal of part 64 is to provide a re asonable assurance of compliance by monitoring the operation of control d evices and, as necessary, capture systems and processes. It is no t a requirement of part 64 to have a parameter that reflects with abso lute precision reference test methods results. However, the monitoring must indicate that control devices and other critical operations have not chan ged adversely in a manner that result in violations of applicable requ irements.

Letter(s): Clean Air Implementation Project (VI-D-1 53); Exxon Company, USA

(VI-D-135); National Environmental Development Asso ciation (VI-D-169)

Comment b: One commenter noted that the performance criteria do not seem

appropriate for non-hardware monitoring approaches. The commenterCAM RTC (Part III)

October 2, 1997 Page 207

suggested that the requirements that apply solely t o hardware systems (such as (b)(2) and (3)) should be clearly distingu ished from more generally applicable requirements.

Response: The Agency believes that the performance criteria are sufficiently general

to apply to noninstrumental monitoring techniques, but also notes that the phrase "monitoring equipment" is used where appropr iate to indicate performance criteria that are aimed at hardware mon itoring approaches.

Letter(s): Exxon Chemical Americas (VI-D-128)

Comment c: One commenter stated that EPA has not de monstrated that a monitoring

program can be developed for most control devices u nder which indicator ranges will show that unit emissions satisfy all em ission limits or standards. The commenter argued that in order for i ndicator ranges to be a reasonably reliable means of assuring compliance, the monitored parameter or parameters must fall outside the indic ator range during every set of control device and process conditions which result in the violation of applicable standards which would requi re monitoring which directly expresses the emission rate as a function of monitored parameters. The commenter quoted a paper entitled "An Independent Review of CAM" to support the concept that it is im possible to directly correlate monitored parameters and emission rates a nd concluded that the use of indicator ranges has not been proven to be sufficiently reliable to assure compliance with applicable limits. Anoth er commenter used sewage sludge incinerators as an example, providing detailed review of EPA studies on the lack of a meaningful correlation between operating parameters and particulate matter emissions for the se incinerators, as well as the results of a long-term study involving the commenter's

incinerators. The commenter noted that this same i ssue applies to the possible use of opacity to assure compliance with p articulate matter limits. For sewage sludge incinerators with venturi scrubb ers, commenter described how past studies have documented no stron g correlation between PM emissions and opacity. Thus, the commen ter disagreed with EPA's contention that opacity levels are gener ally set high enough to represent likely PM exceedances.

Response: The Agency agrees direct correlation betw een monitored parameters and

emission rates can be difficult, expensive, and som etimes impossible with any specific degree of certainty. This is a primar y reason the CAM rule requirements include the use of design, historical, and other information inCAM RTC (Part III)

October 2, 1997 Page 208

conjunction with performance test results for estab lishing indicator ranges that provide a reasonable assurance of compliance, not an absolute statistical correlation. On the other hand, the Ag ency believes the commenter has misinterpreted the conclusion in Mr. Richards’ paper (docket item A-91-52-VI-I-6) and other similar eval uations that parameter monitoring is incapable of providing a reasonable a ssurance of ongoing compliance performance. As noted in response to Co mment b of 6.1.1 (Part III), direct measurement or a statistical cor relation analysis of operating parameters with emission values is not ne cessary in order to establish compliance status; however, there are man y examples of parameter measurements that provide a very good ind ication of control device performance sufficient to meet part 64 requi rements. Mr. Richards’ paper provides several examples of such s ituations. Mr. Richards’ paper does note that CAM will not be base d on a precise correlation between parameters and emissions and wi ll not provide data

on actual emissions; however, Mr. Richards conclude s that monitoring under the CAM approach should be able to identify “ significant emission increases.” Any comments by Mr. Richards that appe ar critical of the CAM approach’s ability to provide a reasonable assu rance of compliance may be due in part to Mr. Richards’ admitted misapp rehension regarding the breadth of the technical justification required for CAM plans.

The Agency also recognizes that the relationship be tween a particular parameter measurement and compliance may not be ade quate. This may very well be the case with the relationship bet ween opacity and particulate matter emissions especially when applie d to a scrubber for an incinerator or any other combustion device because of condensing moisture acting as interferences in opacity measure ments and other condensible materials producing highly variable opa city results. For such situations, part 64 requires that the monitoring sh ould not include that parameter or supplement it with measurements of add itional control device operational parameters. Part 64 provides th e framework for establishing adequate monitoring; the rule does not specify which parameters are more appropriately monitored for spe cific situations.

Letter(s): S. Fitzsimmons (VI-D-201); Metropolitan Council (VI-D-214)

Section 6.3: Use of CEMS, COMS, PEMS in Subpart BCAM RTC (Part III)

October 2, 1997 Page 209

Comment a: One commenter believed that sources usin g CEMS, COMS and PEMS

should not be required to develop CAM plans. The c ommenter recommended revising § 64.6(c)(2) to replace the p hrase "to satisfy the general design criteria . . ." with "exempt from th is part 64". The commenter argued that sources using CEMS, COMS or P EMS and satisfying the requirements of this provision shoul d already provide reasonable assurance of compliance; requiring furth er documentation would be overly burdensome and duplicative.

Response: For pollutant-specific emission units wit h CEMS requirements, part 64

requires only that the permit reflect that CEMS wil l be used in lieu of other parameter monitoring as described in part 64. Prov ided that the CEMS is operated in accordance with other applicable requir ements, no other documentation is necessary.

Letter(s): Texas Chemical Council (VI-D-236)

Comment b: Some commenters argued that sources shou ld not be required to use

existing CEMS, COMS or PEMS for part 64 purposes. The commenters argued that this requirement could have the effect of establishing indicator monitoring as reference method data for standards. Another commenter

stated that sources should have the choice of wheth er or not to use COMS for establishing indicator ranges in CAM plans , particularly if the source has a particulate matter limitation (where t here may be a relationship at the particular source between opaci ty and PM).

Response: The requirement that CEMS, including COMS used to measure an opacity

limit that applies as a surrogate limit for particu late matter control and PEMS as an approved alternative to CEMS, required b y rule be applied to satisfy part 64 is consistent with 40 CFR 70.6(a)(3 ).

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Baltimore

Gas and Electric Company (VI-D-177); General Electr ic Company (VI-D-156)

Comment c: An industry coalition stated that source s using CEMS, COMS, and PEMS

should not be required to redesign their systems to allow for reporting of exceedances. The commenter noted that incorporatin g a data averaging period so that the monitoring results can demonstra te exceedances mayCAM RTC (Part III)

October 2, 1997 Page 210

be complicated, costly or even impossible, and thus this sort of design change should be optional. Another commenter state d that the monitoring instrumentation should not need to produ ce data in the same terms as an applicable emission limit or standard. The commenter suggested that EPA should clarify § 64.6(c)(3)(ii) so that the monitoring instrument does not have to produce data in the "ex act units" of an emission limit or standard so long as a CAM plan in cludes a calculation or

calculations which convert monitored measurements t o values comparable with applicable standards. Another comm enter also requested that EPA clarify § 64.6(c)(3) so that it is clear that the instrument does not have to produce data in terms o f the emission limit if the source can convert the instrument data using st andard engineering

conversions.

Response: The requirement in part 64 for the owner to use data from CEMS, COMS,

or PEMS in satisfying part 64 applies to such monit oring as required by an underlying regulation. The rule clarifies that dat a from such monitoring shall be consistent with the applicable standard ra ther than insist that the data be reported in the actual units of the emissio n limitation if such conversions can be provided elsewhere. The additio nal description of such monitoring is intended to reduce the burden of preparing justification beyond the customary applicable QA/QC requirements in addition to ensuring the quality of data produced. The require ments in this section are not intended to apply to the use of similar tec hnology used for monitoring internal operations (i.e., process monit oring) unless the source owner determines to use such monitoring to satisfy CAM requirements.

Letter(s): Clean Air Implementation Project (VI-D-1 53); Phillips Petroleum

Company (VI-D-131); Texas Chemical Council (VI-D-23 6)

Comment d: Some commenters argued that COMS should not be subject to indicator

ranges. One commenter stated its belief that EPA d id not intend to require that all COMS be subject to the criteria fo r establishing indicator ranges. If the source has an opacity standard for which a CAM plan is required, the commenter understood the draft rule t o require that the opacity standard be used in lieu of an indicator ra nge for that plan. Further, if the source has a particulate matter lim itation for which a CAM plan is required, the commenter understood that it would be the source's choice whether to use the COMS in a particulate mat ter CAM plan (based on the relationship at the particular source betwee n opacity and PM).CAM RTC (Part III)

October 2, 1997 Page 211

Thus, the following change is suggested: "...provid ed that if a COMS is used in a particulate matter CAM plan, that COMS sh all be also subject to the criteria for establishing indicator ranges unde r paragraph (a)(3) of this chapter as it applies to the particulate matter CAM plan." Steel industry commenters argued that indicator ranges are unneces sary and inappropriate for many sources required to use COMS . For example, for electric arc furnaces, the NSPS require some source s to use a COMS to monitor the applicable 3 percent opacity standard. These commenters argued that this opacity standard is directly corre lated to the applicable particulate matter standard. Requiring an indicato r range below the opacity standard would increase the stringency of t he underlying particulate matter standard, according to the comme nters. The

commenters also noted that it would be difficult to establish a range below what is essentially a no visible emissions standard . An electric utility provided a detailed summary of correlation testing done at several units operated by the commenter which show that the parti culate matter standard is met even with opacity levels at or abov e the applicable opacity standard. Therefore, the commenter disagreed with assertion in the discussion document that opacity levels near the op acity standard likely represent particulate matter exceedances and EPA's conclusion that lower opacity "indicator ranges" are therefore appr opriate.

Response: The commenter is correct that a COMS requ ired for monitoring opacity by

an applicable standard may be applied at the source owner’s option for monitoring of particulate matter control measures. If the COMS is used in monitoring for particulate matter control, the r equirement to establish appropriate indicator ranges is appropriate given t hat the regulatory limits for opacity do not necessarily represent conditions for minimizing particulate emissions. See Section II.C. of the pr eamble to the final rule

for further discussion. On the other hand, the rul e is not intended to invalidate any separate regulatory requirement to c orrelate opacity values with specific emission values as described for the steel industry regulations. A monitoring system that provides, by rule, exceedance of a specific opacity limit coincides with an exceedance of the applicable particulate emission limit is consistent with the d efinition of a CEMS or PEMS in part 64 and, as such, must be used as the u nderlying rule requires.

Letter(s): Specialty Steel Industry of North Americ a (VI-D-143); Steel Manufacturers

Association (SMA) (VI-D-144); Tennessee Valley Auth ority (VI-D-162); Utility Air Regulatory Group (VI-D-140)CAM RTC (Part III)

October 2, 1997 Page 212

Comment e: One commenter stated that any surrogate opacity CAM plan should have

the same averaging period as the applicable standar d. The commenter asserted that opacity has always been used as a sur rogate for demonstrating PM control equipment operation, and f or CAM, the opacity should have the same averaging period as in the und erlying standard (such as a 3-hour average of 20 percent as in the p ower plant NSPS). Another commenter suggested that if a COMS is used as a surrogate for particulate matter, then the averaging period shoul d be consistent with the underlying particulate matter standard, i.e., longe r than 6 minutes, especially given EPA's statement that the opacity i ndicator range should generally be set below the applicable opacity stand ard and the fact that

EPA can use the data for enforcement.

Response: The Agency agrees with the commenter that the averaging time for an

indicator range using COMS as part of the monitorin g need not be the 6-minute average required for opacity monitoring. Part 64 makes clear that the averaging time for indicator range monitor ing be commensurate with the time period over which a change in the con trol device performance that could require actions by the sourc e owner to return operations to normal conditions is likely to be obs erved. The rule does

not intend that this time be the same, or either sh orter or longer, than the averaging time of the applicable emission limitatio n.

Letter(s): Kennecott Corporation (VI-D-119); Texas Utility Services, Inc. (VI-D-121)

Comment f: One commenter stated that § 64.6(c)(3)( iii) should be revised to allow for

reporting of excursions as well as exceedances. A commenter suggested that exceedances that occur during excuse d periods be reported as excursions.

Response: The final rule adds the phrase "or excurs ions if applicable to a COMS

used to assure compliance with a particulate matter standard." This revision accounts for the only situation in which a CEMS, COMS or PEMS can provide "excursion" data as opposed to "exceeda nce" data. The Agency disagrees with the concept that exceedances during potentially excused periods should be classified as "excursions " because that approach is inconsistent with the definitions of th ese two terms.CAM RTC (Part III)

October 2, 1997 Page 213

Letter(s): Chemical Manufacturers Association (VI-D -258); General Electric

Company (VI-D-156)

Comment g: Utility commenters argued that the test for determining averaging times for

exceedances should be similar to the one provided b y EPA for determining the appropriate averaging period for de termining when an

"excursion" has occurred. The test should be the t ime period over which an exceedance is likely to be observed based on the characteristics and typical variability of the PSEU.

Response: Part of the definition of exceedance is t hat it be consistent with any

averaging period specified by the applicable rule. The Agency does not intend to revise any existing requirements with pub lication of part 64 including averaging times specified in applicable r ules for determining excess emissions. However, if an underlying rule i s silent on this issue,

the final rule does cross-reference the criteria in § 64.3(b)(4) for establishing an appropriate averaging period.

Letter(s): South Carolina Electric & Gas Company (V I-D-116); Utility Air Regulatory

Group (VI-D-140); Virginia Power (VI-D-226)

Comment h: One local agency recommended that the § 64.6(b)(3) quality assurance

and control provisions should require that sources using CEMS follow 40 CFR 60, Appendix F. The commenter noted that in th e discussion of § 64.6(b)(3), EPA states that the QA/QC program in 40 CFR 60, Appendix F, is not required for CEMS because they are not be ing used for "direct continuous monitoring compliance," and the discussi on states that only the 40 CFR 60, Appendix B requirements of an initia l CEMS calibration drift test and RATA test followed by daily zero and span calculations need be met. The agency stated that the more rigorous A ppendix F program, including quarterly calibration gas audits and annu al RATA tests, is needed to verify ongoing accuracy.

Response: Appendix F was developed specifically for the verification of data where a

CEMS is established as the test method for making c ontinuous compliance determinations. The Agency believes tha t less rigorous

QA/QC is sufficient for CEMS used to demonstrate a reasonable assurance of compliance with emission standards.CAM RTC (Part III)

October 2, 1997 Page 214

Letter(s): San Diego County Air Pollution Control D istrict (VI-D-191)

Comment i: One commenter argued that § 64.6(c) sho uld be revised to allow

sources to demonstrate that any and all existing mo nitoring, and not just CEMS, COMS, and PEMS, meets Subpart B requirements. The commenter noted that if EPA continues to base Subpa rt B applicability on pre-control device emissions, EPA should revise § 64.6(c) to allow sources to demonstrate through petitions to their p ermitting authority that monitoring requirements in existing permits or unde r existing regulations are sufficient to meet Subpart B CAM requirements. For example, if an existing construction permit requires the installat ion, operation, and monitoring of a specified monitoring approach which does not meet the definition of a CEMS, COMS, or PEMS, the rule shoul d explicitly state that the source can demonstrate that such required monit oring satisfies Subpart B according to the commenter. The commente r concluded that imposing duplicative monitoring requirements on the se types of sources

will result in little or no environmental benefit.

Response The provisions in § 64.4 explicitly allow for this approach. The Agency

has not presumed the appropriateness of such other approaches but does allow a source to propose that its existing monitor ing is adequate to satisfy part 64.

Letter(s): Pharmaceutical Research and Manufacturer s of America (VI-D-217)

Comment j: A vendor organization argued that the dr aft rule creates a disincentive to

use CEMS. The commenter expressed concern that the requirement in § 64.6(c)(3) that all CEMS installed to meet CAM mu st allow for reporting of exceedances would discourage sources from choosi ng CEMS because

the credible evidence rule would allow for the use of such data in

enforcement actions and stated that few sources wou ld therefore choose a monitoring approach with a direct bearing on comp liance status.

Response: The Agency disagrees that part 64 provide s disincentive to install CEMS

on two counts. First, part 64 provides relief from the additional documentation that part 64 requires if the CEMS is required by an applicable requirement and reports data in units of the applicable emission limitation or standard. This stipulation that data must be reported in units of the applicable standard would not apply for CEMSCAM RTC (Part III)

October 2, 1997 Page 215

proposed by the owner or operator to satisfy CAM if no CEMS were required under the applicable requirement. Second, part 64 does not require that data from CEMS not required by the applicable rule be used as part of determining control device indicator ran ges. This is not to say that such data may not be subject to use as credibl e evidence of emissions violations; that is not an issue with par t 64 but with evidentiary

decisions made in the courts.

Letter(s): Institute of Clean Air Companies (VI-D-1 39)

Comment k. One industry commenter opposed imposing § 60.13 and Appendix B

requirements on CEMS or COMS used for CAM unless th ey are necessary to meet CAM performance design requiremen ts.

Response: The final rule states that a CEMS or COMS that meets these

requirements (or other comparable requirements such as those in 40 CFR 51.214 or Appendix P of part 51) is deemed to satis fy the part 64 design criteria. The rule does not exclude the possibilit y that an owner or operator could propose a CEMS or COMS that does not meet these requirements. However, any such proposal would not be entitled to the presumptive acceptability provisions in § 64.4(b).

Letter(s): Exxon Chemical Americas (VI-D-128)

Section 6.4: Cost/Source Features as Factors in Mo nitoring Selection

Comment a: Several industry commenters recommended specifically requiring a

cost-effectiveness consideration as part of the cri teria for selecting monitoring under part 64. A number of commenters p roposed criteria to

determine what constitutes a "reasonable assurance of compliance." According to the commenters, to determine what moni toring methodology provides a level of assurance that is reasonable, t he cost of the methodology should be considered in light of the fo llowing factors: 1) Reliability of the control methodology, where appli cable; 2) Actual and potential emissions of the unit; 3) Emissions varia bility and pollutant characteristics; and 4) Reliability of the monitori ng methodology. The commenters stated that a facility would consider wh ether current monitoring is appropriate considering these factors . The commenters pointed out that if the source determines additiona l monitoring is needed,CAM RTC (Part III)

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it would explain qualitatively how it reached its c onclusions, and a permitting authority would either accept the propos al or suggest another alternative, having evaluated the same factors and compared the incremental cost of the source's proposal vs. the p ermitting authority's proposal. The commenters also suggested that the r ule include a mechanism for the source to appeal the permitting a uthority's decision, and that EPA explain in the preamble how these fac tors are to be applied in practice. For example, where a source u ses a highly reliable control method or has historically had emissions we ll below the emissions limit, the commenters argued that a more expensive monitoring method would not be justifiable. Very reliable, but more e xpensive, monitoring would be reasonable where sources have historically operated at the emission limit or have highly variable emissions, a ccording to the

commenters.

The commenters noted that leaving cost-effectivenes s out of unit-specific CAM decisions could lead to imposition of costly mo nitoring on insignificant units. A number of commenters also n oted generally that

sources should be allowed to select the least costl y CAM plan which can reasonably assure compliance and satisfies the rule 's technical criteria. In addition, a commenter stated that agencies which propose any additional or replacement monitoring plans should a lso be required to consider cost effectiveness and choose those plans that can reasonably assure compliance at least cost. Under this approa ch, commenters argued that states would have the burden of demonst rating that their recommended protocol is more appropriate in terms o f performance and additional costs. Another commenter proposed addin g a definition of "cost-effective" to § 64.1 and revising draft §§ 64.6, 64.7, and 64.9 to clarify that cost-effectiveness is a factor to be c onsidered in determining what monitoring is required by CAM.

Steel industry commenters noted that if the rule do es not explicitly provide

for the consideration of cost as a factor in monito ring selection and CAM plan evaluation, states could establish a "top-down " approach to monitoring selection. The commenters opposed such an approach as contrary to both section 504(b) of the CAA, which p rovides that CEMS are not required where alternative monitoring methods a re available and the legislative history of the 1990 CAAA. These commen ters argued that, if

sources can demonstrate that there is no cost-effec tive monitoring

method which satisfies the rule's technical criteri a, the rule should allow sources the option of proposing either monitoring t hat nearly meets theCAM RTC (Part III)

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criteria or the use of no monitoring rather than re quiring them to implement monitoring which is not cost-effective. They stated that such an option is consistent with the statement in the p reamble that sources need not be considered in noncompliance if they can not or do not certify to being in continuous compliance.

Other commenters argued that the rule should distin guish between significant and insignificant sources. The likely e ffects of applying one set of criteria to such a wide range of sources will be uncertainty as to what is required and conflicts during the permitting proces s as individual permit writers apply their own subjective interpretations of these provisions, according to the commenters. A commenter stated as an example, that the rule would basically require the same monitorin g for a vent with

controlled emissions of 1 ton as a vent with contro lled emissions of several hundred tons. Assuming the two vents used t he same basic control device (except for size), the commenter arg ued that the draft CAM criteria would not allow distinguishing what is app ropriate for these two situations. This commenter also pointed to the pre amble discussion which hints that continuous monitoring is likely fo r most types of control devices in order to meet the frequency performance criterion. The commenter argued that, besides being a legal violat ion, this approach is bad policy that at a minimum will lead to different interpretations in different jurisdictions.

Finally, this commenter cited to several provisions in the current draft at which EPA appears to specifically exclude considera tion of cost as an appropriate criterion, including the factors listed in § 64.4(a)(2) and the criteria for allowing "no monitoring" under Subpart C. In the latter example, the commenter stated that the rule would s eem to require monitoring of an insignificant unit if monitoring w as needed to assure compliance even if such monitoring was too expensiv e in light of the emissions at stake. The commenter also argued that the testing requirements fail to allow for a cost consideration in determining whether testing should be conducted (see detailed summary u nder section 8.2 (Part III)).

Response: The Agency agrees that site-specific cons iderations relative to the factors

listed by the commenters can and should affect the design of monitoring. The final rule lists factors of history of process or control device operation, actual emission relative to the compliance limit, a nd the ability of the monitoring to detect changes in pollution control p erformance to beCAM RTC (Part III)

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considered in both the design of monitoring and in the review of the permit application. The final rule still includes the req uirement that the source owner or operator design and propose the monitoring in the permit application and allows a good deal of flexibility t o accomplish this. Further, the rule stipulates that any existing moni toring be evaluated in determining its applicability for complying with th is rule. In this way, the rule makes clear that the lowest cost monitoring ap proach, applying the current monitoring, is considered and evaluated bef ore other approaches.

Because the source owner has control over the desig n of proposed monitoring and the permitting authority must use th e same performance evaluation criteria as used in designing monitoring , the Agency believes that cost consideration are inherently part of the design and evaluation and should not be a required factor in implementing the rule. Although EPA requested comment in 1994 on whether cost shoul d be an explicit factor that could be relied upon to justify not ach ieving the part 64 monitoring criteria, EPA has instead chosen a lower cost approach to achieving the requirements of section 114(a). EPA decided against the approach described in the 1994 notice for several r easons. First, cost considerations were a major factor in modifying EPA ’s approach to enhanced monitoring from the 1993 proposal to the C AM approach. Because CAM generally involves significantly lower costs than the earlier proposal, cost concerns for individual units are al so lowered. Second, the design of monitoring is not equipment-specific or tiered such that a top-down selection scheme is applied. Rather, as e xplained above, source owners can consider cost in designing the mo nitoring system. Third, specifying a cost evaluation criteria would require establishing a baseline cost for comparison purposes which would b e difficult for the broadly applicable part 64 given the range of situa tions encountered. Finally, a related concern is that adding cost as a n explicit design criteria may compromise national consistency under CAM. Man y commenters criticized the proposed monitoring criteria as vagu e even absent the addition of a factor which would allow monitoring n ot to achieve the criteria in certain circumstances. The Agency has modified the criteria in response to such comments and also believes these c omments have been somewhat overstated. Nonetheless, EPA recogni zes that monitoring criteria that are intended to give sourc e owners broad flexibility in designing monitoring must not be overly prescrip tive and thus presents the potential problem of inconsistent application. Adding cost as a grounds for not achieving the monitoring criteria o nly exacerbates this potential problem. Taking all of these factors int o account, EPA decidedCAM RTC (Part III)

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against adding cost as an explicit factor that coul d be relied upon to justify not achieving the part 64 monitoring criteria.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); American

Gas Association (VI-D-154); Chemical Manufacturers Association (VI-D-152); CITGO Petroleum Corporation (VI-D-172); Clean Air Implementation Project (VI-D-153); Coalition for Cl ean Air Implementation (VI-D-164); DuPont Engineering (VI-D-127); Electron ic Industries Association (VI-D-137); General Electric Company (V I-D-156); Mobil Corporation (VI-D-115); Mobil Corporation (VI-D-248 ); National Environmental Development Association (VI-D-169 and 269); Ohio Chamber of Commerce, et al. (VI-D-160); Specialty S teel Industry of North America (VI-D-143); Steel Manufacturers Assoc iation (SMA) (VI-D-144)CAM RTC (Part III)

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Section 7: Subpart B CAM Plans

Section 7.1: General Comments

Comment a: A number of commenters noted general sup port for § 64.7. One state

agency supported the flexibility of § 64.7, which lays out five elements of a CAM plan without excessively detailing the specif ics, allowing unit-by-unit adjustments while mandating the resolu tion of heretofore ambiguous concepts, such as monitoring frequency an d indicator ranges. This is an example of the leeway the CAM proposal g ives authorities to

work with sources to determine the most effective m onitoring that will satisfy CAM, according to the commenter. Another c ommenter supported the draft preamble's statement that the § 64.7(a)(4) obligation to take corrective action to bring operations back within the appropriate ranges should be met as "expeditiously as practicab le." This commenter did not support the option of establishing a "criti cal path requirement" which owners and operators would have to follow whe n taking corrective action. Another commenter noted that this is an imp rovement over the 1995 draft. A federal agency noted that the CAM pl an requirements are neither technologically proscriptive nor onerous to develop or maintain. The commenter noted that sources have the option of proposing a number of different methods to verify that equipmen t is working properly; for example pressure drops and/or opacity informati on could be used to indicate whether a regulated pollutant was exceedin g emission limitations or standards. CAM plans should also generally not require expensive equipment modifications, although they will probabl y require greater maintenance and tracking of records, according to t his commenter. An industry commenter noted that the list of CAM plan elements in 64.7 is sensible and as detailed as necessary. The commente r suggested that the rest of subpart B should be made consistent wit h this simple approach and the extra requirements scattered throughout the rule should be dropped or moved into this section.

Response: The Agency agrees with the comment that r eorganization and

consolidation of requirements is appropriate. The final rule represents such a reorganization of requirements. The rule no longer refers to a "CAM plan" because there is no need to distinguish between monitoring

for units with control devices and those units with out control devices. However, the basic elements of the 1996 part 64 Dra ft have been incorporated into § 64.6(c) of the final rule.CAM RTC (Part III)

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Letter(s): Air Products and Chemicals, Inc. (VI-D-1 86); Department of Defense

(VI-D-209); Exxon Chemical Americas (VI-D-128); Sta te of Washington Dept. of Ecology (VI-D-167); Wellman, Inc. (VI-D-23 7)

Comment b: Some commenters suggested that the rule should not require a source to

develop a separate CAM plan for each unit at the so urce. They argued that it is redundant to require a separate CAM plan for each unit at a source if the CAM plan will be the same for all uni ts at a source. They suggested that sources should be given the flexibil ity to combine all CAM plans into one document that addresses all applicab le units. For example, for a facility which uses water scrubbers, condensers and carbon absorbers to control its VOC emissions, a si ngle CAM plan with

three sections would be sufficient to address all t he control devices at the facility, according to one commenter. Another comm enter stated that the rule should only require one CAM plan per control d evice, even if multiple

units are connected to that control device, while a nother suggested generally that it would be better to allow for the development of a single CAM plan for a facility. In addition, one commente r stated that EPA should consider allowing a company to develop a gen eric CAM plan that, if approved by EPA, could be used for facilities in different States.

Response: The exact wording contained in § 64.7 of the 1996 part 64 Draft is not

included in the final rule. The Agency agrees that a monitoring approach that satisfies part 64 may be applied to any number of similar pollutant-specific emissions units at a particular source and that consolidation of such monitoring description in the permit application is appropriate. Nothing in part 64 prohibits such con solidation as long as the application adequately identifies the PSEU(s) f or which the monitoring applies. Further, development of an industry-wide or company-wide monitoring approach for similar control technologie s is certainly valid and encouraged for consistency purposes. Again, nothin g in part 64 prohibits such generic monitoring development as long as each application properly documents and applies the monitoring.

Letter(s): Colorado Association of Commerce & Indus try (VI-D-182); County

Sanitation Districts of Orange County, California ( VI-D-231); Department of Energy (VI-D-196); NESCAUM (VI-D-192); Pharmaceu tical Research and Manufacturers of America (VI-D-217); South Dako ta Dept. of Environment & Natural Resources (VI-D-223)CAM RTC (Part III)

October 2, 1997 Page 222

Comment c: One commenter stated that the CAM plan r equirements for existing

monitoring should not have to be equivalent to the elements prescribed in § 64.7, and cited as an example stack monitoring u nder part 61, subpart H. The commenter stated that compliance with the e mission standards in subpart H is based on calculation of annual dose fr om the facility, even though the facility conducts monitoring at individu al stacks. The commenter argued that it would be meaningless to ap ply "excursions" and "indicator ranges" to the individual stacks, especi ally given the constant change at research facilities.

Response: The monitoring requirements in subpart H, National Emission Standard for

Radionuclides other than Radon from Department of E nergy Facilities, is defined by the rule as a continuous compliance dete rmination method. As such, the monitoring for these pollutant-specifi c emission units is exempt from part 64. No additional documentation i s necessary.

Letter(s): Los Alamos National Laboratory (VI-D-210 )

Section 7.2: Permit Interface

Comment a: Certain commenters proposed changes to § 64.7 to allow CAM plan

adjustments without the need for permit modificatio n. One commenter stated that CAM plan details and changes should be "off permit." The commenter proposed that, in § 64.7(a)(4), EPA shou ld make the terms and conditions for all the CAM requirements an "obl igation to develop" and require permitting authority approval since thi s approach would allow CAM plans to be adjusted without going through the permit modification process. Another commenter argued that the list of elements under § 64.7(a)(1)-(4) required to be in a CAM plan and bec ome permit terms is too detailed. In particular, according to the comm enter, subsections 64.7(a)(1)(iv) and (v) are too broad to be translat ed into simple permit terms (unless it is possible to cite pre-existing r egulations), but also are the kind of requirements that are most likely to re quire fine-tuning. Thus,

the commenter recommended that EPA delete these sub sections and, to ensure that the performance criteria in CAM plans a re being met and QA/QC being performed, require establishment of a p ermit term or condition that requires implementation of the perfo rmance criteria in an approved CAM plan. The commenter further recommend ed edits to the introductory language in 64.7 so that it is clear t hat only certain minimum elements, not necessarily an entire CAM plan, must be included in theCAM RTC (Part III)

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permit. The commenter stated that EPA must recogni ze that a CAM plan may include additional information that need not be part of the permit, and provided example text to clarify this provision.

Response: The Agency believes that the permit revis ions process under development

will provide sufficient flexibility for changing mo nitoring as necessary to accommodate the changing needs of the industry. Th e Agency also agrees that not every detail of the monitoring must be part of a permit. In the final rule the elements required for the permit have been reduced and described more clearly to avoid unnecessary informa tion for the permit that may be difficult to change in the future. The se are: (1) the approved monitoring approach including the indicator(s) to b e monitored (such as temperature, pressure drop, emissions, or similar p arameter), the means or device to be used to measure the indicator(s) (s uch as temperature measurement device, visual observation, or CEMS), a nd the performance requirements (such as monitoring frequency, averagi ng period, and general QA/QC); (2) the means by which the owner or operator will define an exceedance or excursion for purposes of respondi ng to and reporting exceedances or excursions; for defining an excursio n from an indicator range or designated condition, the permit may eithe r include the specific value at which an excursion shall occur, or the spe cific procedures that will be used to establish that value; (3) the oblig ation to conduct the monitoring and fulfill the other obligations of par t 64 (such as a general duty to operate the monitoring at all times and oth er requirements that the permitting authority deems necessary; and (4) if ap propriate, a minimum data availability requirement for valid data collec tion for each averaging period, and, if appropriate, a minimum data availab ility requirement for the averaging periods in a reporting period. The Agenc y believes that these minimum elements can define the monitoring sufficie ntly for the permit and afford the source owner or operator the opportu nity to maintain and update the details of day-to-day monitoring operati on without permit revision. For instance, the minimum QA/QC procedur es to include in the permit should not be confused with a set of standar d operating procedures (SOP) or a detailed QA/QC plan. The per mit should include the basic required QA/QC procedures (e.g., daily op erational checks and annual calibration of a pressure drop gauge).

Letter(s): Chemical Manufacturers Association (VI-D -152); Utility Air Regulatory

Group (VI-D-140)CAM RTC (Part III)

October 2, 1997 Page 224

Section 7.3: Ability to Add Elements

Comment a: Some commenters stated that the permitti ng authority should not have

unfettered discretion to add other elements into a CAM Plan. They argued that this provision is a standardless and un lawful delegation of authority to local agencies. Some of these comment ers recommended explicitly deleting § 64.7(a)(5).

Response: The Agency disagrees that the permitting authority should not have

discretion in determining what monitoring, in addit ion to part 64 monitoring, would be appropriate for a pollutant-sp ecific emission unit. On the other hand, the Agency agrees that the proce ss for reviewing and approving monitoring that satisfies part 64 is requ ired to focus only on part 64 related requirements. The revised approval proc ess in part 64 reflects this approach, and the final rule does not include a provision that parallels § 64.7(a)(5) of the 1996 part 64 draft.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Coalition for

Clean Air Implementation (VI-D-164); Eastman Chemic al Company (VI-D-173); KBN Engineering & Applied Sciences, Inc . (VI-D-229); Phillips Petroleum Company (VI-D-131)

Section 7.4: Corrective Action Provisions

Comment a: An environmental organization argued tha t the corrective action provisions

are inadequate. The group stated that the correcti ve action obligation applies only to subpart B sources that have a duty to monitor control device parameters, and the rule does not specify wh at must be done in a corrective action or how soon the problems that nec essitated it must be corrected. Industry commenters, however, suggested that corrective action should not be required for all excursions/ex ceedances. They argued that one reason corrective action should not be required for all

excursions/exceedances is because the event could b e corrected prior to the operator taking any action. For instance, the commenter stated that computerized distributed control systems can correc t process deviations without action on part of the operator. Some comme nters argued that it is a waste of resources for operators to take corre ctive action when the event has already been corrected. One commenter su ggested that the rule should only require corrective action if the p roblem persists for a significant period. Another commenter noted that e xcursions may be theCAM RTC (Part III)

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result of an anomaly in production and may not requ ire corrective action, and stated that corrective action should only be re quired if the source determines that an exceedance of an applicable requ irement has occurred. Another commenter argued that the requir ement to take corrective action should only apply where an excurs ion or exceedance has been validated because of the possibility of fa lse indications of excursions or exceedances. Similarly, one commente r suggested that the rule should allow for qualitative checks to det ermine if monitored "excursions" are in fact control performance change s that should be corrected. The commenter stated that this type of double-checking could avoid misguided attempts to adjust control equipmen t that is in fact operating properly. The commenter argued that if t he qualitative check

indicates that the excursion was a "false alarm" th e excursion should not count as an actual excursion, and if the monitoring produces too many false alarms, then the CAM plan should be revised. In addition, the commenter requested that a CAM plan explicitly deta il the procedures to be used as qualitative checks. Another commenter a greed and

recommended that the word "validated" be added so t hat it is clear that corrective action is not required where the data in accurately indicates an

excursion.

Response: The Agency believes it is critical to und erscore the need to maintain

operation within the established indicator ranges. Therefore, the rule includes the requirement to take prompt and effecti ve corrective action when the monitored indicators of compliance show th at there may be a problem. Requiring that owners and operators are a ttentive and respond to the data gathered by part 64 monitoring has alwa ys been central to the CAM approach. The Agency reiterates its belief tha t part 64 monitoring can provide a reasonable assurance of compliance wi th applicable requirements. This is consistent with the approach suggested by many commenters throughout the development of part 64; h owever, because the data will not necessarily allow a direct determ ination of compliance, the Agency believes that it is essential to the CAM goal of ongoing compliance operation that part 64 require that owne rs or operators respond to the data so that any problems indicated by the monitoring are corrected as soon as possible. Without this correc tive action obligation, source owners or operators might tend to ignore exc ursions because such excursions may not necessarily allow a determinatio n of a violation. Thus, EPA believes that the corrective action compo nent of part 64 is critical to assuring that the information form the enhanced monitoring required by part 64 is heeded by source owners and operators. On theCAM RTC (Part III)

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other hand, the Agency agrees that not every indica ted excursion is necessarily a result of a control device problem. The final rule specifies in § 64.7(d) that "corrective action" can include d ocumenting that the parameters monitored returned to the normal ranges without operator action. In addition, the responsible official has the opportunity to describe and explain the circumstances behind any indicated excursions in the semi-annual report or the annual compliance certifi cation and document

that such instances reflect conditions unrelated to compliance operation.

The EPA disagrees with the comment that the rule do es not specify what must be accomplished in a corrective action. The r ule specifies that “[u]pon detecting an excursion or exceedance, the o wner or operator shall restore operation of the pollutant-specific emissio n unit (including the control device and associated capture system) to it s normal or usual manner of operation as expeditiously as practicable in accordance with good air pollution control practices for minimizing emissions.” (40 CFR §64.7(d)) Given the wide range of units and contro l devices that the rule applies to it would be difficult to include more sp ecific requirements in the

rule.

As described in the discussion accompanying the 199 6 part 64 Draft, the Agency did consider requiring owners or operators t o specify maximum periods for conducting various types of corrective action, but stakeholders raised concerns that it would be extremely difficul t to establish the appropriate time frames for every possible continge ncy. The Agency continues to agree that it would be difficult to es tablish appropriate time

frames for all corrective action scenarios and ther efore has adopted the general obligation requirement in the final rule. The Agency also believes, however, that as situations develop at a particular facility it may be possible in subsequent rounds of permitting to p rovide specific timetables for certain high priority concerns if a permitting authority desires to make this requirement more specific. In addition, if an existing site-specific plan, such as a malfunction abatement plan, already establishes required time frames for certain types of excursions, the owner or operator or the permitting authority could incorporate those specific time frames into the permit.

The obligation to correct excursions as expeditious ly as practicable is the enforceable component associated with establishing an indicator range under part 64. Part 64 does not establish that an excursion from an indicator range constitutes an independent violatio n by itself. The 1996CAM RTC (Part III)

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part 64 Draft did provide that the permit may speci fy that an excursion could be considered a failure to satisfy an applica ble permit term or

condition in various situations. First, if existin g requirements already require the owner or operator to comply with the in dicator ranges, the 1996 Draft indicated that the ranges would be enfor ceable requirements. Second, the 1996 Draft indicated that an owner or o perator could propose this approach. Finally, the 1996 Draft stated that , if consistent with existing authority, the permitting authority could specify in the permit that excursions from the indicator ranges will be consid ered enforceable permit deviations. The Agency believes that the co rrective obligation in conjunction with enforcement agency oversight is an effective and enforceable element in a compliance assurance progr am.

Letter(s): Air Control Techniques, P.C. (VI-D-202); American Automobile

Manufacturers Association (VI-D-157); Association o f Battery Recyclers (VI-D-155); General Electric Company (VI-D-156); Na tural Resources Defense Council (VI-D-151); Phillips Petroleum Comp any (VI-D-131); Texas Chemical Council (VI-D-236); UCAR Carbon Comp any, Inc. (VI-D-122)

Section 7.5: Miscellaneous Comments

Comment a: One commenter proposed changes to § 64. 7 which would require that

CAM plans include information on the relationship b etween parameters to be monitored and compliance with emission limits or standards. (See related comments in Section 6.1-subpart B General C riteria.) The commenter proposed revisions to § 64.7(a)(1) to ad d a requirement that the CAM plan contain a "credible demonstration of t he validity of the indicator to be monitored" including the demonstrat ed relationship

between the indicator and actual emissions, the dem onstrated margin of compliance, and the potential variability of emissi ons.

Response: The Agency believes that there is a reaso nable assurance of compliance

with emission limits so long as the emissions unit is operated under the conditions anticipated and the control equipment th at has been proven capable of complying continues to be operated and m aintained properly. This is the basis for the monitoring approach descr ibed in part 64. In most cases, this relationship can be shown to exist through the performance testing without additional site-specifi c correlation of operational indicators with actual emission values. The Agency agreesCAM RTC (Part III)

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with the commenter that the evaluation criteria men tioned by the commenter are important in developing and approving monitoring in a manner that both allows flexibility in design and p rovides a reasonable assurance of compliance. The rule specifically all ows for the use and augmenting of existing monitoring in lieu of develo ping and installing completely new monitoring approaches and § 64.3(c) references the evaluation factors to apply in developing and revie wing monitoring to meet part 64 requirements. The Agency believes that in this manner, the owner or operator and the permitting authority can agree on cost-effective monitoring that result in the reasonable assurance of compliance required by part 64.

Letter(s): NESCAUM (VI-D-192)

Comment b: Another commenter recommended that the r ule should provide for

situations where it will not be possible to determi ne indicator ranges until equipment is operational. The commenter suggested that the rule permit a source to include a time period within which indi cator ranges will be determined after the CAM plan is approved.

Response: The Agency agrees and has included in the rule that if the monitoring

submitted by the owner or operator requires install ation, testing, or other necessary activities prior to use of the monitoring , the owner or operator shall include an implementation plan and schedule f or installing, testing and performing any other appropriate activities pri or to use of the monitoring. The implementation plan and schedule s hall provide for use of the monitoring as expeditiously as practicable a fter approval of the monitoring in the part 70 or 71 permit, but in no c ase shall the schedule for completing installation and beginning operation of the monitoring exceed 180 days after approval of the permit.

Letter(s): Exxon Chemical Americas (VI-D-128)

Comment c: One commenter recommended moving § 64.7( a)(4) to apply to subparts A

and B because this paragraph is actually a permit r equirement and not a CAM plan element.CAM RTC (Part III)

October 2, 1997 Page 229

Response: The final rule has been reorganized signi ficantly to improve the flow of the

rule and avoid these types of possible conflicts. The reorganization effectively addresses this comment.

Letter(s): Exxon Chemical Americas (VI-D-128)CAM RTC (Part III)

October 2, 1997 Page 230

Section 8: Documentation Requirements

Section 8.1: Rationale for Monitoring

Comment a: An environmental organization objected t hat the rule fails to require

owners to provide meaningful support for their moni toring proposals because section 64.8 merely lists possible elements that owners may include without setting any standard for documentat ion that owners must include. Additionally, this organization asserted that, because the documentation section provided that testing is not required over the entire indicator range, the indicator ranges will in effec t sanction operation when it is unknown as to whether compliance is being ach ieved. Industry commenters, on the other hand, objected that the re quirement to submit a rationale should be deleted because it is overly pr escriptive, burdensome and will generally be superfluous. One commenter a rgued that this should be worked out by the permitting authority an d the source. Similarly, others noted that the CAM plan documenta tion requirements are overly burdensome, especially given the large numbe r of units subject to subpart B. One commenter suggested that the rule s hould only require

documentation of the rationale behind the monitorin g approach where proposed monitoring differs from generally accepted approaches, that such documentation should be minimal, and that no j ustification should be necessary where indicator ranges are set below appl icable emission limitations or standards. Others suggested that wr itten justification for the monitoring should be required only at the request o f the permitting authority because this requirement will be a waste of resources in many situations where the proposed monitoring does not n eed justification. If questions arise during the permit process, addition al supporting documentation can be provided.

Response: The Agency disagrees with the suggestion that documentation of

monitoring is unnecessary. This information will b e necessary for the permitting authority, the public, and EPA to judge the appropriateness of the proposed monitoring for satisfying the design c riteria in the rule. In addition, this requirement builds on similar regula tory precedents in the NSPS and NESHAP programs. Under those programs, EP A has routinely required the owner or operator to submit a proposed monitoring approach and supporting rationale where the owner o r operator intends to use a control device for which the underlying stand ard does not contain specific monitoring procedures.CAM RTC (Part III)

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As discussed in greater detail in Section II.C.1 of the preamble to the final rule, the Agency also disagrees that the documentat ion requirements are insufficient to assure that monitoring have meaning ful support in terms of demonstrating a reasonable assurance of compliance. The final rule requires that an owner or operator propose indicato r ranges supported by data obtained during the conduct of the applicable compliance or performance testing at the pollutant-specific emiss ions unit and supplemented, as necessary, by engineering assessme nts and

manufacturer's recommendations. To assure that con ditions that occur during performance testing are also generally repre sentative of anticipated operating conditions, a performance tes t is to be conducted under conditions specified by the applicable rule o r, if not specified, generally under conditions representative of maximu m emission potential under anticipated operating conditions. In additio n, the rule allows for adjusting the baseline values recorded during a per formance test to account for the inappropriateness of requiring that indicator conditions stay exactly the same as during a test. The rule d oes not require performance testing over the entire indicator range ; however, that does not mean that the entire indicator range does not n eed to be adequately justified as providing a reasonable assurance of co mpliance. The range of indicator levels can be justified not only by pe rformance data but by engineering and historical data as well as manufact urer’s specifications.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Association

of Battery Recyclers (VI-D-155); Eli Lilly Company (VI-D-124); General Electric Company (VI-D-156); Phillips Petroleum Com pany (VI-D-131)

Comment b: Some industry commenters noted support f or the provision allowing

sources to base CAM plans on monitoring approaches that a permitting authority has established as presumptively acceptab le. A coalition group stated that this provision fosters development of s tate programmatic approaches which could be a very useful tool for st ates with a large number of CAM plans to administer. It also fulfill s the provision of section 114 that states be authorized to develop procedures for carrying out its requirements. Others noted that this provision woul d reduce plan development and case-by-case review costs in states where programmatic approaches are not developed. One com menter stated,

however, that the rule must allow time for states t o adopt/revise rules. Finally, another commenter stated specific support for the ability to useCAM RTC (Part III)

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MACT monitoring as presumptively acceptable for CAM where it applies

to control of non-HAPs.

Response: The Agency agrees that the monitoring pre scribed by state or local rules

be considered acceptable, if that monitoring meets part 64 requirements. The final rule includes a provision that allows the owner or operator to rely presumptively upon this type of programmatic rule r equirement as the primary documentation of the appropriateness of its monitoring. This approach would reduce the number of case-by-case re views necessary to implement part 64. On the other hand, EPA does not agree with commenters who suggest that states that choose to u se programmatic rulemaking should be allowed to apply different cri teria in determining monitoring and to have additional time to implement such an approach. The EPA believes monitoring decisions should be mad e on the same basis whether done on a programmatic or case-by-cas e basis. Second, EPA questions both the need for a substantial delay for programmatic rulemaking and whether the purported advantages of a programmatic approach justify any substantial delay. The final part 64 does not include an option for permitting authorities to delay imple mentation of part 64 through use of a programmatic approach. Lastly, de termination of whether monitoring specified for a MACT rule or any other rule is applicable for monitoring the control of other poll utants to satisfy part 64 must be made on a case-by-case basis. In many case s, the Agency would expect such monitoring as specified in a MACT rule of a control device that is designed to remove both a MACT pollu tant and other non-HAPs may very well satisfy part 64 requirements

.

Letter(s): Association of Battery Recyclers (VI-D-1 55); Clean Air Implementation

Project (VI-D-153); DuPont Engineering (VI-D-127); Phillips Petroleum Company (VI-D-131); Texas Chemical Council (VI-D-23 6)

Section 8.2: Indicator Range Verification

8.2.1: Presumption that Testing is Required

Comment a: One industry commenter supported the con cept that parameter limits do

not always have to be based on performance tests. The commenter agreed with the statement in the discussion documen t that performance tests are not always essential in order to establis h parameter limits. According to the commenter, existing regulations sp ecify various methodsCAM RTC (Part III)

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of demonstrating compliance including design evalua tions and other approaches and the rule should allow similar flexib ility. Another industry group stated generally that the provisions in § 64. 8(c) are important so that testing is not required, especially given the broad applicability criteria.

Most industry commenters on this section, however, objected to the presumption that indicator ranges are to be establi shed based on compliance testing. Commenters objected to requiri ng indicator ranges to be developed in conjunction with applicable test methods and to be set

at levels that will ensure emissions are below nume rical limits at all times. Some commenters argued that this increases the str ingency of underlying standards which were developed with limi ted data and with an expectation that properly operated sources would be likely to exceed the limits 5-10 percent of the time. The commenters be lieved that this approach basically requires a statistical correlati on of parameter values with emission values, makes CAM diverge from its fo cus on good O&M, and turns indicator monitoring into de facto contin uous compliance monitoring as in the EM proposal. EPA should act t o completely sever

the connection in CAM between actual emissions and indicator parameters, according to some commenters. Two comm enters suggested that the rule require only that available compliance data be considered or evaluated when developing the plan. Another commenter suggested that the permitting authority could also be required to make a determination of whether compliance testing is cost -effective or if an engineering assessment in combination with the moni toring is sufficient to assure compliance. Finally, one commenter claimed generally that use of snapshot testing to set indicator ranges will re sult in increased stringency, especially where there is a large margi n of compliance during

the test.

An industry coalition group also argued that the co st of compliance testing could easily reach a billion dollars just to do the single performance test indicated in the draft rule (assuming 100,000 emiss ion points). In

addition, this commenter stated that sources will w ant to conduct more tests just to avoid the increased stringency impact s and enforcement actions based on overly restrictive indicator range s. The commenter stated that the rule provides no limits on the cost s of testing and

verification.

Another commenter argued that compliance testing is not necessary since most sources have already been determined to be cap able of achievingCAM RTC (Part III)

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applicable requirements as a result of rule or perm it compliance demonstration requirements. The commenter added th at it is particularly unreasonable to require testing at smaller sources. Similarly, commenters stated that engineering assessments and manufacturer recommendations are generally adequate to establish indicators that demonstrate that a control device is operating as d esigned. They also argued that using data collected during a test does not add value to this process and CAM should not be used as a vehicle for implementing compliance testing on sources. Commenters also not ed that not all CAM "control devices" have required performance tests, and some which do have tests do not have approved methods. Other sou rces of information can be just as useful or superior for setting indic ator ranges, according to these commenters. For example, the commenters stat ed that testing is generally unnecessary to determine the appropriate temperature for operating a condenser to achieve a given level of c ontrol. The commenters recommended that the provision be rewrit ten to promote the use of engineering assessments and other informatio n. Finally, a commenter argued that there are many situations whe re unit specific compliance testing is not currently required. It i s not necessary or appropriate for CAM to override reasoned decisions made in underlying rules, according to this commenter; for example, co ntrols used for fugitive emissions do not require performance tests because their high cost is not justified for the small amount of emissions handled . The commenter noted that CAM's pre-control applicability threshol d will subject all fugitive sources to subpart B, and added that CAM plans will also be required for work practice and other requirements where the term "performance test" does not apply.

One industry trade group recommended that EPA repla ce this section with a much simpler provision stating that the appropria te parameter monitoring range(s) may be determined by representa tive test data from any applicable source, plus supporting information, such as engineering

assessments, manufacturer's data and recommendation s, subject to the permitting authority's approval.

Commenters also suggested that where compliance tes t data is used to establish indicator ranges, the rule should make cl ear that this does not imply a specific correlation between the test data and the range selected. The commenters stated that a single test is not nec essarily representative of the entire range of operating conditions at a so urce, and that indicator ranges should be determined based on historical ope rating data,CAM RTC (Part III)

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engineering data, etc. One commenter claimed that it was not possible to establish a correlation or quantitative relation ship between emissions and an indicator value based on a single performanc e test. The commenter argued that when multiple parameters were involved the ability of setting meaningful indicator values base d on a single performance test became even less likely. Addition ally, this commenter claimed that because performance tests themselves a llegedly could be highly variable parameter values established based on a single performance test are invalid. Finally, this commen ter asserted that EPA had not provided sufficient guidance on how to take information other than performance data into account in setting indicator ranges.

One commenter claimed that it was not possible to e stablish a correlation or quantitative relationship between emissions and an indicator value based on a single performance test. The commenter argued that when multiple parameters were involved the ability of se tting meaningful indicator values based on a single performance test became even less likely. Additionally, this commenter claimed that because performance tests themselves allegedly could be highly variable parameter values established based on a single performance test are invalid. Finally, this commenter asserted that EPA had not provided suffic ient guidance on how to take information other than performance data into account in setting indicator ranges.

Certain pharmaceutical industry commenters also obj ected to the requirement that an owner or operator must obtain a pproval to use engineering assessments and other data for the esta blishment of indicator ranges. The commenters stated that the pharmaceuti cal industry is an industry that primarily uses batch manufacturing op erations which are inherently nonsteady-state with flow rates and comp ositions rapidly changing. The commenters argued that because most existing test methods are adaptations of methods developed for st eady-state sources, requiring performance testing for batch industries will place an unfair

burden on those industries because reliable batch t esting technology has not yet been developed. The commenters added that for many years, the pharmaceutical industry has calculated controll ed emissions using the Control Technology Guidelines developed by EPA, whi ch are recognized as approved factors by state and federal permitting authorities. Requiring prior approval for techniques already approved by E PA and the state agencies is unnecessary and time-consuming, accordi ng to theseCAM RTC (Part III)

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commenters, and they recommended revisions to § 64. 8(c) to eliminate the requirement to obtain such approval.

Response: The Agency believes that performance test ing plays an important role in

two ways in establishing indicator ranges that will provide a reasonable assurance of ongoing compliance for pollutant-speci fic emissions units with pollution control devices. First, the perform ance or compliance test is generally necessary to demonstrate that the emis sion unit is capable of compliance with the emission limitation or standard . Many applicable regulations require such a test at least at unit st art-up; if not, the permitting authority often prescribes an appropriat e test or other means to make this demonstration. Second, the Agency believ es the use of operational data collected during performance testi ng is a key element in establishing indicator ranges. The Agency has long recognized the importance of establishing representative site-spec ific baseline conditions during performance testing. For instance, nearly a ll NSPS subparts that rely on parameter monitoring require indicator rang es to be set based on baseline conditions during performance testing. In addition, relevant portions of EPA's Air Compliance Inspection Manual (docket item A-91-52-VI-A-3) notes the importance of this approa ch so that parameter data can be relied on in the inspection process to reach a conclusion about a source's compliance status. Thus, the pres umptive approach for establishing indicator ranges in part 64 is to esta blish the ranges in the context of performance testing.

The Agency recognizes that information collected du ring performance do not necessarily provide all the information needed to develop indicator ranges that are representative of compliance perfor mance across the entire operating range. For this reason, the rule allows for adjusting the baseline values recorded during a performance test to account for the inappropriateness of requiring that indicator condi tions stay exactly the same as during a test. Other relevant information that may be used in establishing indicator ranges would be engineering assessments, historical data, and vendor data. The rule also pr ovides that the owner may submit indicator ranges (or procedures for esta blishing indicator ranges) that rely alone on engineering assessments and other data, provided that the owner or operator demonstrates th at factors specific to the type of monitoring, control device, or pollutan t-specific emissions unit make compliance or performance testing unnecessary.CAM RTC (Part III)

October 2, 1997 Page 237

The Agency believes that the comment suggesting tha t meaningful

indicator values could not be established based on a performance test incorrectly assumed that EPA was requiring that ind icator values be statistically correlated to emission levels as in t he 1993 enhanced monitoring proposal. As noted above, EPA believes that performance data used in connection with engineering, vendor, a nd historical

information can be used to set indicator values tha t provide a reasonable assurance of compliance. Thus, EPA is not requirin g a statistical

correlation between indicator values and emission l evels such as in the 1993 proposal. As to the concern regarding the var iability of performance tests, EPA believes that performance va riability is a potential problem with individual standards and performance t ests but is not a bar to parameter monitoring. If the performance test i s highly variable, mistaken judgments regarding compliance will occur whether relying on the performance test itself or parameter values bas ed on the performance test. Finally, EPA has not set forth a host of det ailed regulatory requirements regarding the use of non-performance d ata in setting

indicator levels so as to allow source owners and o perators and permitting authorities the flexibility to adapt mon itoring and indicator levels to the specific circumstances at the unit in questi on. This rule applies to too many different types of units and different typ es of control devices to allow for such a prescriptive approach. EPA intend s to issue guidance on parameter monitoring to aid source owners and op erators in the design of CAM plans.

Lastly, the issue of revising the stringency throug h establishing indicator ranges based on performance testing is not relevant given that the Agency has made clear that an excursion from an ind icator range or designated condition indicates a potential problem in the operation and maintenance of the control device and a possible ex ception to compliance with applicable requirements. The excursion signal s, at a minimum, that the owner or operator should take appropriate corre ctive action to return operations within the established ranges. However, an excursion from an indicator range does not necessarily constitute a f ailure to comply with the underlying emissions limitation or standard. See s ection 14 of this

document for additional discussion. The assertion that requiring monitoring to ensure that emission standards are me t at all times makes the standards more stringent because many standards do not require continuous compliance is incorrect. Part 64 is a m onitoring rule; it does not -- in fact, could not -- change the compliance obligations of individual emission standards. EPA would note its disagreemen t with the theoryCAM RTC (Part III)

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that continuous compliance is not the norm for emis sion standards. This issue was discussed in great detail in the preamble to the Credible Evidence Rulemaking and the Response to Comments do cument

associated with that rule.

EPA disagrees with the comment that it should sever the link between CAM and actual emissions. CAM is designed to provi de source owners and operators with information for compliance certi fications. If CAM had no linkage to actual emissions it would have no val ue for compliance

certifications.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Association

of Battery Recyclers (VI-D-155); Chemical Manufactu rers Association (VI-D-152); Clean Air Implementation Project (VI-D- 153); Coalition for Clean Air Implementation (VI-D-164); Dow Chemical C ompany (VI-D-120); DuPont Engineering (VI-D-127); Eastman Chemical Company (VI-D-173); Eli Lilly (VI-D-124); Exxon Chemical Am ericas (VI-D-128); General Electric Company (VI-D-156); Kennecott Corp oration (VI-D-119); National Environmental Development Association (VI- D-169); Ohio Chamber of Commerce, et al (VI-D-160); Pennsylvania Chamber of Business and Industry (VI-D-114); Pharmaceutical Re search and Manufacturers of America (VI-D-217); Phillips Petro leum Company (VI-D-131); Texas Chemical Council (VI-D-236); Util ity Air Regulatory Group (VI-D-140); Virginia Power (VI-D-226); Wiscon sin Electric Power Company (VI-D-130)

8.2.2: Testing over Entire Operating Range

Comment a: Industry commenters did support the prov ision stating that test data need

not reflect the entire indicator range. One trade association urged EPA to retain the provision in the final version of this s ection. Another commenter noted that testing at nonrepresentative c onditions can provide misleading results, and thus this same provision sh ould be added to § 64.8(c) where existing test data are not available. An environmental organization, on the other hand, argued that the ru le improperly sanctions the operation of sources under conditions for which the owners do not know the emission levels. Noting that the rule sta tes that parameter ranges should be based on compliance tests but prov ides that testing is not required to be conducted over the entire indica tor range, the commenter stated that the rule improperly allows so urces to conduct theCAM RTC (Part III)

October 2, 1997 Page 239

compliance testing at an unspecified date in the fu ture or to rely on other

data.

Response: The Agency agrees that the conditions und er which the performance

testing is conducted are critical to assuring that the testing or the resulting indicator ranges are representative of compliance p erformance. To assure that conditions represented by performance t esting are generally representative of anticipated operating conditions, the final rule prescribes that a performance test should be conducted under c onditions specified by the applicable rule or, if not specified, genera lly under conditions representative of maximum emission potential under anticipated operating conditions. The Agency believes that use of data f rom performance tests under such conditions in conjunction with other eng ineering data provide a basis for establishing indicator ranges and that fu ll-scale performance testing across the indicator range is unnecessary. The Agency notes that it has used this same approach in many recent MACT rules under 40 CFR part 63 as well (see, e.g., 40 CFR 63.654(f)(3)(ii) (A) and 63.1334(c)).

Letter(s): Chemical Manufacturers Association (VI-D -152); Eastman Chemical

Company (VI-D-173); Natural Resources Defense Counc il (VI-D-151)

8.2.3: Use of Existing Test Data

Comment a: Several industry commenters recommended that EPA delete the

provisions of § 64.8(b)(2) relating to age of test data and other restrictions. The commenters argued that there is no technical j ustification for arbitrarily excluding from consideration data over five years old. They stated that test data obtained using approved metho ds should remain

valid no matter when the test was conducted, so lon g as significant operational changes have not been made to the contr ol device or associated system since the test was conducted. On e commenter noted that this requirement could be misinterpreted by a permitting authority to require a performance test every five years to reva lidate the results. Another commenter added that taking the time to do an unnecessary performance test and review the results only delays the start of monitoring.

A state agency also agreed that the use of old test data should be evaluated on a case-by-case basis. The commenter s tated that age of a

source emissions test should not be the sole criter ia for using the dataCAM RTC (Part III)

October 2, 1997 Page 240

from that test; other factors, such as the operatio nal parameters and use of control equipment during the test, should be con sidered.

Response: The Agency agrees that the relevance of e xisting performance testing

results, regardless of age, should be made on a cas e-by-case basis and has removed that provision from the final rule.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Chemical

Manufacturers Association (VI-D-152); Exxon Chemica l Americas (VI-D-128); General Electric Company (VI-D-156); Na tional Environmental Development Association (VI-D-169); PPG Industries, Inc. (VI-D-136); RR Donnelley & Sons Company (VI-D-221); State of Tenne ssee Department of Environment and Conservation (VI-D-234); Texas C hemical Council (VI-D-236); UCAR Carbon Company, Inc. (VI-D-122)

Comment b: One commenter stated that the requiremen t of additional testing of a

control device any time it has been modified is not justifiable across the board. The commenter suggested that retesting shou ld only be required where the modification can be expected to have affe cted the validity of the

test data.

Response: The Agency agrees that the need for perfo rmance testing for process or

control device modifications must be made in the co ntext of the applicable requirement on a case-by-case basis. The final rul e does not allow a source to rely on existing test data if modificatio ns have been made since the testing was conducted that could result in a si gnificant change in control system performance or the appropriate indic ator range. This limitation on the use of existing data allows for t he particular circumstances of the change to be taken into accoun t.

Letter(s): Chemical Manufacturers Association (VI-D -152)

Comment c: A commenter noted that the section does not specifically provide for the

use of test data on one unit to represent the perfo rmance of a similar process unit. The commenter suggested that permitt ing authorities should have discretion to accept data from one unit with supplemental information to take into account design and operati ng variations. According to the commenter such an approach is cons istent with Section II.A.2 of White Paper 2, which recommends the use o f General Permits toCAM RTC (Part III)

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transfer streamlined requirements from one source t o other similar

sources. Another commenter stated that the cost bu rdens of the rule would be reduced by allowing any accurate, represen tative data to be used, and that the use of data from one unit to sup port monitoring

decisions at similar units would result in consider able savings to industry

with no deterioration to the environment.

Response: As noted above, the rule provides that th e owner may submit indicator

ranges (or procedures for establishing indicator ra nges) that rely alone on engineering assessments and other data, including p erformance testing data from similar emission units, provided that the owner or operator demonstrates that factors specific to the type of m onitoring, control device, or pollutant-specific emissions unit make c ompliance or performance testing unnecessary.

Letter(s): Chemical Manufacturers Association (VI-D -152); Union Carbide

Corporation (VI-D-170)

8.2.4: Miscellaneous Comments

Comment a: A state agency association recommended t hat the rule should provide for

the use of more than one compliance test method pro cedure. The commenter suggested modifying section 64.8(b)(1) to clarify that indicator ranges may be based on data obtained from the condu ct of more than one compliance test method procedure where appropri ate or necessary.

Response: The final rule specifies that performance testing should be conducted

under conditions specified by the applicable rule i ncluding the method used. An alternative to the method specified in th e applicable rule may be approved following the applicable administrative procedures, but that is outside the scope of part 64.

Letter(s): NESCAUM (VI-D-192)

Comment b: A state agency association requested cla rification of whether verification

testing is required only for initial baseline calcu lations or more frequently, such as once every permit renewal. The commenter s upported an explicit statement in the rule that verification te sting frequency is left to the discretion of the permitting authority. Other comm enters requestedCAM RTC (Part III)

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similar clarification. They noted that the require ment that test data be no more than five years old could be interpreted to re quire testing every five years. They recommended that this provision be mod ified so that it applies only to the initial CAM plan submittal, not renewal of previously approved CAM. Another commenter stated generally t hat the rule provides no clear guidance on when and how much tes ting must occur, and that this is a particular concern for small sou rces.

Response: As noted above, the age of information co llected during performance

testing or the frequency of repeating performance t esting should be made on a case-by-case basis. The final rule does not s pecify testing frequency.

Letter(s): American Municipal Power-Ohio (VI-D-159) ; Eastman Chemical Company

(VI-D-173); NESCAUM (VI-D-192)

Comment c: One commenter requested that EPA make it explicit that a source can

extrapolate baseline emission test data or other da ta up to a level that is a reasonable approximation of the emission limit. Th e commenter noted that because it would be inappropriate to create ar tificial test conditions at or near the emission limit for purposes of establis hing an indicator range,

sources with low emission test results must be able to extrapolate upward. The commenter recommended that the extrapolation s hould take into

account the confidence interval of the data over th e range of interest.

Response: The Agency agrees that creating artificia l conditions that produce

emissions at or near the applicable emission limita tion or standard (that may be more representative of control device malfun ctions than proper operation) is not consistent with the requirement o f part 64 that the indicator ranges reflect the proper operation and m aintenance of the control device (and associated capture system), in accordance with applicable design properties, for minimizing emissi ons over the anticipated range of operating conditions at least to the level required to achieve compliance with the applicable requirements . The final part 64 requires that performance testing be conducted unde r conditions specified by the applicable rule. If the applicable rule doe s not specify testing conditions or only partially specifies test conditi ons, the performance test generally shall be conducted under conditions repre sentative of maximum emissions potential under anticipated operating con ditions at the pollutant-specific emissions unit. As noted above, the final rule allows forCAM RTC (Part III)

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adjusting the baseline values recorded during a per formance test to account for the inappropriateness of requiring that indicator conditions stay exactly the same as during a test. There is n o need for, nor is it desirable that, the process or control device be op erated outside of the anticipated operating range during the performance testing.

Letter(s): Air Control Techniques, P.C. (VI-D-202)CAM RTC (Part III)

October 2, 1997 Page 244

Section 9: Subpart C Requirements

Section 9.1: General Comments

Comment a: A few commenters expressed support for E PA's approach in draft subpart

C, which they believed provides permitting authorit ies the flexibility to determine what level of monitoring, if any, to requ ire. One noted that this level of decision making is best made on a case-by- case basis with permitting authorities that are familiar with the p rocesses and equipment. Another supported the listed examples of various t ypes of monitoring and the idea that no monitoring may be appropriate.

Response: No response necessary.

Letter(s): Air Products and Chemicals, Inc. (VI-D-1 86); California Association of

Sanitation Agencies (VI-D-206); County Sanitation D istricts of Orange County, California (VI-D-231); Tri-TAC (VI-D-225)

Comment b: Other commenters stated that EPA should clarify the standards for

subpart C monitoring. Some argued that the standard s for subpart B and C monitoring are similar and vague. They argued th at the draft rule repeats the general standard of "reasonable assuran ce of compliance" for both subparts and, in section 64.9(a)(3), essential ly refers back to subpart B, potentially subjecting subpart C units to all th e requirements of subpart B. This eliminates any advantages of differentiati ng between these two categories, according to the commenters, and they s tressed that subpart B requirements should not be imposed on subpart C p ollutant-specific emission units. Some commenters proposed revisions to section 64.9(a) to clarify that not all of the listed monitoring el ements should be included in an operating permit's subpart C monitoring descr iption, arguing that those listed in section 64.7(a)(1)(i)-(v) should on ly be required "where appropriate" or "as applicable". Others proposed e liminating section 64.9(a)(3) because it is not clear how subpart B re quirements, such as the requirement to set indicator ranges, would apply to units without control

devices.

One commenter agreed that subpart C monitoring shou ld be governed by the same reasonable assurance of compliance standar d as subpart B andCAM RTC (Part III)

October 2, 1997 Page 245

that reference to subpart B concepts is a reasonabl e way to articulate what subpart C monitoring needs to consider. Howev er, this commenter argued that given that the applicability of subpart C is even more broad than the EM proposal, the CAM rule will impose crus hing burdens and will not be implementable unless subpart C monitoring is significantly less demanding than subpart B monitoring.

This commenter and others argued that the draft par t 64 includes no standards that limit subpart C requirements, and th at EPA has not articulated any standard for imposing the more oner ous requirements. One commenter argued that the rule should provide a mechanism for resolving disputes between a source and the permitt ing authority as to what monitoring is appropriate. Another suggested that the rule appears to encourage permitting authorities to subject subp art C sources to subpart B requirements. A few commenters argued th at subpart C as drafted is an unlawful delegation of authority to t he states to create federally enforceable monitoring requirements, espe cially since states could impose requirements even more stringent than subpart B monitoring under subpart C. They stated that while states can always impose more stringent state requirements, those are state-only, not federal, requirements.

A State agency stated that the draft rule provides no guidance on what is meant by the phrase "reasonable assurance of compli ance" in the context of subpart C monitoring and section 64.9(a). This commenter suggested adding a definition in either section 64.9(a)(2) or section 64.1 which states that assurance of compliance is reasonable if it is sufficient to detect, at least a majority of the time, failures or improper unit operations which could reasonably cause a violation.

Another commenter argued that many of the provision s of CAM are ill-defined and subject to multiple interpretations and that one possible interpretation of section 64.9(c)(3) would subject many units to EPA's proposed EM requirements.

Response: Because of the delays in finalizing part 64 and the delayed

implementation schedule included in the final rule, the Agency believes that many part 70 permits will address periodic mon itoring issues prior to implementation of part 64. To address concerns abo ut the potential duplication and disruption that this situation coul d cause, EPA has rejected the inclusion of subpart C in part 64 and, instead will rely on theCAM RTC (Part III)

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existing part 70 monitoring, including periodic mon itoring, requirements to apply to units not covered by part 64. Because the majority of emissions

units do not use control devices, this decision wil l result in part 64 creating no duplication or disruption for the majority of em issions units. The Agency has issued several guidance documents to add ress periodic monitoring, including White Paper 2, and is finaliz ing more specific guidance for permitting authorities and source owne rs to use in addressing part 70 periodic monitoring requirements for the current implementation of the operating permits program. T hese guidance materials coincide with the scope and basic thrust of the text of the 1996 part 64 Draft subpart C section with additional cla rification for the issues raised by commenters.

Letter(s): American Gas Association (VI-D-154); Ame rican Municipal Power-Ohio

(VI-D-159); American Petroleum Institute (VI-D-146) ; Chemical Manufacturers Association (VI-D-152); Cinergy Corp. (VI-D-141); Coastal Corporation (VI-D-123); Colorado Association of Com merce and Industry (VI-D-182); Electronic Industries Association (VI-D -137); General Electric Company (VI-D-156); Georgia Department of Natural R esources (VI-D-193); Independent Liquid Terminals Associatio n (VI-D-178); KBN Engineering and Applied Sciences, Inc. (IV-D-229); LaClede Gas Company (VI-D-198); Los Alamos National Laboratory (VI-D-210); NESCAUM (VI-D-192); Ohio Chamber of Commerce, et al (VI-D-160);

Pharmaceutical Research and Manufacturers of Americ a (IV-D-217); UCAR Carbon Company, Inc. (VI-D-122); Utility Air R egulatory Group (VI-D-140)

Comment c: Some commenters recommended that EPA sho uld clearly state that

record keeping or existing monitoring are adequate to satisfy subpart C requirements. One commenter noted that at the Sept ember 10, 1996 CAM public meeting, EPA's presentation indicated th at the Agency intended for subpart C requirements to be record ke eping requirements. The commenter noted that the proposed rule, however , did not include a clear statement that subpart C would require only r ecord keeping. Some commenters recommended stating clearly that record keeping should satisfy subpart C requirements, because determining the appropriate level of record keeping is less burdensome than the thoro ugh review generally needed for subpart B. Commenters also recommended clarifying that subpart B units can use record keeping as appropria te. Another commenter recommended that section 64.9(c)(1) be re vised so that theCAM RTC (Part III)

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listed approaches satisfy subpart C without the nee d for approval. Other commenters argued that subpart C requirements shoul d be limited to existing monitoring specified in the applicable und erlying requirement, or to record keeping, or suggested revisions to sectio n 64.9(b) which state that any and all existing monitoring at subpart C p ollutant-specific emissions units satisfies the subpart C CAM require ments. At a minimum, two commenters suggested that this approac h be presumed appropriate with specific rule text added to create the presumption. They also noted that monthly record keeping should be in dicated to be acceptable because shorter time frames provide no a dded protection but greatly increase costs and harm competitiveness. O ne commenter noted that the requirement that existing monitoring may h ave to be upgraded is inconsistent with part 70 and with EPA's stated int ent that part 70 should not be used to add new requirements. Similarly, co mmenters suggested that sources with existing monitoring should be exe mpt from subpart C and in other cases, the rule should create a presum ption that record keeping (including the use of emission factors) is presumptively acceptable absent a showing that additional monitor ing is necessary to assure compliance. One commenter noted that if the discretion under subpart C is not limited in the manner suggested by these comments,

then the RIA for the CAM rule must account for the potential impacts of

this discretion on the costs associated with the ru le.

One commenter recommended revising section 64.9(c)( 1) to add mass balances and fuel analysis to the list of requireme nts for which documentation of compliance satisfies subpart C req uirements. The commenter noted that for glycol dehydrators and oth er uncontrolled emission units, these may be the only feasible moni toring approaches.

Another commenter suggested that the wording of sec tion 64.9(a)(3) should be modified to clarify that subpart C can be satisfied by recorded findings of inspection and maintenance activities. According to the commenter, this clarification is important because subpart B-type monitoring would be cost-prohibitive for the smalle r units subject to subpart C.

An industry coalition recommended that EPA reduce c onfusion by specifying that subpart C monitoring is comparable to the periodic monitoring concept as written in Part 70 and not as described in the 1994 draft Periodic Monitoring Guidance Document. Anothe r trade association stated that cost should be a factor in determining what monitoring isCAM RTC (Part III)

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required under subpart C, and proposed adding a def inition of "cost-effective" to section 64.1 and revising secti ons 64.6, 64.7, and 64.9 to clarify that cost-effectiveness is a factor to b e considered in determining what monitoring is required by CAM.

Finally, an environmental group opposed subpart C a nd argued that the monitoring provisions should require monitoring tha t is capable of being correlated with emission limits. The group stated that record keeping, which is all that will be required of most subpart C sources, is not sufficient monitoring for major sources.

Response: Because EPA has decided not to include th e draft subpart C provisions in

the final rule as discussed in detail in section II .B. of the preamble to the final rule, no further response to these comments i s necessary. The Agency notes that the significant adverse comments on the draft subpart C applicability and content provisions, as summariz ed above and in section 2.2 (Part III) above, were one consideratio n in the Agency's decision to retain the current periodic monitoring provisions in part 70 as opposed to replacing those requirements with provis ions similar to draft subpart C. The Agency believes that the periodic m onitoring requirements provide enhanced monitoring for those sources not covered by part 64.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); American

Gas Association (VI-D-154); American Petroleum Inst itute (VI-D-146); Chemical Manufacturers Association (VI-D-152); Clea n Air Implementation Project (VI-D-153); Colorado Associa tion of Commerce and Industry (VI-D-182); Electronic Industries Asso ciation (VI-D-137); Eli Lilly Company (VI-D-124); Enron Operations Corp. (V I-D-235); General Electric Company (VI-D-156); Los Alamos National La boratory (VI-D-210); Mobil Corporation (VI-D-115); Natural Resources Def ense Council (VI-D-151); NorAm Gas Transmission Company (VI-D-14 2);

Pharmaceutical Research and Manufacturers of Americ a (VI-D-217); Rubber Manufacturers Association (VI-D-171); Wiscon sin Electric Power Company (VI-D-130)

Section 9.2: No Monitoring Option

Comment a: Some commenters noted support for the su bpart C provisions allowing no

monitoring for certain requirements. One commenter specificallyCAM RTC (Part III)

October 2, 1997 Page 249

supported the provisions of section 64.9(c)(2)(i),( ii) and (iii) requiring no monitoring for generic applicable requirements such as opacity, design requirements not requiring ongoing verification, an d emissions from insignificant activities. Another commenter sugges ted as another example units that are assumed to run at design cap acity (e.g., no monitoring of fuel usage should be necessary for sm all process boilers that are assumed to operate 8760 hours/year). Anoth er commenter also noted support for this provision and the general CA M provisions requiring sources with passive emission controls to comply wi th the record keeping requirements of subpart C but exempting them from t he requirement to develop CAM plans. Finally, another commenter sugge sted that section 64.9(c)(2) can be strengthened by establishing that no monitoring is required for the emissions units and applicable sta ndards listed and eliminating the requirement to propose this approac h to the permitting authority.

One commenter requested that section 64.9(c)(3) be clarified so it is clear that units covered by this section are still only s ubject to subpart C, not subpart B, while another recommended deleting secti on 64.9(c)(3) because section 64.2(b) already states that units s ubject to subpart B are not subject to subpart C. Another commenter recomme nded that the limitations in section 64.9(c)(3) on the "no monito ring" option provided in section 64.9(c)(2) not apply to internal combustion engines because the combustion control techniques that act to limit emi ssions from these sources are designed and certified to maintain thei r effectiveness over the engine's entire useful life, so monitoring is unnec essary. The commenter recommended that the no monitoring option be availa ble so long as actual emissions do not exceed the applicable part 70 majo r source thresholds, and noted that this approach is consistent with the SBA proposals.

Response: Because EPA has decided not to include th e draft subpart C provisions in

the final rule, no further response to these commen ts is necessary.

Letter(s): Eli Lilly Company (VI-D-124); Engine Man ufacturers Association

(VI-D-117); Enron Operations Corp. (VI-D-235); Los Alamos National Laboratory (VI-D-210); NorAm Gas Transmission Compa ny (VI-D-142); UCAR Carbon Company, Inc. (VI-D-122)

Section 9.3: More Stringent State/Local Requirement sCAM RTC (Part III)

October 2, 1997 Page 250

Comment a: Several industry commenters recommended deleting section 64.9(d).

They argued that the section 64.9(d) requirement th at owners and operators subject to more stringent monitoring requ irements under state and local law propose, at a minimum, to use such mo nitoring to satisfy subpart C converts state-only and local-only requir ements into federally enforceable applicable requirements under the Act. This provision represents an inappropriately broad use of EPA's st atutory authority under section 114(a)(3) of the Act, according to the comm enters. One commenter stated that this provision has no place i n a federal rule that should prescribe the federal requirements, not enco urage additional state requirements. The commenter argued that this is an other example of how the rule is drafted to make underlying requirem ents more stringent. The commenter added that this provision is at odds with all prior EPA pronouncements that the title V permit process is n ot intended to federalize state-only requirements or add new requi rements. Another commenter stated that this provision should be dele ted to prevent local governments from using CAM as a local revenue enhan cing mechanism.

Response: Because EPA has decided not to include th e draft subpart C provisions in

the final rule, no further response to these commen ts is necessary.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Coalition for

Clean Air Implementation (VI-D-164); Eli Lilly Comp any (VI-D-124); General Electric Company (VI-D-156); KBN Engineerin g and Applied Sciences, Inc. (VI-D-229); Pharmaceutical Research and Manufacturers of America (VI-D-217); Southern Company Services (V I-D-171); Utility Air Regulatory Group (VI-D-140); Virginia Power (VI-D-2 26)

Section 9.4: Miscellaneous Comments

Comment a: Commenters offered other proposed revisi ons to subpart C monitoring

requirements. One commenter noted that the draft r ule lists emissions from insignificant activities, as defined in sectio n 70.5(c), as those for which an owner/operator can propose that no monitor ing is necessary. The commenter noted that part 70 insignificant acti vities cannot be subject to any specific emission limit or standard and are therefore not covered by part 64. Thus the commenter proposed re vising section 64.9(c)(2)(iii) to refer to emission from activitie s that would be insignificant "but for the fact that an applicable requirement (w hich does not specify monitoring) applies." Another commenter argued tha t the ability toCAM RTC (Part III)

October 2, 1997 Page 251

require performance testing to establish indicator ranges under section 64.9(c)(1)(ii) should be deleted. Another commente r recommended that in section 64.9(c)(1)(ii), EPA should clarify that the permit can reference existing indicators rather than include the indicat ors explicitly, because this is consistent with part 70 guidance.

Another commenter requested that EPA provide exampl es of descriptions proposing subpart C monitoring. Finally, one comme nter questioned why CAM plans are not required for subpart C as well as subpart B given that units subject to both subparts will have to include similar monitoring information in permit applications and permits. Th e commenter also supported a single CAM plan for a facility as oppos ed to unit-specific plans. This commenter also noted two places in the rule where EPA appears to be implying that CAM plans are required for subpart C units as well as subpart B units: first, EPA references 64. 3(a)(1) in paragraph (a)(2) and second, the QIP provisions in section 64 .11(a)(2) refer to CAM plans exclusively even though QIPs are applicable t o both subpart B and

C units.

Response: Because EPA has decided not to include th e draft subpart C provisions in

the final rule, no further response to these commen ts is necessary.

Letter(s): County Sanitation Districts, Orange Coun ty, California (VI-D-231);

Department of Energy (VI-D-196); General Electric C ompany (VI-D-156); Georgia Department of Natural Resources (VI-D-193); Los Alamos National Laboratory (VI-D-210)CAM RTC (Part III)

October 2, 1997 Page 252

Section 10: Quality Improvement Plans (QIPs)

Section 10.1: QIPs - Need for More Flexibility

Comment a: A few commenters generally supported the concept of the QIP

requirements. One commenter noted that the general concept of QIPs could serve as an encouragement for owners or opera tors to take steps to prevent pollution through control performance optim ization, but other

commenters cautioned that the details of the curren t QIP provisions provide disincentives for this type of optimization . Another commenter

stated that sections 64.10-64.11 will allow sources to comply with the law, clean up the air, and engage all interested parties without acrimony. This commenter believed that any arbitrary limitations o n the use of QIP procedures to allow sources to comply would hurt th e process of meeting the goals of the Clean Air Act.

Response: No response necessary.

Letter(s): Colorado Association of Commerce and Ind ustry (VI-D-182); Department

of Defense (VI-D-209); Eli Lilly Company (VI-D-124) ; Pharmaceutical Research and Manufacturers of America (VI-D- 217); The Society of the Plastics Industry, Inc. (VI-D-148)

Comment b: State and local agency commenters argued against adopting the QIP

requirements. These commenters argued that these p rovisions complicate the rule and increase the burdens on sta te and local agencies' resources by requiring agencies to set the threshol ds and review sources'

QIP activities. The commenters also did not believ e that the QIP provisions result in emissions reductions, and were not convinced that permitting authorities will not have to expend reso urces on oversight of QIPs although their approval is not required. Comme nts from permitting authorities also reflected concern that the QIP pro visions may impede state and local agency enforcement initiatives. An other agency association noted support for STAPPA/ALAPCO's comme nts on QIPs and believes QIPs only provide sources with the chance to delay necessary corrective action for up to six months.

The agency commenters argued that EPA can rely on C AM plans and corrective action to ensure compliance. One agency noted that state programs allow for initiation of enforcement action s with confirmed highCAM RTC (Part III)

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levels of exceedances and that the threat of such e nforcement is sufficient motivation for the regulated community to take corr ective actions without the implementation of a complex administrative proc ess like a QIP. This commenter added that it is unreasonable to impose p lan preparation and submission requirements on an over-regulated commun ity, or an approval process burden on regulatory agencies already strap ped for resources. One state agency association argued that if the QIP provisions are not eliminated, QIPs should be incorporated directly in to CAM plans in a manner similar to the incorporation of operation an d maintenance plans in air permits.

Another agency expressed concern that numerous QIPs will likely be resource intensive for regulatory agencies. The co mmenter predicted that a CAM source may initiate a QIP prior to the t rigger level in order to prevent a violation, and stated that since the CAM rule does not limit the number of QIPs, a source may have a number of QIPs in various stages at any one time. The commenter felt that QIP track ing and compliance

determinations at such a source would become unnece ssarily burdensome. Finally, the commenter suggested that the QIP provisions should be eliminated or strictly limited since they are not an essential part of CAM and realistic and appropriate compliance ind icator ranges would prevent the need for the QIP provisions.

Finally, another agency argued against QIPs and sta ted that excursions should be enforceable, with any excused level of ex cursions included in the permit based on data for a source category.

Response: The Agency agrees that the QIP concept ca n be applied on a

case-by-case by the permitting more effectively tha n a generally applicable requirement. The final rule provides fo r the QIP mechanism to be applied at the option of the permitting authorit y so that permitting authorities have a specific regulatory tool to addr ess situations in which an owner or operator operates in a manner that involve s excursions followed by ineffective actions to bring the monitored indic ators back into the acceptable ranges established in the permit. Thus, the QIP will help assure that the owner or operator pays attention to the data and, if necessary, improves performance to the point where ongoing compliance with applicable requirements is reasonably assured.

Letter(s): Missouri Department of Natural Resources (VI-D-260); NESCAUM

(VI-D-192); Ohio EPA, Division of Air Pollution Co ntrol (VI-D-180); SanCAM RTC (Part III)

October 2, 1997 Page 254

Diego County Air Pollution Control District (VI-D-1 91); STAPPA/ALAPCO (VI-D-179); State of New Jersey Dept. of Environmen tal Protection (VI-D-215)

Comment c: Some industry commenters also expressed disapproval of the QIP

concept. Commenters stated that the QIP concept of trying to fix a problem before it has begun has become a futile eff ort because of the

enforcement concerns related to the use of CAM data as CE. These commenters argued that CAM triggers will be set as broadly as possible because of the potential enforcement consequences a nd that this problem is exacerbated by designating the second QIP as a v iolation where there may have been no violation of a permit term or unde rlying standard. The commenters proposed eliminating current QIP provisi ons and relying on existing state procedures, such as NOVs and consent agreements, to be used only where actual permit violations have occur red.

Another industry commenter agreed that the QIP requ irements are inconsistent with encouraging sources to set early warning trigger levels so that they can take corrective action before any noncompliance point can be reached. The commenter argued that sources should not have to give up "internal margins" that they have proactive ly set to assure compliance. The commenter added that the requiremen ts to develop a QIP and submit it for approval are inconsistent wit h the role of the source in self-determining and self-reporting compliance s tatus. The commenter stated that only if a source violates an applicable requirement should a permitting authority be concerned with how many tim es a source may exceed an indicator range. This commenter describe d the QIP requirements as being indicative of a complete dist rust of the regulated community to manage compliance and imposing greater stringency than existing requirements which only require sources to report corrective action if noncompliance occurs (such as NSPS). The commenter concluded that this requirement should be deleted.

Finally, a federal agency and another commenter rec ommended that the detailed QIP requirements be replaced with guidelin es. The agency stated that the detailed requirements deny permitti ng authorities and facilities the flexibility to achieve the same or s imilar results in a more

cost-effective manner. This commenter added that in other similar settings, water and air permitting authorities exer cise much greater enforcement discretion. An industry commenter supp orted this positionCAM RTC (Part III)

October 2, 1997 Page 255

and stated that turning quality improvement plannin g into a regulatory requirement will likely impede its usefulness and a cceptability as a management tool.

Response: The Agency agrees and, as noted above, th e final rule includes only a

description of the QIP concept and guidance on how this tool might be applied. The Agency also decided to delete the dra ft requirement that a second QIP during a permit term constitutes a viola tion. The final rule, consistent with the precedent of 40 CFR 60.11(d), p rovides for the general use of part 64 data and other information to docume nt that the owner or operator has failed to operate and maintain an emis sion unit properly and provides for the QIP mechanism as one option for ad dressing situations in which such a failure has occurred. In that respect , any time a QIP is required there will be an underlying finding that t he owner or operator has failed to take appropriate action and may be subjec t to enforcement for

that violation. Thus, there is no need for the fin al rule to include separate enforcement consequences related to multiple QIPs.

Letter(s): Coastal Corporation (VI-D-123); Colorado Association Commerce and

Industry (VI-D-182); Tennessee Valley Authority (VI -D-162); U.S. Small Business Administration (VI-D-239); UCAR Carbon Com pany, Inc. (VI-D-122)

Comment d: Certain commenters stated that QIP requi rements should apply only to

units with control devices. One commenter argued t hat it is not even clear how QIP requirements could apply to Subpart C units, many of which will be able to satisfy CAM with existing mon itoring or even no monitoring, or with recordkeeping and work practice s. The commenter proposed revisions to § 64.3(b)(4) to establish tha t the requirement to implement a QIP only applies to pollutant-specific emissions units with a

control device. Another commenter stated that if S ubpart C is intended to be a clarification of part 70 periodic monitoring, then it is inappropriate to subject Subpart C monitoring to the QIP provisions. A state agency requested clarification of whether QIP requirements are applicable to Subpart C units.

Response: Because subpart C has been deleted from t he final rule, part 64

monitoring, and thus, QIPs, if deemed necessary wou ld apply only to units

with control devices.CAM RTC (Part III)

October 2, 1997 Page 256

Letter(s): Air Products and Chemicals, Inc. (VI-D-1 86); NorAm Gas Transmission

Company (VI-D-142); Ohio EPA, Division of Air Pollu tion Control (VI-D-180)

Comment e: One commenter stated its belief that the QIP provisions were intended to

provide a mechanism for sources to experiment with low indicator ranges or gain experience with implementing CAM. The comm enter's suggestion for altering the QIP provisions of the 1 996 draft Part 64 to realize the goals the commenter described included: shielding a reasonable number of QIPs, such as four, in a permi t term from enforcement; allowing a "free" QIP during a unit's first year of operation; deleting the requirement that a QIP period be repor ted as a deviation; and allowing flexibility in establishing the QIP thresh old. Another commenter also stated that it interpreted corrective action a nd QIPs as practices to be encouraged rather than sanctioned.

Response: The intent of the QIP provisions is to as sure that where poor performance

is identified, the corrective actions taken result in improved performance. Thus, the Agency disagrees with the commenter's app roaches to QIP implementation. The final rule, consistent with th e Agency's intent, allows for a permitting authority to require implementatio n of a QIP upon determination that the owner or operator has failed to meet its duty to take proper corrective action.

Letter(s): Can Manufacturers Institute (VI-D-181); National Environmental

Development Association (VI-D-169)

Section 10.2: Threshold for Requiring a QIP (64.10 )

10.2.1: Appropriate Threshold Issues

Comment a: Environmental groups argued that the 5 p ercent threshold is too high.

One of the commenters argued that a threshold of 5 percent allows sources to operate outside their chosen ranges for more than a week every six months before triggering a QIP which is p articularly inappropriate for units relying on active control devices to cont rol emissions. The commenter explained that a device that is not maint ained or operated properly could cause a source to substantially exce ed its emission limits and gave an example of failure of a control device expected to achieve 90CAM RTC (Part III)

October 2, 1997 Page 257

percent which would lead to emissions as much as te n times the applicable emission limit. Assuming that this happe ns for 5 percent of an operating period, the commenter stated that emissio ns for that period would have increased by 50 percent. The commenter a lso discussed the

PSC case in Colorado where the CAM rule would not h ave required a QIP since the 19,000 violations only represented 4 perc ent of operating time.

This commenter concluded that the CAM rule's fundam ental flaws make it incapable of distinguishing between excursions that lead to significant

emissions increases and those that do not.

Industry commenters, however, generally argued that the 5 percent threshold for triggering a QIP is too low. (See re lated comments in Section 14-Enforcement Concerns.) Several commente rs agreed that formal QIPs may be appropriate when corrective acti on has not prevented recurring deviations and that the improvement proce ss consists of both an evaluation procedure and a corrective action plan, but they stated that the 5 percent QIP implementation threshold is arbitrary . Another commenter noted that EPA could not possibly have sufficient i nformation to know that it is reasonable to expect all sources to have less than 5 percent excursions when operating and maintaining properly given that this is a new program. The commenter requested that the prog ram be more flexible and recognize the nature of implementing a new program. Others added that this approach once again serves t o drive operators to set trigger levels as loosely as possible.

Certain commenters relied on a report submitted to the docket (see Docket Item A-91-52-IV-D-777) to show that, in set ting NSPS, EPA has incorporated a percentage of expected exceedances ( "typically 5 percent to 10 percent"). The commenters argued that settin g an arbitrary percentage of 5 percent now would violate EPA's own quantitative framework in the NSPS rulemakings and possibly othe r rulemakings. These commenters stated that even moving from a 10 percent to 5 percent expected exceedance has significant implica tions for the achievability of a particular standard discussing a n example based on Table 2 of the cited report. The commenters conclu ded by stating that setting the threshold of 5 percent for triggering a QIP will increase the stringency of all standards and in some cases will increase the stringency of a standard by at least an order of magnitude. S imilarly, a state agency noted that the proposed 5 percent threshold is not consistent with the 6 percent de minimis value established in 40 CFR 60.2 84(e)(1)(ii) (Subpart BB).CAM RTC (Part III)

October 2, 1997 Page 258

One industry commenter argued that the 5 percent QI P threshold is both too stringent and inconsistent with the 90 percent data availability requirement in § 64.6(b). The commenter recommende d revising § 64.10(b)(2) to read that "The threshold shall be set at no higher than 10 percent unless . . . ."

A number of commenters urged EPA to delete the pres umptive 5 percent QIP trigger and provide sources with the flexibilit y to set this percentage at a high level. Some of the commenters argued that th ese percentages may need to be high at first, decreasing over the term of the initial permit to allow sources to "shake down" their operations with respect to proposed monitoring. Another commenter similarly proposed t hat the default value in § 64.10(b)(2) be set initially at 10 percent and then gradually reduced to 5 percent over the course of the first permit term as both sources and permitting authorities gain more experience in the implementation of CAM. Similarly, a commenter suggested that no threshold be required but that the permitting authority be given discretion to req uire a QIP when necessary taking into account various factors such as compliance history, size of the source and pollutant toxicity. One com menter noted that the triggering of a QIP if indicator ranges are exceede d more than once is too quick a trigger.

A number of commenters also argued that any single percentage threshold is too simplistic. Commenters asserted th at a 5 percent presumptive indicator range threshold is not an app ropriate means of determining what does or does not need corrective a ction and is certainly not an acceptable way to determine what constitutes a permit violation. A commenter suggested that the magnitude of any exc eedances and not merely their duration should be considered noting t hat Public Service Company would not have been required to implement a QIP under the facts of that case despite the fact that there were nearly 20,000

exceedances and EPA made a determination that the s ituation was environmentally significant. The commenter explaine d that this result comes about because violations only represented 4 p ercent of operating

time with data recorded in six-minute intervals. I ndustry commenters

likewise asserted that in some cases, the threshold could be triggered by many small excursions over a tightly established in dicator range while another source with large excursions (but of shorte r duration) of a loosely established indicator range would never trigger the threshold. A commenter stated that sources must be given the fle xibility to implementCAM RTC (Part III)

October 2, 1997 Page 259

these provisions in a manner that results in the in tended continued performance improvement. Commenters also argued th at the single threshold is another example of the rule unnecessar ily limiting the discretion of the permitting authority to implement the rule in an effective manner and reiterated that it runs completely contr ary to the objective of having sources establish conservative trigger level s.

Commenters arguing against a single percentage thre shold stated that threshold levels should be determined on a case-by- case basis and should consider factors such as the stringency of t he CAM indicator ranges, the nature of the process and its inherent variability, and the type of controls installed. Similarly, commenters noted that the 5 percent threshold would generally be too harsh for units su bject to limitations on hours of operation and/or where indicator ranges ar e set well below applicable emissions limitations or standards. Some commenters suggested that permitting authorities should be all owed to set case-specific thresholds at a percentage that allow s a unit to use "cost-effective" monitoring while offering a reason able assurance that the unit is complying with permit terms. Finally, one coalition group provided several examples of issues that the 5 percent thres hold does not account for. In the commenter's first example they pointed out that a source that uses Method 22 to screen for "any visible emissions " should not be held to a 5 percent QIP trigger if subsequent follow up with Method 9 readings shows no problem. The commenter gave another exampl e based on the

fact that, where Method 9 is used, EPA studies have shown that a positive error of 5 percent can occur 5 percent of the time which would be sufficient to trigger a QIP alone. The commenter c oncluded that, since other parameters could likewise exceed the threshol d depending on factors such as precision of the measurement, inher ent variability of a source under proper operating conditions, and how t he indicator range

was set, these and other factors should be consider ed in setting an appropriate threshold.

A state agency also noted that determining exceedan ces or excursions would be difficult where the applicable regulations do not have an averaging period and that the 5 percent threshold t o trigger a QIP may not be practical for situations when monitoring under t he CAM rule is established on a less frequent basis such as daily, weekly, or monthly. Because it would be inappropriate and difficult to establish a percentage threshold for triggering a QIP that covers all type s of monitoring,CAM RTC (Part III)

October 2, 1997 Page 260

commenter recommends that the QIP trigger should be established rule by rule based on the source category and type of mo nitoring involved.

Two commenters urged EPA to provide sources with th e flexibility to set a higher percentage QIP trigger for excursions than f or exceedances, since parameter ranges may be set below the emission limi t and excursions may occur more frequently than exceedances.

State agencies that opposed a single percent thresh old noted that the potential exists for some facilities to set broad i ndicator ranges in order to

avoid excursions that would result in exceedances o f the 5 percent threshold. One agency suggested that the 5 percent operational time threshold should be issued as guidance, similar to the NSPS excess emission report program. The commenter stated that this would allow permitting authorities to evaluate the conditions i nvolving the non-compliance event where otherwise, permitting au thorities would have to implement a QIP unnecessarily or would be unable to require a QIP because they are locked into an operational time va lue.

Another state agency suggested revising § 64.10(a)( 1) to refer to the percent threshold "measured as a percentage of oper ating time or as a percentage of all possible deviations over the oper ating period" in order to clarify how the threshold should be calculated wher e processes do not operate continuously. The commenter discussed the example of a Non-Metallic Mineral Processing unit, employing a f abric filter, which is required to collect data daily even though the proc ess may not operate for the entire day.

Still another state commenter supported EPA for rec ognizing that some deviations from standards can be reasonably expecte d to occur. This commenter provided a copy of a state regulation for CEMS [Tenn. Rule 1200-3-20-.06] which establishes de minimis levels below which no

notices of violations will be issued. The commente r explained that the

rule establishes different de minimis levels for ea ch source subject to the rule and each pollutant monitored.

Certain commenters recommended allowing the thresho ld to be set at any reasonable level in order to provide an incentive t o set low trigger levels. The commenters argued that if a source sets the tri gger level low, then a higher threshold for triggering a QIP would be appr opriate.CAM RTC (Part III)

October 2, 1997 Page 261

Response: The Agency agrees that no one threshold a pplies equally to all control

device situations. Further, the Agency recognizes that individual situations may call for shorter or longer threshold s or thresholds related to parameters values rather than duration of excursion s. The final rule provides that a QIP trigger may be set in the permi t but does not require it. Where such a trigger is used, a level of 5 percent is suggested as a potentially appropriate threshold. The final rule also provides that a QIP can be required after a determination by the permit ting authority or the Administrator that a source owner or operator has f ailed to conduct proper operation and maintenance as documented through par t 64 monitoring and other available information. In this respect, the QIP provisions are analogous to existing corrective action remedies av ailable to address compliance problems.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); American

Gas Association (VI-D-154); American Municipal Powe r - Ohio (VI-D-159); Baltimore Gas & Electric Company (VI-D-177); Can Ma nufacturers Institute (VI-D-181); Chemical Manufacturers Associ ation (VI-D-152); Clean Air Implementation Project (VI-D-153); Coalit ion for Clean Air Implementation (VI-D-164); Coastal Corporation (VI- D-123); Colorado Association of Commerce and Industry (VI-D-182); Du Pont Engineering (VI-D-127); Eastman Chemical Company (VI-D-173); El i Lilly Company (VI-D-124); Exxon Company, USA (VI-D-135); General Electric Company (VI-D-156); Georgia Department of Natural Resources (VI-D-193); Mobil Corporation (VI-D-115); National Environmental Deve lopment Association (VI-D-169); Natural Resources Defense Council (VI-D -151); Nebraska Department of Environmental Quality (VI-D-211); Nor Am Gas Transmission Company (VI-D-142); Pennsylvania Cham ber of Business and Industry (VI-D-114); Rubber Manufacturers Assoc iation (VI-D-149); San Diego Air Pollution Control District (VI-D-191) ; Sierra Club, Lone Star Chapter (VI-D-242); State of Tennessee Department o f Environment and Conservation (VI-D-234); Texaco Environment Health & Safety (VI-D-199); Texas Natural Resource Conservation Com mission (VI-D-189); Utility Air Regulatory Group (VI-D-140) ; Virginia Power (VI-D-226); Wisconsin Electric Power Company (VI-D- 130)

10.2.2: Particular Threshold Concerns

Comment a: Certain commenters recommended deleting the authority of the permitting

authority to require a more stringent threshold. O ne commenterCAM RTC (Part III)

October 2, 1997 Page 262

proposed eliminating the phrase ". . . set no highe r than . . ." from § 64.10(b)(2) to eliminate permitting authority discr etion to set the percentage for requiring a QIP at less than 5 perce nt. Another commenter argued that the provision enabling a perm itting authority to impose a percent threshold for triggering a QIP tha t is less than 5 percent is too open-ended and stringent. The commenter sta ted that this is particularly true for the initial six-month CAM rep orting period where CAM experience is being gained for the first time. Comm enter suggests that a 5 percent threshold should be the minimum that permit ting authorities can require.

Response: This is no longer an issue as the final r ule includes no QIP requirement

nor a specific threshold minimum or maximum if a QI P is to be applied.

Letters: Hawaiian Electric Company, Inc. (VI-D-165) ; Natural Gas Pipeline

Company of America (VI-D-118)

Comment b: One commenter suggested that the QIP tri gger should reflect the part 64

data availability requirements. The commenter pro posed revisions to § 64.10(a)(1) such that the percentage threshold to trigger a QIP would be based on monitoring time during any semiannual repo rting period, consistent with the part 64 minimum data availabili ty percentage requirements. Similarly, a state agency noted that § 64.10 is not consistent with § 64.3(b)(4) and vice versa.

Response: The final rule includes neither a require d minimum data availability

requirement or a QIP threshold. Neither is an issu e for the final rule.

Letters: Eli Lilly Company (VI-D-124); Ohio EPA, Di vision of Air Pollution Control

(VI-D-180)

Comment c: One commenter stated that, if EPA does n ot eliminate provisions making

the second QIP in a permit term a permit violation, the QIP trigger should

be based on actual exceedances of emissions limitat ions or standards. The commenter argued that sources could then set in dicator ranges closer to actual operating parameters without conce rns that excursions from those ranges will trigger a QIP. Under this ap proach, the commenter recommended that triggering a QIP a specified numbe r of times during the permit term still constitute a separate permit viol ation which would provide a further incentive for setting conservative indica tor ranges.CAM RTC (Part III)

October 2, 1997 Page 263

Response: The final rule does not make the second Q IP a violation, but leaves the

enforcement implications of an owner’s failure to o perate and maintain control equipment within the applicable indicator r anges to the appropriate permitting authority.

Letter(s): Eli Lilly Company (VI-D-124)

Comment d: One commenter was concerned that any exc eedance or excursion could

trigger a QIP and suggested that an owner or operat or be allowed a certain number of exceedances/excursions per year b efore they are required to implement a QIP.

Response: The number of exceedances or excursions a llowed before a more

comprehensive correction plan or other enforcement action is necessary is case-specific and left to the discretion of the appropriate permitting authority in the final rule.

Letter(s): Occidental Chemical Corporation (VI-D-16 6)

Comment e: Some commenters argued that excursions t hat occur during specifically

excused excursions or during startup, shutdown or m alfunction should not count toward determining whether a QIP is necessary . One commenter stated that the fact that a source may not be opera ting within normal ranges during such conditions is not indicative of any failure or defect in the CAM plan that would need a QIP. One commenter noted that the QIP could be triggered because indicator ranges wer e set unrealistically low due to the use of new and experimental monitori ng techniques and insufficient data availability about those new tech niques. Another commenter recommended that a higher threshold be al lowed when justified for low capacity factor units or other sp ecial situations. One commenter recommended that § 64.3(b)(4) should be r evised to explicitly allow permitting authorities to exempt certain type s of excursions from calculating the QIP threshold. Another stated that this would mirror EPA NSPS policy. Another commenter agreed that excused excursions

should not count toward the QIP threshold since the entire concept of excusing an excursion is based on the idea that adv erse consequences are unwarranted in some cases. The commenter specif ied recent standards, such as the HON, which provide a number of excusedCAM RTC (Part III)

October 2, 1997 Page 264

excursions which diminishes over time as problems w ith a new device are resolved and also specifically exempt certain excur sions such as those that occur during start-up, shutdown and malfunctio n. The commenter explained that counting these excursions toward a Q IP would increase the stringency of such standards. This commenter agreed with others who

stated that excursions which are not associated wit h excess emissions, such as excursions from indicator ranges that were set very low, should not be counted in calculating the QIP threshold.

Response: The Agency agrees that there is a plethor a of process and control device

situations for which determining the appropriate th reshold for applying a QIP or other appropriate enforcement action is not possible in a general format of a rule such as part 64. Further, the Age ncy recognizes that a particular emission unit may be subject to emission limitations with designated periods of exceptions including start-up , shutdown, and

malfunctions. It is reasonable to delete excursion s that occur during such periods in determining the total duration of excurs ions during a reporting period. It is also reasonable that such site-speci fic determinations are possible only on a case-by-case basis. For this an d other reasons noted above, the final rule does not include specific thr eshold requirements for implementing QIP nor does the rule specify that a Q IP is the only appropriate enforcement response to egregious contr ol equipment problems.

Letter(s): Baltimore Gas & Electric Company (VI-D-1 77); Dow Chemical Company

(VI-D-120); Houston Lighting & Power Company (VI-D- 228); Niagara Mohawk (VI-D-168); Ohio Chamber of Commerce, et al (VI-D-160); Pennsylvania Chamber of Business and Industry (VI-D -114); Southern Company Services (VI-D-171); Southwestern Public Se rvice Company (VI-D-224); Texas Utilities Services, Inc. (VI-D-1 21); Total Petroleum, Inc. (VI-D-190); Utility Air Regulatory Group (VI-D -140); Virginia Power (VI-D-226); Wisconsin Electric Power Company (VI-D- 130)

Comment f: One commenter supported the current CAM draft's use of a percentage

threshold as a QIP trigger rather than the use of a numerical threshold and noted that a percentage threshold is a more rat ional way of determining whether or not a facility has a problem . A group of commenters requested that EPA clarify that CAM comp liance plans are not required in any circumstances where a QIP is ne cessary and stated that this would clear up a perceived redundant requ irement. Finally,CAM RTC (Part III)

October 2, 1997 Page 265

another commenter requested clarification of the ph rase "in any reporting period." The commenter asked whether this meant th e frequency with which the Part 70 permit requires submittal of emis sions reports. The commenter noted that the reporting frequency can si gnificantly affect the number of QIPs that are prepared during a permit te rm (i.e., the more frequent the reporting frequency the greater the po ssibility that a QIP could be required), and recommended that the 5 perc ent threshold be

determined on an annual basis.

Response: The Agency agrees that a QIP requirement in part 64 could result in

redundant compliance schedules and, as noted above, has removed the requirement from the final rule. Clarification of the reporting frequency and how such might affect QIPs, if applicable, are to be determined on a case-by-case basis with the permitting authority.

Letter(s): American Electric Power (VI-D-129); Cali fornia Association of Sanitation

Agencies (VI-G-206); County Sanitation Districts of Los Angeles County (VI-D-232); Niagara Mohawk (VI-D-168); Tri-TAC (VI- D-225)

Section 10.3: Elements of QIPs (64.11(a))

Comment a: Certain commenters recommended that § 64 .11(a)(3) should allow QIPs

to fix only monitoring problems if monitoring probl ems cause the high level of excursions. A commenter stated that this is esp ecially warranted given the likely trial and error process during early CAM implementation. Other commenters noted that § 64.11(a)(2) appears to assu me that "control performance problems" is the only reason a QIP woul d be triggered. The commenters argued that QIPs could also be triggered because indicator ranges were set unrealistically low (e.g., because adequate data were not available). These commenters recommended that this provision should be revised to be neutral with respect to the likely cause of the QIP, and § 64.11(a)(3) should be revised to include "modific ations of levels specified in the CAM plan" as one of the actions th at might follow completion of the QIP.

Response: The Agency disagrees. The Agency notes th at the final rule, like the 1996

part 64 Draft, does not provide for QIPs that addre ss monitoring only. The Agency believes that this type of change should not be made through a QIP. By its nature, a QIP focuses on situations where the owner or operator has failed to meet its obligation to prope rly operate and maintainCAM RTC (Part III)

October 2, 1997 Page 266

an emissions unit or control device properly. The QIP requirements in the final rule clarify this approach and no longer mandate that a QIP be implemented solely because a set duration of excurs ions or exceedances occurs. A source owner who needs to change approve d part 64 monitoring can address any monitoring problems dire ctly through the appropriate permit modification process.

Letter(s): Mobil Corporation (VI-D-115); National E nvironmental Development

Association (VI-D-169); Utility Air Regulatory Grou p (VI-D-140); Virginia Power (VI-D-226)

Comment b: One commenter noted that § 64.11(a)(3) r equires the QIP to be modified

to include corrective actions. The commenter reque sted that the rule specify when it is envisioned that the QIP be modif ied.

Response: Because there is no requirement for a QIP to be submitted or approved,

the timing of this issue is not addressed specifica lly in the rule. Because the QIP obligations should be implemented as expedi tiously as practicable, EPA would expect the corrective action procedures to be

added to the QIP as soon as the source as determine d the appropriate steps to take based on its investigative phase.

Letter(s): Niagara Mohawk (VI-D-168)

Comment c: One commenter suggested that where a QIP is required for a major

facility, it should be on a source/pollutant-specif ic basis, while other Subpart B sources should be required to develop a Q IP and modify it as necessary to gain experience.

Response: The QIP provisions in the final rule incl ude significant flexibility in how the

permitting authority can use the QIP tool to improv e performance. The suggested approach could be followed by a particula r agency in appropriate circumstances.

Letter(s): Pennsylvania Department of Environmental Protection (VI-D-174)

Comment d: One commenter stated that, for Subpart C units, the QIP concept does

not apply in many cases, and the rule should provid e significant flexibilityCAM RTC (Part III)

October 2, 1997 Page 267

in these cases. The commenter described indicator ranges, excursions, and thresholds as inappropriate for many simple mon itoring approaches and recommended that specific content be left to th e permitting authority's

discretion and that source be allowed to use existi ng non-compliance reports where appropriate.

Response: Because the final rule does not include t he subpart C provisions, no

response to this comment is necessary.

Letter(s): Los Alamos National Laboratory (VI-D-210 )

Section 10.4: Timing of QIPs (64.11(b))

Comment a: Some commenters expressed support for th e time allowed for QIP

completion in the rule. Commenters noted support f or the flexibility in draft § 64.11(b) which allows an owner or operator to obtain a site-specific time extension allowing more than 180 days to compl ete a QIP if necessary. However, one commenter did not feel tha t EPA approval would be necessary since the permitting authority w ould have knowledge of site-specific circumstances. Another commenter stated generally that it believes 180 days is a reasonable period.

Environmental groups and some state agencies, howev er, argued that a period of 180 days is too long for completing a QIP . One environmental group stated that it is inappropriate to allow six months to solve a problem that may be causing a source to have emissions that are grossly in excess of its emission limits, particularly when the rule does not require this period to be reported as noncompliance. A state ag ency agreed and proposed that a plan be submitted within 14 days ou tlining an enforceable compliance schedule for implementing a QIP. This c ommenter argued that without an approved, enforceable schedule, pos sible emission

violations could continue without recourse from the permitting authority. Another state agency stated that 180 days may be to o long for completing a QIP, especially since the rule seems to allow sou rces the opportunity to extend this period. The commenter asked that states be given discretion to decide the time period for completing a QIP on a case-by-case basis. Finally, a state agency association stated that, if the QIP provisions are

not eliminated from the CAM rule, it recommends red ucing the time allowed for QIP completion from 180 days to 30 days

.CAM RTC (Part III)

October 2, 1997 Page 268

In addition, some industry commenters argued that a period of 180 days is too short for completing a QIP. One commenter note d that the pharmaceutical industry is a batch manufacturing in dustry where products are run in campaigns which may last a few weeks, a few months or all year. The commenter stated that in the situation, if the need for a QIP has been identified near the end of a product campa ign, the opportunity to implement the QIP may not occur for some time, unti l the product is manufactured again and that implementation of the Q IP immediately upon permitting authority notification and completion wi thin 180 days may not be practicable. The commenter also noted that the 180 day limit may also not be feasible where a permit modification be comes necessary. This commenter recommended revisions to § 64.11(b) to allow completion of the QIP in a period of more than 180 days withou t the approval of the permitting authority or EPA. Other commenters stat ed that if equipment must be ordered or a permit revision must be obtain ed, QIP implementation often will require longer than 180 d ays to complete. These commenters suggested that the rule require th at the completion of

the QIP should be in accordance with the schedule o utlined in the

source's QIP.

Finally, one commenter stated generally that the ti me periods for implementation, completion and notification of a QI P are arbitrary and

should be set in the context of an individual QIP.

Response: The Agency agrees that site-specific situ ations will dictate the appropriate

time necessary to complete appropriate control equi pment or process corrections. For this reason, the final rule requi res source owners and operators to complete any QIP, if applied, as exped itiously as practicable and to notify the permitting authority if they dete rmine that a QIP will take longer than 180 days rather than establishing a spe cific amount of time within which the QIP must be completed. Within thi s guideline is an inherent role for the permitting authority to revie w the correction activity and take appropriate enforcement action if the sour ce owner has not responded expeditiously with effective behavior.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Association

of Battery Recyclers (VI-D-155); Chemical Manufactu rers Association (VI-D-152); General Electric Company (VI-D-156); Ge orgia Department of Natural Resources (VI-D-193); Minnesota Pollution C ontrol Agency (VI-D-197); Natural Resources Defense Council (VI-D -151); Nebraska Department of Environmental Quality (VI-D-211); NES CAUM (VI-D-192);CAM RTC (Part III)

October 2, 1997 Page 269

Pharmaceutical Research and Manufacturers of Americ a (VI-D-217); Sierra Club, Lone Star Chapter (VI-D-242); Texaco E nvironment Health and Safety (VI-D-199); Utility Air Regulatory Group (VI-D-140)

Comment b: One commenter stated that the period for completing a QIP should not

include any time necessary to obtain approval of a CAM plan modification. Given the uncertainties concerning the process by which permitting authorities will approve modifications to CAM plans , the commenter requested that EPA state that the 180 day period fo r completing a QIP does not include any time necessary to gain approva l of a permit modification request resulting from a QIP.

Response: The Agency disagrees. The QIP process sh ould not be applied to

developing and obtaining modifications to the monit oring. Such modifications should be implemented through the per mit revisions

process.

Letter(s): Eli Lilly Company (VI-D-124)

Comment c: One commenter requested that EPA clarify the meaning of the term

"completion" in § 64.11(b)(2). The commenter noted that "completion" can mean either that the QIP be prepared and implem entation begun or

that all elements of the QIP are finished. Another commenter requested clarification as to how long a source must adhere t o an implemented QIP. The commenter stated that the requirement to follo w a QIP should end

when certain criteria are met.

Response: The Agency intends that completion of a Q IP mean that the control

equipment modification, correction, or replacement deemed necessary to provide that the pollution-specific emissions unit is again operating in compliance with the applicable limitation or standa rd has been completed.

Letter(s): Georgia Department of Natural Resources (VI-D-193); NESCAUM

(VI-D-192)

Comment d: One commenter suggested that during the first round of permits, QIP

applicants should have the opportunity to modify a proposed QIP before submitting it for permitting authority approval. T he commenterCAM RTC (Part III)

October 2, 1997 Page 270

recommended giving the applicant at least two or th ree modifications for their QIP before submitting it to the permitting au thority and then requiring implementation of the QIP within 60 days after appr oval.

Response: Because the final rule provides that the QIP be applied at the discretion of

the permitting authority, no response to this comme nt is necessary.

Letter(s): Pennsylvania Department of Environmental Protection (VI-D-174)

Section 10.5: Recordkeeping and Reporting for QIPs (64.11(c))

Comment a: Some commenters objected to the § 64.11( c)(2) requirement to report that

a QIP has reduced the likelihood of similar levels of excursions or exceedances. The commenters stated that this requi rement is unnecessary because the QIP requirement, by definit ion, is designed to

reduce the likelihood of excursions or exceedances.

Response: Because the final rule provides that the QIP be applied at the discretion of

the permitting authority, no response to this comme nt is necessary.

Letters: American Automobile Manufacturers Associat ion (VI-D-157); Chemical

Manufacturers Association (VI-D-152); General Elect ric Company (VI-D-156)

Comment b: A few commenters stated that sources sho uld not be required to report

test method results after a source has implemented its QIP. These commenters noted that parametric levels and ranges are established on the basis of testing or other relevant information and argued that triggering a QIP should not automatically mean that the validi ty of those tests or information is suspect.

Response: The Agency agrees that a performance test is not always necessary to

confirm that a control equipment or process modific ation is necessary. What is necessary is left to the discretion of the permitting authority in the

final rule.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Chemical

Manufacturers Association (VI-D-152); General Elect ric CompanyCAM RTC (Part III)

October 2, 1997 Page 271

(VI-D-156); National Environmental Development Asso ciation (VI-D-169)Total Petroleum, Inc. (VI-D-190)

Comment c: One commenter suggested that § 64.11(d) should be deleted because

this issue is already addressed by part 70.

Response: The Agency has deleted the subject requir ement for the owner to certify

that the QIP has been successful; however, the Agen cy believes that this type of statement is an appropriate provision desig ned as a certification-style requirement which indicates to the permitting authority that the source owner or operator believes the QIP has been successful.

Letter(s): General Electric Company (VI-D-156)

Comment d: Two commenters suggested that the rule s hould be modified so that a full

permit revision is not required for CAM plan change s that result from implementing a QIP.

Response: The level of permit revision necessary fo llowing a QIP is left to the

discretion of the permitting authority in the final rule.

Letters: Utility Air Regulatory Group (VI-D-140); V irginia Power (VI-D-226)

Section 11: [Reserved]CAM RTC (Part III)

October 2, 1997 Page 272

Section 12: Part 70/71 Revisions

Section 12.1: Monitoring Revisions

12.1.1: Revision of Periodic Monitoring Language

Comment a: Two commenters stated that the draft rev isions would eliminate backstop

monitoring at too many sources. They argued that t he gap-filling provided by CAM is incomplete since Subpart C allow s owners to propose to perform no monitoring even at units that may not be insignificant. While periodic monitoring may be unnecessary for un its that are truly insignificant, EPA must ensure that any exceptions to monitoring are narrowly tailored to such units. In supplemental c omments, an environmental organization added that leaving a lar ge number of sources subject to periodic monitoring as described in part 70 is inappropriate. The commenter argued that it is not clear that part 70 would require anything beyond existing monitoring and it is incon ceivable that the intent of the enhanced monitoring requirement was for the vast majority of sources to do what they were already doing.

A State agency noted that the CAM revisions to peri odic monitoring requirements do not cover certain sources, and ther efore, the periodic monitoring revisions should be revised such that pe rmitting authorities have the discretion to determine what monitoring wi ll be appropriate for sources which are not subject to CAM, NSPS or NESHA P requirements but are subject to periodic monitoring requirements

.

Response: The final rule does not include subpart C but instead retains the periodic

monitoring provisions in part 70 and 71 based on th ese and other concerns (see sections 2.2 and 9 (Part III), above) . The part 70 and 71 periodic monitoring provisions require that all exi sting monitoring be included in permits and that, if such monitoring do es not exist or is inadequate to provide a reasonable assurance of com pliance, additional, periodic monitoring must be included in the permit.

Letter(s): Natural Resources Defense Council (VI-D- 151 and 244); State of

Tennessee Department of Environment and Conservatio n (VI-D-234)

Comment b: Some commenters supported the provision for streamlining multiple

requirements. Commenters noted that this change to Part 70 willCAM RTC (Part III)

October 2, 1997 Page 273

promote the important streamlining concept outlined in White Paper No. 2.

However, one commenter noted concern over whether subsumed limits under a streamlining concept count as "emission lim itations or standards" for triggering CAM applicability (see detailed summ ary under section 2.3.1 (Part III)).

Response: Because there were no adverse comments on this draft revision, the final

rule contains this revision to §70.6(a)(3)(i). As mentioned above in Section 2.3.1 (Part III), Comment c, subsumed limit s that do not appear in a title V permit would not count as "emission limit ations or standards" for purposes of part 64 applicability.

Letters: Air Products and Chemicals, Inc. (VI-D-186 ); Clean Air Implementation

Project (VI-D-153); Integrated Waste Services Assoc iation (VI-D-147); South Carolina Electric & Gas Company (VI-D-116); U tility Air Regulatory Group (VI-D-140)

Comment c: One commenter argued that EPA should del ete references to sections

114(a)(3) and 504(b) in the proposed amendments to Part 70 and Part 71. The commenter stated that the phrase "and any othe r procedures and methods that may be promulgated pursuant to section s 114(a)(3) or 504(b) of the Act" should be deleted from 70.6(a)(3 )(1) and Part 71. According to the commenter, the CAM rule implements those sections and it would be a breach of faith after the long de velopment of CAM with stakeholder input to promulgate other rules under t hese provisions.

Response: The Agency disagrees. These references m erely indicate that the

Agency has the ability to promulgate additional req uirements under these statutory provisions, including specific procedures and methods that could supplement the general requirements in Part 64.

Letter(s): Chemical Manufacturers Association (VI-D -152)

Comment d: One state agency suggested that EPA shou ld consider revising the part

70 definition of "insignificant activities." The c ommenter noted that if the definition of "insignificant activity" were revised so that a permitting authority would have discretion to classify some tr ivial units that are subject to applicable requirements as "insignifican t activities," many of the concerns about periodic monitoring could be address ed.CAM RTC (Part III)

October 2, 1997 Page 274

Response: This suggestion is beyond the scope of th e Part 64 rulemaking, and thus

is not addressed in this document. This issue goes beyond monitoring and potentially affects other applicable requiremen ts such as underlying emission limits that may apply to small emissions u nits.

Letter(s): Georgia Department of Natural Resources (VI-D-193)

Comment e: A commenter noted in supplemental commen ts that the portions of the

RIA released for comment indicate that the final ru le will not provide the clarification of the part 70 periodic monitoring re quirements promised by the CAM program.

Response: The commenter is correct that the final r ule does not include provisions

analogous to subpart C of the 1996 part 64 Draft. See the response to Comment b in section 9.1 (Part III) for the Agency' s response to this

issue.

Letter(s): Utility Air Regulatory Group (VI-D-252)

12.1.2: Interim Issues for Periodic Monitoring

Comment a: Several commenters noted that they suppo rt the concept of eliminating

periodic monitoring from part 70 so that all monito ring required above and beyond existing monitoring occurs through part 64 o nly. One of these commenters noted that addressing both periodic moni toring and enhanced monitoring in one rule promotes regulatory efficiencies. However, several of these commenters argued that EP A should immediately suspend the existing periodic monitorin g requirements of Part 70 and Part 71 or make clear that existing monitori ng satisfies those requirements. They argued that EPA should not requ ire states and sources to expand resources to comply with a rule w hich the Agency intends to replace. They also noted that timing pr oblems will make the

transition unworkable. The CAM rule will not be fi nalized until mid-1997 and will not be incorporated into state implementat ion plans until well after

that. In the meantime, it is not desirable for sta tes currently drafting Part 70 permits to be required to implement existing per iodic monitoring requirements which the CAM rule will replace, accor ding to these commenters. One trade association suggested that E PA immediatelyCAM RTC (Part III)

October 2, 1997 Page 275

issue a narrowly-focused rule eliminating the perio dic monitoring requirements in section 70.6(a)(3)(i)(B). The rule making process could be accelerated by simultaneously issuing a notice o f proposed rulemaking and a provision that the rule will become effective within 30 days if no

substantive adverse comment is received. Another c ommenter stated that if states continue to implement current Part 7 0 periodic monitoring requirements in their permit programs, regulated so urces may be faced with overlapping and duplicative regulatory require ments when CAM is implemented.

Other commenters noted generally that EPA should ad dress periodic monitoring in concert with CAM. One commenter stat ed that the current EPA strategy indicates a plan to address periodic m onitoring in two years, while another stated that EPA should provide states with immediate guidance on periodic monitoring so that any current state development and implementation of Part 70 periodic monitoring w ill be as consistent as possible with the CAM requirements which will repla ce these provisions of

Part 70.

Response: As mentioned in Section I.C.4 of the prea mble to the final rule, the Agency

disagrees with the commenters’ suggestions to immed iately suspend or remove the monitoring provisions of parts 70 and 71 . Moreover, because the Agency has decided not to delete the periodic m onitoring requirement in part 70 or to replace that provision with provis ions similar to the draft subpart C of part 64, these comments are generally no longer applicable.

Letter(s): Air Products and Chemicals, Inc. (VI-D-1 86); American Automobile

Manufacturers Association (VI-D-157); American Gas Association (VI-D-154); American Petroleum Institute (VI-D-146) ; BP Oil Company (VI-D-113); Chemical Manufacturers Association (VI- D-152); CITGO Petroleum Corporation (VI-D-172); Class of '85 Regu latory Response Group (VI-D-161); Clean Air Implementation Project (VI-D-153); Coastal Corporation (VI-D-123); Colorado Association of Com merce and Industry (VI-D-182); County Sanitation Districts of Orange C ounty, California (VI-D-231); Eastman Chemical Company (VI-D-173); El i Lilly Company (VI-D-124); General Electric Company (VI-D-156); Mo bil Corporation (VI-D-115); Ohio Chamber of Commerce, et al (VI-D-1 60); Pennzoil Company (VI-D-133); Phillips Petroleum Company (VI- D-131); South Carolina Electric & Gas Company (VI-D-116); Souther n Company Services (VI-D-171); Tennessee Valley Authority (VI -D-162); Utility AirCAM RTC (Part III)

October 2, 1997 Page 276

Regulatory Group (VI-D-140); Wisconsin Electric Pow er Company (VI-D-130)

Section 12.2: Compliance Certification

Comment a: A few commenters noted general support f or the compliance certification

provisions. A state agency agreed with EPA regardi ng the need for the proposed compliance certification provisions. An i ndustry commenter supported EPA's decision that not all deviations co nstitute violations and the concept that states may classify some excursion s as "excused." The

commenter stated that excused excursions, which are also provided for in recent EPA regulations such as the HON and the Grou p 1 and Group 4 Polymers and Resins MACT standards, are important b ecause no monitoring system or control device can work perfec tly all the time and there is an ever-increasing emphasis on using data from parameter monitoring as proof of violations.

Public interest groups, however, argued that the dr aft rule improperly eliminates the need to certify compliance with emis sion standards. The groups stated that sources will not really be able to certify compliance because they will not have emissions information to compare with the standards and that the rule improperly allows them to state that they do not know whether they are in compliance or not. Th ey claimed that, to

accommodate the absence of emissions data, the draf t rule allows owners to provide a statement on their compliance status b ased on uncorrelated parameter measurements in place of a compliance cer tification. In this statement, owners can claim some sort of compliance regardless of monitoring results, according to the commenters. T hey argued that sources with no excursions can identify continuous compliance although the absence of excursions from owner-selected range s does not necessarily constitute compliance with emission lim its, and even sources that have experienced excursions can claim complian ce by specifying intermittent compliance. They concluded by stating that owners are absolved of any duty to know their compliance statu s and report it accurately, and that this "statement" provides a fa lse appearance of compliance with standards.

Response: The Agency disagrees with the commenters’ suggestions that the rule

promotes ignorance by responsible officials on the compliance status of their pollutant specific emissions units with contr ol devices. On theCAM RTC (Part III)

October 2, 1997 Page 277

contrary, the Agency believes the rule changes enha nce responsible officials’, permitting authorities’, the Agency’s, and the public’s knowledge concerning pollutant specific emissions units’ comp liance status. As a result of today’s rulemaking activity, owners or op erators will be required to collect data, and pay attention to that data, fr om emissions control devices, which should lead to better operation and maintenance of those devices. Better operation and maintenance should l ead to consistently-achieved emissions reductions, as oppo sed to temporary reductions achieved during sporadic emissions unit testing. Moreover, the permitting authorities will be better able to t arget their enforcement and future rulemaking activities by focusing on tho se emissions units with one or more possible exceptions to compliance. Lik ewise, the public will benefit by being able to identify non-complying or potential non-complying pollutant-specific emissions units without performi ng resource-intensive

reviews.

The Agency also disagrees with the assertion that c ompliance certification on the basis of part 64 data provides a false appea rance of compliance

with emission standards. Commenters’ claims here a re based on the mistaken notion that compliance certifications can be made based only on direct measurement of emissions or on statistically correlated parameter monitoring. As explained in the preamble and in se ction 6 of this

document, EPA believes that a reasonable assurance of compliance can be provided by monitoring using indicator levels es tablished on the basis of performance testing data and other engineering a nd historical data. Owners and operators will not be able to certify to compliance regardless of the monitoring results under part 64. Owners an d operators may not certify to continuous compliance if monitoring show s exceedances or

excursions from indicator levels. In such circumst ances, owners and operators may, at most, certify to intermittent com pliance. If a source is

in a constant state of exceedance or excursion for an entire certification period, the owner or operator cannot even certify t o intermittent compliance. Thus, it is inaccurate to claim, as so me commenters did, that owners and operators can assert some type of c ompliance regardless of the monitoring results.

Letter(s): American Lung Association et. al. (VI-D- 238); Dow Chemical Company

(VI-D-120); General Electric Company (VI-D-156); Na tural Resources Defense Council (VI-D-151); Natural Resources Defen se Council (VI-D-267 and 268); Texas Natural Resource Conserva tion Commission (VI-D-189)CAM RTC (Part III)

October 2, 1997 Page 278

Comment b: Several industry commenters supported E PA's interpretation of section

114 regarding the term "continuous or intermittent. " These commenters supported EPA's explanation in the preamble and the revisions to the part 70 compliance certification provisions that "contin uous or intermittent" refers to the methodology used to produce the data on which a

certification is based. One commenter cautioned th at requiring a source

to state whether data are intermittent or continuou s is reasonable, but assuming noncompliance for periods without test dat a would not be. Another commenter noted that this approach ensures that CEMS are not required in order to certify continuous compliance, while still another commenter cautioned generally that continuous compl iance should not be interpreted to mean that monitoring was performed u sing a CEMS or

COMS.

An environmental group, however, argued that the ru le does not meet the Act's requirement that sources be able to certify w hether compliance is continuous or intermittent. The commenter argued t hat sources will not be able to use the monitoring under part 64 to cert ify whether compliance was continuous or intermittent since they will not have adequate emissions information to compare with emissions sta ndards, and emphasized their view of the Act as requiring certi fication as to whether compliance is continuous or intermittent. The comm enter stated that EPA's argument that the Act can be interpreted to r equire that sources certify whether the method used to certify complian ce is continuous or intermittent is erroneous, adding that the language of the statute is not ambiguous and does not require clarification by EPA . Further, if clarification were needed, the legislative history supports the conclusion that this section of the Act is focused on complian ce, according to the

commenter. Another commenter also recommended that EPA use the definition of "intermittent" included in the part 7 0 preamble (i.e., that intermittent means that periods of noncompliance oc curred).

Response: The Agency believes additional explanatio n of what it means to certify to

intermittent compliance is necessary. The Agency d isagrees with the view that the statutory term “intermittent” refers only to the methodology used to measure compliance but agrees that “intermi ttent” refers to compliance. Any suggestions following the “methodo logy” interpretation do not accurately reflect the interpretation relied upon by EPA in promulgating this rule. Nonetheless, the methodolo gy used inCAM RTC (Part III)

October 2, 1997 Page 279

determining compliance is relevant to whether a cer tification can be for continuous or intermittent compliance. The Agency has required source owners to identify whether the methodology used for the certification provides data on a continuous basis or intermittent ly so that EPA can evaluate whether the methodology provides a basis f or a continuous or

intermittent certification.

The question remains as to what constitutes “interm ittent” compliance. The Agency disagrees with the view that a certifica tion of intermittent compliance is a certification of noncompliance as t o periods not shown to be in compliance. Rather, EPA interprets “intermit tent” compliance as meaning no more than the fact that monitoring or ot her information is not available to demonstrate compliance for certain per iods in the overall certification period. As to other periods covered by the certification, a certification of intermittent compliance means eith er the source was in noncompliance or the data were not sufficient (e.g. , excursions from indicator ranges occurred or no data were available ) to make an accurate determination regarding whether the source was in o r out of compliance. EPA believes this is a reasonable interpretation of the term “intermittent” compliance.

The certification provision does not require owners and operators to expressly use the terms continuous or intermittent in their certifications.

Rather, EPA believes it more useful to have owners and operators submit

the data and information in the certification that show whether the

certification is for intermittent or continuous com pliance. Critical to this showing is the information on whether the method us ed produces intermittent or continuous data and whether any dev iations, exceedances, or excursions have occurred during the certificatio n period. For example, when a responsible official certifies compliance ba sed on a method providing intermittent data or notes any deviations , exceedances, or

excursions, this will show that the certification i s for intermittent compliance. When a responsible official certifies compliance based on a method providing continuous data and no deviations, excursions, or exceedances have occurred (or all such occurrences have been adequately addressed by other information), this wi ll show that the certification is for continuous compliance. Accord ingly, EPA believes that this rulemaking is consistent with the statutory co mmand that compliance certifications include whether compliance is “conti nuous or intermittent.”CAM RTC (Part III)

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CAM monitoring has been designed to produce data so that certifications can be made which show whether compliance is contin uous or intermittent. The CAM rule requires data collectio n at the frequency necessary to indicate changes in control device per formance. See § 64.3(b)(4). Where no changes are detected outsid e the indicator ranges set to provide a reasonable assurance of com pliance, then the

CAM data are sufficient to allow a certification of continuous compliance with applicable emission standards. Where CAM data indicate that episodes of excursions or exceedances have occurred , the CAM monitoring data do not provide a reasonable assuran ce that the source is in compliance for duration of the excursion or exce edance and thus cannot serve as a basis for certifying continuous c ompliance for the certification period. Unless other data exist to s how compliance for the

time when excursions or exceedances occurred, the o wner or operator would be certifying to intermittent compliance for that certification period.

Letter(s): Air Products and Chemicals, Inc. (VI-D-1 86); American Automobile

Manufacturers Association (VI-D-157); California As sociation of Sanitation Agencies (VI-D-206); Chemical Manufacturers Associa tion (VI-D-152); Class of '85 Regulatory Response Group (VI-D-161); Clean Air Implementation Project (VI-D-153); County Sanitatio n Districts of Orange County, California (VI-D-231); Eastman Chemical Com pany (VI-D-173); Kennecott Corporation (VI-D-119); Los Alamos Nation al Laboratory (VI-D-210); National Environmental Development Asso ciation (VI-D-169); Natural Resources Defense Council (VI-D-151); Tenne ssee Valley Authority (VI-D-162); Tri-TAC (VI-D-225); Wellman, Inc (VI-D-237)

Comment c: Some commenters raised concerns about ho w the draft revisions to part

70 were written, and that the revisions may not be consistent with EPA's intent. Some commenters opposed the requirement to identify all deviations as "exceptions" to the compliance certif ications. One group stated that some deviations may be excused and, by definition, would not be "exceptions." Two utility commenters argued tha t this language could prevent sources from certifying compliance in the f ace of any excess

emissions or excursions. Others noted that to matc h EPA's intent stated in the preamble of the CAM proposal, i.e., that dev iations are only potential exceptions to compliance, both § 70.6(c)( 5)(iii)(C) and the parallel section of part 71 should be revised to re ad: "The certification shall identify as possible exceptions to the certif ication of compliance any period for which the owner or operator identifies a deviation."CAM RTC (Part III)

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Two commenters argued for a more significant change to the draft revisions. They argued that so long as a source su ccessfully takes corrective actions when CAM shows a possible proble m and no reference method testing determines that a violation has occu rred, a source should be able to certify without exceptions. According t o these commenters, any other result effectively changes the underlying standards by determining compliance based on means other than re quired compliance test procedures.

Some commenters also opposed having to categorize e xceedances and excursions as deviations and having to identify exc ursions in certifications.

The commenters noted that, first, EPA has failed t o provide protections in part 70 from states categorizing any deviation a s a violation, but rather has limited that protection to part 71. The commen ters also stated that even if a deviation is not always a violation, iden tifying exceptions to compliance based on inconclusive excursion values c ould inappropriately stigmatize a source and interfere with its business dealings with other companies or with the general public. They added t hat citizens could also try to use the information to bring a citizen suit even where the information has no actual bearing on proof of nonco mpliance. This problem will be especially acute if EPA proceeds wi th the CE rulemaking, according to the commenters. They cited to the Uni tek decision as an example where a judge used a permit compliance cert ification against a source in just this fashion. One commenter stated that instead, excursions should be identified in a separate secti on of the certification which would highlight adverse trends and those sour ces that may need follow up attention. Coupled with a shield from th e use of CAM as CE, this would encourage sources to set aggressive trig ger levels that truly provide early warning levels, according to the comm enter. The commenter stated that, if EPA continues to classify excursions as deviations, then the part 71 definition must be inc luded in part 70 so that it is clear that deviations will not always be violati ons. Even with that protection, the commenter argued that there will li kely be de facto increased stringency through establishing indicator levels as enforceable requirements and thus there will be incentive to se t trigger levels as loosely as possible.

Other commenters noted that EPA is encouraging sour ces to set indicator ranges significantly below actual emission limits o r standards to promote good O & M practices, but that excursions from low indicator ranges doCAM RTC (Part III)

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not indicate violation of either emission standards or permit terms. These

commenters stated that excursions should therefore not have to be reported as deviations in annual compliance certifi cations unless the source's permit states that excursions are a permit violation. One commenter noted that this is analogous to getting a speeding ticket for traveling 54 mph in a 55 mph zone, or being issued a ticket when the speedometer is not functioning properly. The comme nter argued that EPA should eliminate any aspects of the rule that w ould create the situation where a source is in compliance with orig inally permitted limits at all times during a reporting period, but is unable to certify continuous compliance with those limits. One commenter believ ed generally that

indicator monitor excursions should not be consider ed immediately to be deviations of the permit, while another stated that the rule should state clearly that indicator range exceedances are to be used to trigger

corrective action and not to establish violations.

Another commenter suggested that if a source has su fficient information

to determine that an excursion does not constitute a violation of underlying emission limitations or standards, it sh ould not be required to identify the excursion as a deviation or an excepti on to compliance in a compliance certification.

Certain commenters argued that the rule requires to o much information to

be included in the certification. One commenter ar gued that because excursions do not necessarily imply noncompliance, reporting every one does not make sense, and that the over reporting wi ll make it difficult for the agencies to determine which sources are in fact likely to be violating applicable requirements. The commenter stated that , if a source is in compliance, it should just be able to say so. Anot her commenter

recommended that EPA allow sources to cross referen ce previously filed reports. Finally, a commenter added that excursion s should not be construed or reported as deviations unless the sour ce requests that the indicator range be an enforceable permit condition. The commenter suggested establishing a separate notification and reporting requirement

for excursions.

Two commenters stated that the rule text should cle arly state the owners and operators are not required to determine whether any exceedances or excursions constitute deviations or noncompliance. They also stated that the intent expressed in the preamble that a certif ication identifying deviations is not an admission of noncompliance mus t be reflected in theCAM RTC (Part III)

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rule. One of the commenters added that the rule sh ould not require sources to categorize both excursions and exceedanc es as deviations; doing so contradicts EPA's stated intent to leave r oom for states to interpret the term deviation. The commenter argued that requiring sources to indicate excursions as deviations is yet another way in which compliance obligations are being changed and enforc ement opportunities

created.

One environmental commenter argued that EPA had wea kened the existing compliance certification language by only requiring a “statement” on compliance.

Response: Consistent with many of these comments, t he final rule requires an owner

or operator to classify excursions and exceedances as "possible exceptions to compliance" and not as "deviations" f or purposes of part 70. For part 71, EPA has already developed a definitio n of "deviation." Today's rulemaking revises that definition to incor porate the concepts of

excursions and exceedances and makes clear that tho se events are not necessarily violations. However, the Agency disagr ees with suggestions that the rule not require reporting of all excursio ns or exceedances. The

existence of an excursion or exceedance raises the possibility that a source has not met its applicable requirements, and thus an excursion or exceedance needs to be identified as a possible exc eption in the

certification. This is true even where corrective action is taken and a

reference test has not been run. As the CE rule ma de clear, noncompliance with emission standards can be shown by evidence other

than reference tests. The Agency notes that, as in the 1996 part 64 Draft , the final rule allows an owner or operator to cross-reference previous re ports that identify the excursions or exceedances. Thus, this provision do es not significantly affect the reporting burdens involved with certifyi ng compliance. Of course, an owner or operator is always free to add any explanatory text to

document that an identified excursion or exceedance did not in fact indicate a failure to meet an underlying applicable requirement. To provide for a simple certification process, however , the Agency has determined not to require such explanations for all identified exceedances or excursions. Sections I.C.5 and II.K.2, of the p reamble to the final rule contain additional discussion of the compliance cer tification provisions.

EPA did not intend by adding the word “statement” t o the requirement for a compliance certification to imply that anything l ess than a certificationCAM RTC (Part III)

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was required. EPA has therefore rephrased the prov ision to delete the

word “statement.”

Letter(s): American Gas Association (VI-D-154); ASA RCO Incorporated (VI-D-187);

BP Oil Company (VI-D-113); Chemical Manufacturers A ssociation (VI-D-152); Cinergy Corp. (VI-D-141); Clean Air Imp lementation Project (VI-D-153); Coalition for Clean Air Implementation (VI-D-164); Colorado Association of Commerce and Industry (VI-D-182); Du Pont Engineering (VI-D-127); Eastman Chemical Company (VI-D-173); El i Lilly Company (VI-D-124); Exxon Company, USA (VI-D-135); Gas Proc essors Association (VI-D-163); Houston Lighting & Power Co mpany (VI-D-228); Mobil Corporation (VI-D-115); Mobil Corporation (VI -D-248); Natural Resources Defense Council (VI-D-151); Niagara Mohaw k (VI-D-168); Ohio Chamber of Commerce, et. al. (VI-D-160); PPG I ndustries, Inc. (VI-D-136); Rubber Manufacturers Association (VI-D- 149); Southwestern Public Service Company (VI-D-224); Texas Title V Pl anning Committee (VI-D-188); The Society of the Plastics Industry, I nc. (VI-D-148); Utility Air Regulatory Group (VI-D-140); Virginia Power (VI-D-2 26)

Comment d: One commenter stated that EPA should ind icate how deviations from

indicator ranges will be reconciled with the actual operating conditions at a source. The commenter suggested that the rule indi cate how to address situations where, due to the operating conditions a t a source, a deviation from CAM plan parametric ranges does not indicate a violation of applicable standards. For example, implementation of a QIP to correct a deviation in the exit gas temperature of a condense r used to control VOCs above the temperature specified in the CAM plan for control of VOCs may

not indicate a violation if, at the time of the dev iation, the VOC being controlled is of a relatively low volatility.

Response: The Agency believes that the commenter’s suggestion is included in the

final rule, as sources with deviations from indicat or ranges are required to adjust those ranges, if they prove insufficient. I n addition, specific conditions which preclude non-compliance, such as t he use of materials with low volatility, should be considered and ident ified to the extent known in developing indicator ranges.

Letter(s): Pharmaceutical Research and Manufacturer s of America (VI-D-217)CAM RTC (Part III)

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Comment e: Many industry commenters objected that t he requirement that "any other

material information" be identified in a compliance certification is flawed and should be deleted. Several commenters argued t hat the discussion of this requirement in the preamble is inconsistent because the preamble states that this requirement "merely" implements th e statutory prohibition against knowing false statements, but no regulatory language is necessary to implement this self-effectuating provi sion. They argued that EPA should delete the Part 70 and Part 71 language which states that other material information may be required and rely on section 113(c)(2) alone. Commenters also noted that the preamble ref ers more generally to "information [that] potentially affects complian ce status." This broad approach to the requirement may make it difficult f or responsible officials to certify compliance with any confidence or certai nty, according to some commenters. One commenter argued that this provisi on will also raise issues regarding its relationship to environmental audit policies.

Several commenters also stated that distinguishing whether information may be considered "material" or not will be difficu lt, and is often a disputable issue that is resolved only through admi nistrative or judicial processes. They suggested that, to avoid disputes over this issue, a certification should be based solely on information that is required by applicable requirements. Two commenters also argue d that compliance is properly determined only by the required complia nce determination method, and that requiring sources to also determin e compliance based on other "material" information changes the stringe ncy of the standard and is unmanageably vague and ambiguous. Finally, some commenters stated that the inability to determine what is "mat erial" will be made impossible if EPA proceeds with a CE rule.

Commenters also argued that section 113(c)(2) is no t a wide open requirement to identify and record/report informati on that someone could

consider material. These commenters added that the legislative history documents that for criminal sanctions to apply unde r section 113(c)(2), the source must be on notice of the recordkeeping, info rmation or monitoring requirements in question.

Response: The Agency disagrees with the commenters’ suggestion to remove from

the compliance certification provisions language th at requires responsible officials to identify, if necessary, any other mate rial information used in developing compliance certifications. The Agency b elieves these provisions are consistent with and help explain the existing duty underCAM RTC (Part III)

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parts 70 and 71 for responsible officials to perfor m a reasonable inquiry concerning data that could impact the compliance ce rtification. For example, in the Response to Comments Document for t he Title V Operating Permits Program (see EPA Air Docket Item A-90-33-V-C-1) the Agency noted that having knowledge that a deviation occurred (either through required monitoring or self-auditing) and not reporting that information in a compliance certification would con stitute criminal conduct (see p. 5-20 of that document). The Agency notes t hat this provision is

limited to material information that the owner or o perator is aware of -- information beyond required monitoring that has bee n specifically assessed in relation to how the information potenti ally affects compliance status. This requirement merely emphasizes the gen eral prohibition in section 113(c)(2) of the Act on knowingly making a false certification or omitting material information and the general crimi nal section on submitting false information to the government codi fied at 18 USC 1001. The revised part 70 provision does not impose a dut y on the owner or operator to assess every possible piece of informat ion that may have some undetermined bearing on compliance. For the r easons stated in the CE rulemaking, EPA does not believe that requir ing the certification to

take into account other material information makes standards more stringent.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); BP Oil

Company (VI-D-113); Can Manufacturers Institute (VI -D-181); Chemical Manufacturers Association (VI-D-152); Chemical Manu facturers Association (VI-D-258); Clean Air Implementation Pr oject (VI-D-153); Coalition for Clean Air Implementation (VI-D-164); Eastman Chemical Company (VI-D-173); General Electric Company (VI-D- 156); Integrated Waste Services Association (VI-D-147); National Env ironmental Development Association (VI-D169); Ohio Chamber of Commerce, et. al. (VI-D-160); South Carolina Electric & Gas Company ( VI-D-116) Southern Company Services (VI-D-171); Southern California Ga s Company (VI-D-222); Texas Natural Resource Conservation Com mission (VI-D-189); The Society of the Plastics Industry, I nc. (VI-D-148); Utility Air Regulatory Group (VI-D-140); Utility Air Regulatory Group (VI-D-252); Virginia Power (VI-D-226); Wisconsin Electric Power Company (VI-D-130)

Comment f: Two commenters objected to the requireme nt to base certifications on

"such other facts as the permitting authority may r equire." They stated that this grants unlimited discretion to permitting authorities, with noCAM RTC (Part III)

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regard for the legal relevance of the information b eing requested, or the cost and time involved in gathering the information . These commenters also argued that sources should not have to submit certifications to both EPA and permitting authorities. They stated that t he requirement to

submit certifications to EPA is a waste of resource s and imposes an unnecessary paperwork processing burden on EPA regi onal offices.

Another commenter suggested that the compliance cer tification should be changed to annual. Finally, one local government e ntity recommended allowing sources to specify only those permit terms or conditions for which compliance is in question and certify compliance wi th all other permit

terms and conditions. The commenter stated that li sting all permit conditions would be very burdensome for both source s and permitting

authorities.

Response: The Agency notes that many of the comment ers’ suggestions refer to

provisions that were promulgated as part of the ori ginal part 70 requirements on July 21, 1992, 57 FR 32250 and are not directly affected by the provisions which have been revised. The Age ncy believes that the rule changes with explicit language allowing cross- referencing and group treatment of pollutant-specific emissions units in compliance, as opposed to individual treatment of pollutant-specific emiss ions units with possible exceptions to compliance or non-compliance, should satisfy one

commenter’s concerns.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); County

Sanitation Districts of Los Angeles County (VI-D-23 2); General Electric Company (VI-D-156); Southern Company Services (VI-D -171)

Comment g: State and local agency associations supp orted the use of data other than

reference test method data for compliance certifica tion. They noted that using such other information will provide additiona l flexibility in ensuring that sources are complying with applicable emission limits. A state agency also supported statements made in the preamb le and in the draft rule that establish that compliance determinations can be made using data other than compliance or reference test method data. An industry commenter, however, argued that CAM data should not be used for determining compliance with emissions standards. T he commenter proposed eliminating the revisions to Part 70 which provide for the use of CAM data in compliance certifications.CAM RTC (Part III)

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Response: The Agency disagrees with the commenter’s suggestion to remove

provisions that would allow compliance certificatio ns to use part 64 data. As mentioned above, the Agency believes these provi sions are consistent with and help explain the existing duty under part 70 for responsible officials to perform a reasonable inquiry concernin g data that could impact the compliance certification.

Letter(s): Coastal Corporation (VI-D-123); Georgia Department of Natural

Resources (VI-D-193); STAPPA/ALAPCO (VI-D-179)

Comment h: A state agency recommended revising the proposed § 70.6(c)(5)(iii)(B) to

refer to methods used to determine the "apparent co mpliance status." This would ensure that compliance certifications ar e consistent with the nature of the data generated by CAM plans.

Response: The Agency believes that this concern is adequately addressed by

identifying excursions and exceedances as "possible exceptions."

Letter(s): Texas Natural Resource Conservation Comm ittee (VI-D-189)

Section 12.3: Deviation Definition

Comment a: Several industry commenters argued that EPA should state that a

"deviation is not always a violation" in the Part 7 0 revisions. They objected to the statement in the preamble that "dev iation" is not defined in Part 70 to avoid constraining permitting authoritie s in their interpretation of the term. They argued that the whole point of CAM, as opposed to EM, is to de-link CAM monitoring data from compliance s o that such data is not necessarily demonstrative of noncompliance. Th erefore, they argued that making deviations, or a specific number of the m, violations undermines the CAM goal of monitoring additional pa rameters at levels below regulatory limits. One group noted that adeq uate flexibility for states would be provided by a provision in Part 70 stating only that a deviation is not necessarily a violation and leavin g out the rest of the language used in the Part 71 approach. Commenters concluded that, to assure that EPA's intent is carried out, the part 7 1 definition of deviation should be included in both part 70 and part 64.CAM RTC (Part III)

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One commenter objected to leaving the definition ou t of Part 70 in order to give states flexibility in interpreting the term. The commenter argued that it would be intolerable to have every permitting au thority making different interpretations of what conduct violated the same l aws; there is a crucial, overriding need for uniformity on this point.

Response: The final part 64 rule does not rely on t he term "deviation" (see Comment

c under section 12.2 (Part III), above). Therefore , the issues raised in these comments are no longer material for purposes of this rulemaking. As an aside, the Agency rejects one commenter’s ass ertion “that the whole point of CAM...is to de-link CAM monitoring d ata from compliance.” The primary purpose of part 64 is to provide a rea sonable assurance of compliance with applicable requirements. Additiona lly, CAM monitoring is intended to provide owners and operators with da ta to make compliance certifications. Neither of these goals can be accomplished if CAM data are disassociated from compliance.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); ASARCO

Incorporated (VI-D-187); Chemical Manufacturers Ass ociation (VI-D-152); Chevron Companies (VI-D-132); Clean Air Implementat ion Project (VI-D-153); Coalition for Clean Air Implementation (VI-D-164); Coastal Corporation (VI-D-123); Colorado Association of Com merce and Industry (VI-D-182); Dow Chemical Company (VI-D-120); Eastma n Chemical Company (VI-D-173); Eli Lilly Company (VI-D-124); G as Processors Association (VI-D-163); General Electric Company (V I-D-156); Georgia Department of Natural Resources (VI-D-193); Mobil O il Corporation (VI-D-248); National Environmental Development Asso ciation (VI-D-169)Texas Title V Planning Committee (VI-D-14 8); The Society of the Plastics Industry, Inc. (VI-D-148); UCAR Carbon Company, Inc. (VI-D-122)

Comment b: Some commenters argued that part 71 shou ld not state that every 24

hours of a deviation is a new deviation. They stat ed that the Act already provides that a new violation occurs every 24 hours , and they saw no value in arbitrarily multiplying the number of non- violation deviations other

than to make sources look bad. One commenter added that the identification of any exceedance or excursion for p urposes of compliance certification should be based on the appropriate av eraging period as specified in the applicable requirement and not bas ed on a 24 hour time period.CAM RTC (Part III)

October 2, 1997 Page 290

Response : This provision is included as part of pa rt 71 as promulgated on July 1,

1996, 61 FR 34202 and is retained in the definition adopted in today's rulemaking.

Letter(s): Chemical Manufacturers Association (VI-D -152); Eli Lilly Company

(VI-D-124); Utility Air Regulatory Group (VI-D-140)

Comment c: A state agency recommended specific rule language to clarify that

deviations are only indicators of compliance and sh ould not be used as de facto compliance determination statements.

Other commenters recommended that the definition sh ould not equate all

excursions and exceedances with a deviation. One c ommenter noted that such an approach could have serious implicatio ns for recordkeeping/reporting burdens, while others recom mended that the definition of "deviation" in § 71.6(a) (and any sim ilar definitions added to §§ 70 and/or 64.1) be revised to establish that an excursion is only a deviation if the indicator range is an enforceable permit term. Finally, one commenter noted that an excursion has no bearing on whether a

deviation has occurred.

Response: The final rule does not equate excursions or exceedances with deviations

for part 70 purposes; see further response under se ction 12.2 (Part III),

above.

Letter(s): American Gas Association (VI-D-154); Coa stal Corporation (VI-D-123);

General Electric Company (VI-D-156); Texas Natural Resource Conservation Commission (VI-D-189); Utility Air Reg ulatory Group (VI-D-140); Virginia Power (VI-D-226)

Comment d: One commenter recommended that part 70 b e revised to include the

authority to excuse some excursions as is provided in § 71.6. The

commenter stated that the two rules should be consi stent on this point

because otherwise states will not have the authorit y to do this under part

70.CAM RTC (Part III)

October 2, 1997 Page 291

Response: Part 64 does not establish excursions as necessarily constituting a

violation of any requirement; thus there is no need to include any explicit provision stating that certain excursions are "excu sed."

Letter(s): Total Petroleum, Inc. (VI-D-190)CAM RTC (Part III)

October 2, 1997 Page 292

Section 13: General Statutory Issues

Comment a: Some commenters argued that the draft ru le does not satisfy the statutory

mandate for EPA to require "enhanced monitoring" of emissions at major stationary sources. A vendor association stated th at "enhanced monitoring" must refer to no less than direct monit oring of emissions because section 114(a)(1) only permits owners and o thers to "keep records on control equipment parameters, production variables or other indirect data when direct monitoring of emissions i s impractical." According to the commenter, since direct monitoring was in widespread use in 1990, it is difficult to imagine that "enhan ced" monitoring could refer to anything less than direct monitoring. Public in terest groups argued that the draft rule does not require monitoring tha t can be correlated with emissions standards, or compliance certifications t hat actually certify compliance. They also stated that the requirements for enhanced monitoring and compliance certification were intend ed to address the ongoing problem of the lack of reliable information on air emissions. They argued that, rather than implement the statute to promote reliable information that supports right to know and effecti ve enforcement, the draft CAM approach provides poor information that w ill make a sham out of the compliance certification. The commenters co ncluded that the rule should be called the scam rule, not the CAM rule.

The vendor association stated that to have the mini mum level of monitoring needed to meet the legislative intent of section 114(a)(3), EPA should withdraw the current CAM proposal and re-pro pose CAM as a rule requiring direct monitoring of emissions from major sources. Given the information EPA has already collected pursuant to t he development of Part 64, the commenter argued that re-proposal and promulgation should be possible by the current July 1997 deadline or sh ortly thereafter. The

association recommended, as an alternative, that ma jor sources be required to directly monitor pollutant emissions on ly from emission points that exceed major source emission thresholds, as de fined in sections 112,

182, 187, and 302 of the Clean Air Act. The associ ation stated that, unlike CAM, direct monitoring is consistent with Vi ce President Gore's call to "[g]ive the EPA a way to measure the progress an d then throw away the rule book altogether."

An environmental group also argued that part 64 mon itoring must produce data capable of correlation to actual emissions. T his commenter statedCAM RTC (Part III)

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that CEMS and COMS must be used for this purpose wh ere they are already required to be in place and parameter monit oring that is capable of correlation would be acceptable for other source s. Another commenter added that the CAM proposal does not sati sfy the requirement in section 504 that alternative monitoring methods must "provide sufficiently reliable and timely information for de termining compliance." The commenter stated that EPA has not proven that i ndicator ranges are sufficiently reliable to meet the statutory standar d. Since EPA has provided no scientific basis for correlating monito red parameters with

emission rates for most control devices, it has not demonstrated that a source which stays within established indicator ran ges will be in compliance with applicable emission limits or stand ards.

The environmental group also argued that the rule d oes not meet the Act's requirement that SIPs include enforceable emi ssion limitations. The group stated that section 110, which was includ ed in the original Clean Air Act of 1970, provides that SIPs shall inc lude enforceable emission limitations, requires monitoring and repor ting of emissions, and provides that SIPs shall require states to correlat e emission reports with emission limitations. According to the commenter, limitations are not enforceable unless it is possible to compare them w ith sources' actual emissions and this capability is not provided by th e draft rule. The

commenter concluded that the rule cannot meet the r equirements of the 1990 Amendments, which were intended to improve the level of monitoring, if it does not even meet the requiremen ts of the original Act.

Contrary to these arguments, some industry commente rs stated that the CAM approach can satisfy the requirements of the Ac t. One commenter added that the proposed rule reasonably achieves th e goal of meeting the statutory requirement to develop enhanced monitorin g plans. Another noted that the approach of documenting good O&M, in dicating excursions and taking corrective action fulfills the statute i n a reasonable manner.

Response: The Agency disagrees that the final rule fails to satisfy the Act. As

discussed in section I.C.3. of the preamble to the final rule, part 64 is intended to provide a reasonable means of supplemen ting existing regulatory provisions that are not consistent with the enhanced monitoring requirements of title VII of the 1990 Amendments to the Act. The EPA believes that the CAM approach is a reasonable appr oach commensurate with this role. The Agency agrees with incorporati ng direct emissions and compliance monitoring where the technology is avail able and feasible,CAM RTC (Part III)

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and promoting public disclosure of air pollution em issions information. However, the Agency does not believe that such a br oad, expensive, and technically complex objective can be accomplished t hrough a single rulemaking at this time. Not only would trying to impose such monitoring requirements across the board in the short term be technically unrealistic, doing so would put in jeopardy the possibility of a dvancing monitoring of existing emissions sources through part 70 operatin g permits program already in progress.

The Agency notes that current requirements for subm ission of emission statements prepared by owners of industrial air pol lution sources continue independent of part 64 (such as statements required under section 182(a)(3) of the Act) and such statements will be b ased on the most currently available information, including new moni toring data produced under part 64.

The Agency firmly believes that continued proper op eration and maintenance of process operations and air pollution controls demonstrated capable of achieving applicable standa rds is vital to ongoing compliance. By providing the necessary dat a and requiring appropriate corrective action, part 64 will result in owners and operators being more conscientious in the attention paid to t he operation and maintenance of air pollution control equipment and practices than has been the case in the past. This approach has prove n effective in reducing air pollution emissions and improving comp liance performance in the implementation of many existing regulations wit h similar requirements. See also preamble section I.C.5. for further discu ssion of the use of part 64 data for purposes of part 70 compliance certific ations.

EPA disagrees that the “enhanced monitoring” requir ed by section 114(a)(3) must be direct emission monitoring becaus e section 114(a)(1) specifies that keeping records on control equipment parameters is authorized “when direct monitoring of emissions is impractical.” The cited provision in section 114(a)(1) is intended to broaden the scope of EPA’s investigative power and there is no suggestio n in the statute that Congress intended the term “enhanced monitoring” in section 114(a)(3) to be limited by the language in section 114(a)(1). C omments arguing that CAM provides no correlation to emissions are respon ded to at length in section 6 of Part III of this response to comments document. Briefly, CAM does not require a statistical correlation betw een indicator levels of control equipment operation and emissions; however, CAM does require aCAM RTC (Part III)

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demonstration based on, among other things, perform ance test data, that compliance with indicator levels will provide a rea sonable assurance of compliance with emission standards. Thus, commente rs are in error to

claim that there will be no correlation between CAM monitoring and

emissions.

EPA does not believe that section 110 somehow requi res that “enhanced monitoring” under section 114(a)(3) must be directl y correlated to emissions. Section 110(a)(1)(A) does require that the state plans include

“enforceable” emission standards. However, it is c ertainly not clear that use of the term “enforceable” here as anything to d o with monitoring much less “enhanced monitoring” under section 114(a)(3). Additionally, section 110(a)(2)(F) does specify that states must “correla te” emissions data that is collected with emissions limitations. Again, ho wever, it is unclear how a requirement specifying that a state shall correla te collected emissions data with emissions standards relates to a separate requirement for “enhanced monitoring.” Perhaps most telling with r egard to the relevance of section 110(a) to the meaning of section 114(a)( 3) is that an industry commenter cites it as support for its argument that nothing is intended “enhanced monitoring” other than compliance certifi cations based on performance tests.

As to the assertion that EPA has not met the requir ements in section 504(b), EPA would note that this rule is being prom ulgated under section 114 and not section 504(b). Nonetheless, EPA belie ves that CAM monitoring is designed to “provide sufficiently rel iable and timely information for determining compliance.” Part 64 r equires that the indicator levels for CAM monitoring be based perfor mance test results and other compliance-related information. See also sec tion 6 of this response to comments document.

Letter(s): American Lung Association et. al. (VI-D- 238); Clean Air Implementation

Project (VI-D-153); Clean Steel Coalition (VI-D-195 ); Institute of Clean Air Companies (VI-D-139); Natural Resources Defense Cou ncil (VI-D-151); Natural Resources Defense Council (VI-D-267 and 268 ); Pacific Gas Transmission Company (VI-D-230); S. Fitzsimmons (VI -D-201); Sierra Club, Lone Star Chapter (VI-D-242); The Fertilizer Institute (VI-D-145)

Comment b: One industry commenter argued that the d raft rule exceeds the statutory

mandate of the Clean Air Act Amendments. The comme nter argued thatCAM RTC (Part III)

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by making indicator ranges enforceable in and of th emselves, the current CAM draft exceeds the original intent of the CAM pr ogram to better identify when corrective actions needed to be taken . The commenter

also stated that it is also not clear that the cont rol technologies which served as the basis for the original underlying emi ssion limitations and standards can meet compliance with the shorter aver aging periods necessary to satisfy the CAM rule. The CAM rule th erefore creates new compliance obligations rather than serving as a veh icle to better achieve existing obligations, according to the commenter. Another commenter added that using CAM data and other information rep orted as indicators of a need for further investigation is all that is appropriate under Congress' intent to cure the Clean Air Act's general lack of ongoing monitoring of any

kind.

Response: The final rule does not include the provi sion cited by the commenter

concerning enforceable indicator ranges. In additi on, nothing in part 64 affects the averaging period associated with underl ying requirements. Thus, the Agency disagrees with these comments.

Letter(s): Can Manufacturers Institute (VI-D-181); Centerior Energy (VI-D-134)

Comment c: One commenter stated that the draft rule ignores Clean Air Act

procedures for making changes in state Title V perm it programs. The commenter stated that although the draft will requi re states to amend their Title V permit programs to implement part 64, the d raft rule ignores the proper procedure set forth in the Act and EPA's own implementing regulations by which EPA may bring about such chang es in state permit

programs.

Response: The Agency disagrees and has provided a f ull response to this concern in

responding to comments in Section 3.1.4 (Part III), above.

Letter(s): Marathon Oil Company (VI-D-185)

Comment d: Another commenter argued that section 11 4(a)(3) does not provide a legal

basis for the CAM proposal. The commenter stated t hat section 114(a)(3) cannot be used to justify changes to Titl e V permit program requirements. Section 114(a)(3) is codified with s tatutory provisions on EPA's general information gathering authority and n ot in Title V, indicating no congressional intent to affect Title V requireme nts, according to theCAM RTC (Part III)

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commenter. The commenter also argued that other st atutory provisions show that section 114(a)(3) is not intended to impa ct Title V. The commenter noted that section 114(b) allows but does not require states to develop investigative powers and programs similar t o those authorized for EPA whereas Title V programs are mandatory for stat es. The commenter also noted that section 114(a)(3) is to b e implemented by rule, and not by permit, within two years while Title V r ules are required in one year. The commenter went on to argue that section 114(a)(3) does not authorize EPA to develop new compliance methodologi es, and that nothing in the limited legislative history suggests that Congress intended section 114(a)(3) to authorize a program as sweepin g as CAM. The commenter stated that section 114 simply provides E PA with authority to compel performance testing according to the methods provided for in individual standards. Using section 114(a)(3) to r edefine compliance determination methods and to require additional mon itoring is contrary to section 114's long-understood meaning and cases, su ch as Portland

Cement Ass'n v. Ruckelshaus , which establish a relationship between standards and associated compliance methods, accord ing to the commenter. Finally, the commenter argued that Cong ress would not have refined SIP monitoring requirements under sect ion 110(a)(2)(F) in 1990 if section 114(a)(3) could be used for wholesa le redefinition of compliance methods. The commenter stated that the 1990 Amendments only adds the authority to request detailed complia nce certifications based on the results of source testing and suggested that the certification of test results satisfies the "enhanced monitoring" portion of 114(a)(3).

The commenter went on to state that Title V also do es not provide a legal basis for the CAM proposal because section 504(b) e stablishes that individual monitoring requirements must be develope d by rule and not in the context of individual permits.

Response: The Agency rejects the commenter’s crampe d reading of section

114(a)(3). Congress was not overly prescriptive wh en it required EPA to mandate “enhanced monitoring” for major sources. A ccordingly, a wide range of monitoring might well qualify as “enhanced ” including increased performance testing or an across-the-board requirem ent for continuous emission monitors. EPA believes that part 64 repre sents a reasonable, middle course to fulfilling the statutory requireme nt in section 114(a)(3) that the Agency promulgate rules on enhanced monito ring for all major stationary sources. The commenter’s argument regar ding the implied meaning of Congress’ amendment of section 110(a)(2) (F) for sectionCAM RTC (Part III)

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114(a)(3) is nothing more than speculation. It cer tainly is not controlling on how section 114(a)(3) must be implemented.

EPA also rejects the assertion that section 114(a)( 3) must be implemented by rule and cannot be implemented throu gh the Title V permit program. The part 64 requirements are estab lished by rule as required by section 114(a)(3), although the particu lar monitoring used to satisfy the part 64 requirements will be establishe d through the permit process. This is consistent with the statutory lan guage which requires EPA to "promulgate rules to provide guidance and to implement this paragraph . . ." (emphasis added). In addition, a Senate Committee Report on this provision stated that this "new auth ority will be implemented by EPA through regulations or implement ation plan and permit program requirements . . . " (See Senate Committee Report 101-228, p. 368 (1989).) Both the statutory langua ge and this legislative history indicate that it is appropriate for EPA to promulgate a rule containing general criteria requirements implemente d through the permit

process.

In addition, the Agency disagrees with the commente r's assertions concerning section 504(b). Section 504(b) and sect ion 114 are separate provisions addressing monitoring. If section 504(b ) is read as a limitation

on section 114, much of section 114's broad authori zation to EPA would

be read out of the statute.

Contrary to the commenter's suggestion, part 64 doe s not redefine compliance determination methods, as the specified compliance test method for a particular standard remains as the ben chmark for establishing compliance with that standard. The pa rt 64 rulemaking merely adds monitoring requirements for particular types of sources and emissions units. For the same reason, part 64 also does not change title V permit program requirements because the requireme nts in part 64 are independently applicable standards. Letter(s): Texas Title V Planning Committee (VI-D-1 88)CAM RTC (Part III)

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Section 14: Enforcement Concerns

Section 14.1: Effect on Existing Standards

Comment a: A number of commenters argued that part 64 would unlawfully increase

the stringency of existing emission standards. Sev eral commenters

stated that the focus of CAM has shifted from its o riginal concept of creating a monitoring regime to ensure proper opera tion and maintenance of emissions control devices in accordance with goo d engineering practices to imposing a requirement of determining continuous compliance with numerical emission limits. These c ommenters recommended that EPA amend the proposed rule to ret urn to the original focus of the CAM proposal. Some commenters pointed out that because many emission limitations or standards were establi shed based on limited

reference method test data, the nature of the refer ence method test, the frequency of testing, and the variability of operat ions were taken into account in developing the standards. Commenters as serted that changes in the method of compliance can affect a so urce's ability to comply with limits. Also, commenters stated that i t is highly probable that numerical limits will be exceeded 5-10 percent of t he time by a unit that is properly operated and maintained. One commenter ad ded that regardless of whether it was always intended that s tandards be complied with 100 percent of the time, as a matter of enviro nmental policy, if CAM is ever to help get a handle on inherent process/co ntrol variability, it must reward sources for efforts to record and respond to such occurrences rather than penalizing them. Another commenter sta ted that EPA’s attempt to link historical compliance practices bas ed on a single numerical emission limit with practices relating to the "good operation and maintenance" of pollution control equipment in fact changes the standard of compliance for existing emission limits.

Some commenters argued that EPA must comply with th e requirements of

sections 110, 111, 112, and 307 of the Act if it wa nts to increase the stringency of existing emission standards. These c ommenters also stated that it is unlawful for the Agency to use CA M as a back door to increase the stringency of existing standards. Oth er commenters asserted that increasing the stringency of existing standards would include any changes to the existing monitoring requirements , even if not used to determine compliance, but stated that the concern i s even greater if compliance determination issues (such as test metho ds or averaging times) will be impacted. One commenter stated that many standardsCAM RTC (Part III)

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were developed with only limited information, and t he new monitoring under CAM may detect deficiencies not contemplated when the standard was originally set. The commenter added that the a bility to comment effectively on these issues requires rule by rule r evisions. Some commenters cited to the Ajax paper included in the docket and various court decisions, including Amoco v. EPA , Portland Cement , and Donner

Hanna , to document how changing compliance-related proce dures can impermissibly increase the stringency of a standard

.

Commenters also argued that specific aspects of the CAM proposal would increase the stringency of existing standards. One commenter asserted that the draft rule subjects too many emission unit s to Subpart B requirements, and that the draft rule encourages St ates to impose Subpart B requirements on Subpart C sources and to establish indicator ranges as enforceable limits. This commenter also stated that the draft rule turns QIPs into liabilities and fails to provi de a shield from enforcement where a source fully meets its obligati ons under CAM. Taken together, the commenter concluded, these feat ures of the CAM

rule demonstrate EPA's intent to use CAM and the re lated credible evidence rule to increase the stringency of existin g emission standards.

Another commenter stated that the combined effect o f the following aspects of the draft rule lead to increased stringe ncy: (1) the ability of States to impose enforceable indicator ranges; (2) the use of a second QIP as a violation; (3) the requirement that indica tor ranges be set at levels that assure that emissions are always mainta ined below applicable requirements; (4) the lack of a CAM shield; and (5) the ability to bootstrap State-only monitoring requirements into federal req uirements under § 64.9(d). (Note: The details of these comments are included in the sections specifically addressing these issues.) An other commenter noted concerns about the averaging times associated with monitoring and standards, the fact that compliance testing is pres cribed although it does not establish the range over which an indicator mig ht vary while the unit is in compliance, and lack of a need for monitoring at certain units.

Some commenters raised objections to the draft rule provisions addressing quality improvement plans (QIPs). A com menter stated that the provisions of the rule that make the second tri gger of a QIP an enforceable violation makes standards more stringen t to the extent that the indicator range being monitored is tighter than the relevant limitation or standard. Two commenters stated that the string ency problem isCAM RTC (Part III)

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compounded by the 5 percent QIP trigger, since stan dards may have been set with an expectation of exceedances 5 or 10 percent of the time based on annual testing.

Some commenters noted additional factors that may r esult in increased stringency: (1) the rule provides States with discr etion to consider deviations to be violations; (2) all deviations mus t be included as "exceptions" to compliance in the certification, ev en if they are excused; (3) the rule requires many new enforceable requirem ents related to CAM to be included in permits; (4) the rule provides St ates with discretion, and even encourages them to make indicator ranges enfor ceable permit terms; and (5) most importantly, the decision to pr oceed with the credible evidence rule affects CAM's relationship to documen ting compliance. (See Section 14.2, below, for further comments on t he CAM/credible evidence relationship.) In supplementary comments following the promulgation of the CE rule, one of the commenters reiterated its concerns regarding changes in the way compliance is determined.

One commenter identified three possible solutions t o avoid the increased stringency problem. First, EPA could revise the ap plicable emission limits to move from a periodic compliance demonstra tion to a continuous compliance demonstration through appropriate notice and comment rulemaking, or at least provide a period of years t o allow for petitions for

reconsideration before the credible evidence rule w ould become effective. Second, the Agency could undertake a generic rulema king to establish a 30 day compliance period as a general presumptive a veraging period. Third, the Agency could provide explicitly that CAM data cannot be used as credible evidence, and allow owners or operators to opt in to CAM to

obtain this shield.

Response: The Agency disagrees that the final part 64 rule will affect the stringency

of any existing standards. Part 64 contains indepe ndent applicable monitoring requirements promulgated under the autho rity of section 114 and other provisions of the Act. Part 64 does not amend any existing emission standard. Rather, part 64 provides for th e collection of data relevant to compliance so that sources may make the required compliance certifications. The scope of the compli ance obligation will continue to be defined by the emission standard. T o the extent part 64 monitoring data pertain to periods when compliance is not required by the emission standard, those data cannot be used to pro ve noncompliance

with the standard.CAM RTC (Part III)

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Part 64 requires monitoring to provide a reasonable assurance of compliance with existing requirements; it does not change the method established in a particular standard as the complia nce test method for that standard. The reasonable assurance is provided by maintaining key parameters within operating ranges that reflect pro per operation and

maintenance of the control device, in accordance wi th applicable design properties, for minimizing emissions at least to th e levels required to achieve compliance. The final rule generally requi res the ranges to be set at least in part based on performance test data to establish an appropriate baseline for the specific unit; the ru le does not contemplate a statistical correlation of emissions and paramete rs across the whole range of potential emissions. See Section II.D.2. of the Final Rule

Preamble for further discussion. To the extent the commenters are claiming that the use of any data other than perfor mance test data to determine compliance modifies the compliance obliga tion, the commenters are attacking the credible evidence rule making not this one. As noted below, EPA disagrees with these criticisms of the CE rule.

In addition, the final rule contains other changes from the 1996 part 64

Draft that address the comments. First, the final rule does not discuss the State's independent authority to require that i ndicator ranges be established as enforceable permit terms. A State i s always free to establish that type of requirement using its indepe ndent authority to do so. Second, the final rule does not establish that a s econd QIP is an automatic permit violation, and does not include a required 5 percent trigger for a QIP. Third, the use of the term "dev iation" has been deleted and the final rule clarifies that part 64 excursion s are to be reported as "possible exceptions" to compliance in a compliance certification. Fourth, the applicability provisions have been clarified an d narrowed to focus only on units with control devices. Fifth, the provisio n concerning the use of State-only monitoring in § 64.9(d) of the 1996 part 64 Draft is no longer applicable with the removal of subpart C. These ch anges also respond to many of the comments.

There are several specific comments with which the Agency disagrees. First, the Agency disagrees that the promulgation o f the credible evidence rulemaking will in turn result in part 64 increasin g the stringency of existing emission limits. The Agency's reasoning for why th e stringency of a standard is not affected by the use of data other t han specified reference method test data to prove compliance or non-complia nce is discussed atCAM RTC (Part III)

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length in the preamble to the credible evidence rul emaking (see 62 FR 8314, February 24, 1997) and in the response to com ment document for that rulemaking (see Docket Item A-91-52-V-C-2).

Second, the Agency disagrees that because part 64 w ill add more conditions to a permit, part 64 will make existing standards more stringent. Part 64 is an independently applicable requirement promulgated pursuant to section 114 of the Act as well as other statutory provisions. As such, it is expected that a part 70 permit will include monitoring conditions that implement part 64 which may be in a ddition to the permittee's existing applicable monitoring requirem ents. Third, EPA disagrees with a concept of a CAM enforcement shiel d as discussed in Section 14.5 (Part III), below. Finally, the Agenc y disagrees with the argument that part 64 monitoring simply by adding m ore monitoring has increased the stringency of the underlying standard s. The Agency has previously used its section 114 authority, even bef ore the express enhanced monitoring authority under the 1990 Amendm ents, to require additional monitoring for an NSPS standard. (See 5 3 FR 50354, 50360, December 14, 1988, adding monitoring retroactively for Portland cement plants affected by 40 CFR Part 60, Subpart F.)

Because the Agency does not believe that part 64 wi ll affect the stringency of existing requirements, no response is necessary to the suggestions for how to avoid this concern.

Letter(s): Alyeska Pipeline Service Company (VI-D-1 26); American Petroleum

Institute (VI-D-146); Arizona Mining Association (V I-D-150); BP Oil Company (VI-D-113); Can Manufacturers Institute (VI -D-181); Chemical Manufacturers Association (VI-D-152); Cinergy Corp. (VI-D-141); CITGO Petroleum Corporation (VI-D-172); Clean Air Impleme ntation Project (VI-D-153); Coalition for Clean Air Implementation (VI-D-164); Colorado Association of Commerce and Industry (VI-D- 182); D uPont Engineering (VI-D-127); Eastman Chemical Company (VI-D-173); In dependent Liquid Terminals Association (VI-D-178); Kennecott Corpora tion (VI-D-119); Marathon Oil Company (VI-D-185); Mobil Corporation (VI-D-115); Mobil Corporation (VI-D-248); National Environmental Deve lopment Association (VI-D-169); Pennzoil Company (VI-D-133); Rubber Man ufacturers Association (VI-D-149); South Carolina Electric & G as Company (VI-D-116); Southern Company Services (VI-D-171); S pecialty Steel Industry of North America (VI-D-143); Steel Manufac turers Association (SMA) (VI-D-144); Texas Utilities Services, Inc. (V I-D-121); The Society ofCAM RTC (Part III)

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the Plastics Industry, Inc. (VI-D-148); Utility Air Regulatory Group (VI-D-140); Wisconsin Electric Power Company (VI-D- 130)

Comment b: Two commenters expressed concern about a specific emission limit

whose stringency would be increased by CAM. These commenters

stated that the NSPS for Electric Arc Furnaces and Argon-Oxygen Decarburization vessels (40 CFR Part 60, Subparts A A and AAa) set opacity standards at 3 percent to correlate with NS PS particulate standards of 0.0052 gr/dscf. The commenters stated that this standard essentially requires no visible emissions, complied with through Method 9 testing. The commenters note that some electric ar c furnace facilities are also required to install CEMS or COMS, and that und er the current proposal, such facilities would have to use these s ystems to comply with CAM and establish an indicator range for COMS monit oring. They stated that this would be difficult because the 3 percent "no visible emissions" standard does not have room for an indicator range to be established below the standard. In addition, the commenters po inted out that EPA has determined that all COMS have an inherent poten tial positive bias of 7.5 percent opacity, meaning that a source using a COMS could report a 7.5 percent opacity reading when the actual opacity was zero. The commenters explained that under CAM, this false rea ding could have to be reported as a deviation in a compliance certific ation, could trigger a QIP, and could be used as credible evidence of an e missions violation

where there was no actual violation.

Response: To address this comment, the final rule c larifies that an indicator range for

a COMS may be the same as the opacity standard esta blished for a pollutant-specific emissions unit where appropriate for meeting the general criteria in § 64.3(a)(2). The Agency does not believe this rulemaking is an appropriate forum for resolving co mmenter’s claims regarding potential COMS bias, and thus will not ad dress the substance of the commenters' claim that COMS generally have a po tential high bias of 7.5 percent opacity. However, the Agency does note that the issue of any potential high bias in readings from a COMS (or any other monitoring instrument) will be taken into account in evaluatin g monitoring reports and compliance certifications, and determining what fol low-up actions, if any, use appropriate (including the implementation of a QIP). It does not, however, affect the owner or operator's obligations to report measurements above the opacity standard (and part 6 4 indicator range, ifCAM RTC (Part III)

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applicable) as exceedances/excursions, even if the measurements are within the potential bias.

Letter(s): Specialty Steel Industry of North Americ a (VI-D-143); Steel Manufacturers

Association (SMA) (VI-D-144)

Section 14.2 Relationship of CAM and Credible Evid ence (CE) Rule

Comment a: A number of comments addressed the relat ionship between CAM and the

credible evidence rule, stating that the impact of the CAM rule on enforcement concerns cannot be fully determined wit hout consideration of the interaction of CAM with the proposed credible e vidence regulations. Some commenters stated that the preamble to the dra ft CAM rule and the discussion at the September 10, 1996 stakeholder me eting demonstrate

that the CAM rule and the credible evidence rule ar e inextricably

connected.

Commenters also recommended that, because one rule cannot be evaluated without considering the other, EPA should issue a new proposal that combines both rules for public comment. Some commenters stated that separating issues under the CE rule and CAM fo rces a bifurcated and

inefficient consideration of what are, in fact, lin ked elements. Two other commenters also expressed concern about the omissio n of the "credible evidence" portion of the proposal under the CAM rul e. The commenters stated that they recognize that these concerns may be allayed by the imminent publication of the CE rule as a separate d ocument, but one commenter added that EPA should better explain its enforcement strategy

under CE and CAM and in the context of the definiti on of "reasonable assurance of compliance." One commenter added that proposing and beginning implementation of CAM separate from the c redible evidence rule will result in the misinterpretation of CAM, c onfusion among the regulated community and permit writers, misguided a nd overly stringent monitoring proposals, and counterproductive challen ges to the program's contents. The commenter concluded that both progra ms will suffer from separate promulgation.

Response: In general, the above comments all state that the CE Revisions and the

CAM proposal are inextricably connected, impact eac h other, and should be proposed together in order for meaningful public comment from interested stakeholders. The Agency reviewed these comments butCAM RTC (Part III)

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decided to proceed with the CE rulemaking separatel y from this rulemaking for several reasons. First, the Agency decided to promulgate the CE Revisions separate from part 64 because the two programs are different in scope. The CE Revisions are not limited to part 64 data or information collected pursuant to a part 70 permit generally. Other types of CE could include information from mo nitoring that is not required by regulation (such as monitoring conducte d pursuant to a consent agreement or a specific section 114 request ) or information from inspections by the permitting authority. In additi on, the CE Revisions affect all sources regulated by 40 CFR parts 51, 52 , 60, and 61, not just sources who will be covered by 40 CFR part 64. Thu s, although sources covered by this rulemaking will be affected by the CE Revisions, both the sources covered by this rulemaking and the data gen erated by this rulemaking are a subset of the sources and potentia l credible evidence addressed in the CE Revisions. Therefore, it was a ppropriate for the Agency to promulgate these two rulemakings separate ly. See 62 FR 8314 for a discussion of the scope of the CE Revisi ons.

Second, the CE Revisions and this rulemaking did no t need to be promulgated together because these regulations have different statutory bases. The Agency promulgated the CE Revisions bas ed primarily on section 113(a) of the Act, which authorizes EPA to bring an administrative, civil or criminal action "on the basis of any infor mation available to the

Administrator." See 62 FR at 8320-23. The part 64 regulations, however, respond to the statutory mandates of the C AA Amendments of 1990, including but not limited to section 114(a)(3 ). Therefore, the statutory basis for these two rules are different, supporting their separate promulgation.

Finally, the Agency believes that there was suffici ent opportunity for all interested parties to comment on any perceived rela tionship or any substantive issues regarding the proposed credible evidence revisions and the CAM proposal before the promulgation of the CE Revisions in February, 1997, and the finalization of part 64. T he Agency released a public draft of the CAM approach in September, 1995 , and then conducted a public meeting in April, 1996, on the c redible evidence revisions. The Agency accepted public comments on the credible evidence rulemaking and the CAM proposal between Se ptember, 1995, and the promulgation of the CE Revisions. For exam ple, when EPA released the 1996 CAM draft it specifically asked c ommenters to assume that the CE revisions would be promulgated. Thus, all interested partiesCAM RTC (Part III)

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had the opportunity to comment on the two proposals and the Agency received numerous comments on this topic before the CE Revisions were promulgated.

In addition, there was also ample opportunity for p ublic comment on any perceived relationship after promulgation of the CE Revisions and before the finalization of part 64. The Agency released a public draft of the CAM approach in August, 1996, and held several public m eetings regarding the proposal. The Agency also reopened the comment per iod on Part 64 on April 25, 1997, (62 FR 20147) to allow for comments on the relationship between part 64 and the CE Revisions. Thus, all int erested stakeholders had the opportunity to comment on the relationship between part 64 and the CE Revisions before each of these rulemakings w ere promulgated.

Letter(s): American Petroleum Institute (VI-D-146); American Gas Association

(VI-D-154); American Electric Power (VI-D-129); Ame rican Public Power Association (VI-D-158); Centerior Energy (VI-D-134) ; Chemical Manufacturers Association (VI-D-152); Dow Chemical Company (VI-D-120); Eli Lilly Company (VI-D-124); Enron Ope rations Corp. (VI-D-235); State of Illinois EPA (VI-D-183); Indep endent Liquid Terminals Association (VI-D-178); Louisiana Mid-Continent Oi l and Gas Association (VI-D-184); Mobil Corporation (VI-D-115 ); Natural Gas Pipeline Company of America (VI-D-118); Ohio Chambe r of Commerce, et. al. (VI-D-160); Pennzoil Company (VI-D-133); Qu estar Corporation (VI-D-220); Southern California Gas Company (VI-D- 222); Specialty Steel Industry of North America (VI-D-143); Steel M anufacturers Association (SMA) (VI-D-144); Tennessee Valley Auth ority (VI-D-162); Texas Natural Resource Conservation Commission (VI- D-189); The Society of the Plastics Industry, Inc. (VI-D-148); Wellman, Inc. (VI-D-237)

Comment b: Two commenters stated that the separate promulgation of the credible

evidence rule and CAM results from the settlement i n the Sierra Club v.

Browner litigation. The commenters argued that the settle ment is procedurally flawed because it was not properly not iced for comment pursuant to section 113(g) of the Act, and therefor e, the deadlines

established in that settlement are unenforceable.

Response: Although the timing of the promulgation o f the CE Revisions and part 64

may result from the settlement in Sierra Club v. Br owner , the AgencyCAM RTC (Part III)

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promulgated the two regulations separately because they have different scopes and justifications as discussed above.

Letter(s): Cinergy Corp. (VI-D-141); Ohio Chamber o f Commerce, et. al. (VI-D-160)

Comment c: Several commenters recommended that EPA at least reconsider its

decision to finalize the credible evidence rule wit hout providing an opportunity for submitting meaningful comments on t he interaction of

credible evidence and CAM. One commenter added tha t without the benefit of simultaneously reviewing the draft CAM a nd credible evidence rules, it is impossible to effectively determine th e impacts of either rule.

Commenters also stated that States and other affect ed parties also cannot comment appropriately on the CAM rule. For example, one

commenter stated, it is unclear how EPA will reconc ile indicator range excursions with source operating conditions in the context of using the excursions as credible evidence. As another exampl e, commenters stated that it is not clear if EPA or a permitting authority could use an excursion from an indicator range, which is an enfo rceable permit term, as

evidence in an enforcement action under the credibl e evidence rule where

there has been no exceedance of an emission limit o r other applicable requirement. One commenter suggested that at the v ery least, the CAM public comment period should be extended two weeks beyond the release

of the final credible evidence revisions to allow c omment on the

enforcement of CAM.

Response: The Agency believes that both the 1996 pa rt 64 Draft and the preamble of

the CE Revisions published in the FR discussed in s ome detail the interaction of CE and CAM and the Agency’s enforcem ent policies with respect to these regulations. Therefore, stakehold ers were on notice of the Agency’s views on how these two rules relate to one another before the Agency reopened the comment period on part 64 o n April 25, 1997 (62 FR 20147) to allow for comments on the relation ship of part 64 and the recently promulgated credible evidence rule (62 FR 8314, February 24, 1997). The comments submitted during the reope ned comment period on this relationship are summarized and resp onded to elsewhere in

this document.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Chevron

Companies (VI-D-132); Cinergy Corp. (VI-D-141); Cle an Air Implementation Project (VI-D-153); Exxon Company, U SA (VI-D-135);CAM RTC (Part III)

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Mobil Corporation (VI-D-115); Natural Gas Pipeline Company of America (VI-D-118); NorAm Gas Transmission Company (VI-D-14 2); Ohio Chamber of Commerce, et. al. (VI-D-160); Pharmaceut ical Research and Manufacturers of America (VI-D-217); Southern Calif ornia Gas Company (VI-D-222); Virginia Power (VI-D-226)

Comment d: Some commenters recommended that the CAM rule expressly provide

that information generated under CAM plans is not c redible evidence for purposes of establishing a violation. Two commente rs stated that EPA should prevent the use of CAM data for enforcement actions or citizen suits unless the data demonstrates a violation of p ermit conditions. Two commenters explained that for parameter excursions to prove an emission limit violation the monitored parameter must be dir ectly related to the emission limit and the emission limit must have app lied at the operating

conditions at which the excursion occurred. One co mmenter noted that the CAM proposal states that, under the CE rule, EP A or the owner or operator will have the burden of proof that a viola tion has or has not occurred based on adequate information to support a predicted outcome of a compliance test. The commenter expressed conc ern that where "adequate information" is lacking the owner or oper ator will be required or forced to perform a compliance test to defend its p osition. Other commenters stated that using CAM data to indicate a need for testing would be appropriate while using the same data to d irectly prove a

violation would not be.

A commenter expressed concern about the tremendous increase in the amount of monitoring and recordkeeping that will be required by the CAM rule where the commenter lacks knowledge of how EPA will use this

information to determine if enforcement actions are needed under the CE

rule.

Response: Complete compliance with an approved part 64 monitoring plan does not

shield a source from enforcement actions for violat ions of applicable requirements of the Act if credible evidence proves violations of applicable emission limitations or standards. EPA expects tha t a unit that is operating within appropriately established indicato r ranges as part of approved monitoring will, in fact, be in compliance with its applicable limits. Part 64 does not prohibit the Agency, howe ver, from undertaking enforcement where appropriate (such as cases where the part 64 indicator ranges may have been set improperly and o ther data such asCAM RTC (Part III)

October 2, 1997 Page 310

information collected during an inspection provides clear evidence that enforcement action is warranted).

If a party (EPA, a state or local agency, or public citizens) brings an enforcement action to enforce applicable standards under the Act for a source covered by part 64, the party may be able to use CAM information

as credible evidence of a violation if the credible evidence satisfies the

criteria set forth in the CE Revisions -- that the evidence is relevant to whether the source would have been in compliance wi th applicable requirements if the appropriate performance or comp liance test had been performed.

Letter(s): American Gas Association (VI-D-154); Ame rican Automobile

Manufacturers Association (VI-D-157); Association o f Battery Recyclers (VI-D-155); Chemical Manufacturers Association (VI- D-258); Colorado Association of Commerce and Industry (VI-D-182); Co astal Corporation (VI-D-271); Hawaiian Electric Company, Inc. (VI-D-2 46); Occidental Chemical Corporation (VI-D-261); Pharmaceutical Res earch and Manufacturers of America (VI-D-217); Utility Air Re gulatory Group (VI-D-252); Wellman, Inc. (VI-D-237)

Comment e: Several commenters stated that the propo sal to use information

generated by CAM monitoring as credible evidence to demonstrate the existence of a violation is legally unfounded and w ould increase the stringency of many standards. Some commenters also stated that the credible evidence proposal, together with defining all CAM exceedances and excursions as deviations, improperly changes th e focus of CAM and raises the same stringency problems as the enhanced monitoring proposal. A commenter stated that minor improvemen ts in the CAM rule give little comfort to the regulated community in l ight of the CE rule's unauthorized alteration of underlying standards.

Two commenters argued that because CAM has the pote ntial to be used as credible evidence, CAM would increase the string ency of underlying rules by fundamentally altering the compliance dete rmination procedures

established in those rules. The commenters stated that a numerical

emission limit cannot be divorced from the methods of determining compliance, and included several references to supp ort this position.

The commenters also stated that because of the cred ible evidence rule, the draft CAM rule would impose continuous complian ce determinationCAM RTC (Part III)

October 2, 1997 Page 311

methods on sources that are currently only subject to periodic compliance testing. This type of change requires formal rulem aking for the applicable standard being affected. In addition, the use of C AM data for certifying compliance in light of the credible evidence rule w ill create substantial uncertainty for the certification program and impro perly expose managers to potential liability on inconclusive information.

A commenter stated that the proposed CAM and CE rul es will result in increased stringency of emission standards, increas ed compliance costs and administrative burdens, greater uncertainty reg arding what constitutes compliance, and increased liability regarding enfor cement actions and

citizen suits. The commenter noted that these burd ens will acutely affect utilities operating in areas of the country with al ready tightened emission

standards like California and the northeast. Anoth er commenter added that these increased costs are particularly unwarra nted in attainment

areas.

Response: The above comments all claim that the com bination of part 64 with the CE

rule will increase the stringency of emission limit ations because information generated under part 64 could be used f or enforcement of emission violations. The Agency disagrees with the se comments because the CE rule revisions are evidentiary rules that do not affect any underlying emission standards. As stated in the fi nal preamble to the CE rulemaking, the revisions do not increase the strin gency of any applicable requirement because “they maintain the focus of the compliance determination on whether or not the appropriate ref erence test would have shown a violation.” 62 FR at 8323. Monitoring und er part 64 will provide more data regarding compliance with emission standa rds; however, the collection of more compliance-related data has no e ffect on the stringency of the emission standard. The EPA also disagrees w ith commenters’ assertion that continuous compliance is not require d for many emission standards. Under the Act, its regulations, and th e case law, a source’s compliance with emission limitations must be contin uous (consistent with any averaging times) except where a particular emis sion standard specifically provides for periods of noncompliance. For a more detailed explanation of EPA’s position that the CE revisions do not increase the stringency of emission standards, see 62 FR at 8323 -8327.

Letters: American Public Power Association (VI-D-15 8); BP Oil Company

(VI-D-113); Colorado Association of Commerce and In dustry (VI-D-182); Council of Industrial Boiler Operators (VI-D-263); Hawaiian ElectricCAM RTC (Part III)

October 2, 1997 Page 312

Company, Inc. (VI-D-246); Independent Liquid Termin als Association (VI-D-178); Mobil Corporation (VI-D-115); Ohio Cham ber of Commerce, et. al. (VI-D-160); Rubber Manufacturers Associatio n (VI-D-149); South Carolina Electric & Gas Company (VI-D-116); Special ty Steel Industry of North America (VI-D-143); Steel Manufacturers Assoc iation (SMA) (VI-D-144); Utility Air Regulatory Group (VI-D-252) ; Utility Air Regulatory Group (VI-D-140)

Comment f: Another commenter noted that EPA has ind icated that credible evidence

generated by part 64 may not by itself be sufficien t to prove a violation of an emission standard. The commenter expressed supp ort for this

statement. As an illustration, the commenter state d that when a parameter goes outside a range, it does not demonst rate noncompliance; it means only that compliance is not demonstrated, even though the unit may actually be in compliance. The commenter expre ssed a desire to see the same position adopted in the credible evide nce rulemaking, and noted that it is not really possible to separate th e two rulemakings as EPA

desires.

Response: The commenter’s statement that informatio n generated by part 64 may

not by itself be sufficient to prove a violation of an emission standard is correct. As stated by the Agency in the preamble to the final rule, while staying within appropriately established indicator ranges gives a reasonable assurance of compliance, excursions from a source’s indicator ranges does not necessarily indicate noncompliance. The Agency may investigate such excursions for possible violations and may use any credible evidence, which may include part 64 inform ation, to prove any

violation of an emission standard.

Letter(s): Dow Chemical Company (VI-D-120)

Comment g: An environmental organization argued tha t the 1996 part 64 Draft fails to

do what Congress intended since it does not require monitoring that will produce data that can be considered credible eviden ce of emission limit

violations.

Response: Although the final part 64 does not requi re monitoring that will produce

data statistically correlated to emission limitatio ns, the Agency believes that the final part 64 does comply with section 114 (a)(3)’s requirementsCAM RTC (Part III)

October 2, 1997 Page 313

concerning enhanced monitoring and compliance certi fication. In addition, information collected under part 64 may, in many circumstances,

constitute credible evidence on the issue of whethe r a source is complying

with emission limitations.

Letter(s): Natural Resources Defense Council (VI-D- 244)

Comment h: Commenters requested EPA to clarify if t he intent of part 64 is to

encourage good maintenance of air pollution control equipment or to use monitoring data directly for enforcement purposes. If the latter, one commenter stated, EPA should propose the CAM and CE rules together. Another commenter added that using CAM information pursuant to the

credible evidence rule would result in an "un-level playing field" since different sources subject to the same standard will have different methods of demonstrating compliance. This commenter stated that this use of

CAM information is unfair because it converts CAM f rom a rule that facilitates compliance through the generation of in formation indicative of compliance to a rule that facilitates enforcement.

Response: As stated in the final preamble to part 6 4, the purpose of this rule is to

document continued operation of the control measure s within ranges of specified indicators of performance that are design ed to provide a reasonable assurance of compliance with all applica ble requirements. Thus, the purpose of this rule is facilitate compli ance with applicable requirements not to specifically facilitate enforce ment. This does not mean, however, that the information obtained from p art 64 cannot be used for enforcement purposes if it is credible evi dence of a source’s noncompliance with applicable requirements.

Letter(s): Integrated Waste Services Association (V I-D-147); Pharmaceutical

Research and Manufacturers of America (VI-D-217); T exas Natural Resource Conservation Commission (VI-D-256)

Comment i: One commenter stated that credible evide nce should apply to all of the

monitoring requirements included by a State in a Ti tle V permit, since any requirements would be based on either State require ments or CAM requirements and would therefore be within the real m of the CAM rule and EPA's intent to treat information generated by CAM monitoring as credible

evidence.CAM RTC (Part III)

October 2, 1997 Page 314

Response: The credible evidence rule does apply to any monitoring included in the

permit as well as any other information that may be come available.

Letter(s): State of Illinois EPA (VI-D-183)

Comment j: One commenter stated that CAM data shoul d be understood to be fairly

indicative of the potential credible evidence avail able to be used in compliance determinations. Likewise, compliance wit h a CAM plan should be considered compliance with the underlying emissi on limits, thereby providing a "CAM shield."

Response: The Agency agrees that part 64 data will be fairly indicative of the

potential credible evidence available because it wi ll encompass much of the monitoring contained in a part 70 permit. Howe ver, the extent to which part 64 data will constitute sufficiently cre dible evidence to prove compliance or non-compliance in an enforcement acti on will require a case-by-case evaluation. Finally, see Section I.E. of the preamble to the final rule for a discussion of why EPA disagrees wi th the concept of an enforcement shield in the context of part 64.

Letter(s): American Municipal Power - Ohio (VI-D-15 9)

Section 14.3: Purpose of CAM and its Role in Enfor cement

Comment a: Several commenters argued that the draft proposal reflects a shift toward

a more enforcement-oriented approach for CAM. Some commenters stated that the CAM rule, contrary to its stated in tent, creates many enforcement issues. One commenter expressed concer n that the emphasis of the CAM rule had shifted from complianc e assurance to creation of enforcement opportunities and that enfo rcement actions may

not be limited to situations where there is real, s ignificant noncompliance. A commenter explained that bad actors will still h ide their deeds from the agency while those acting in good faith will now be subjected to extensive review of huge amounts of data. Commenters also s tated that the original approach held out the opportunity for a tr uly reinvented, common sense approach, but the 1996 part 64 draft appeared to favor the

traditional, command and control, enforcement orien ted approach. Another commenter recommended that EPA use CAM to p rovide a positive inducement for compliance, rather than foc using on the ability toCAM RTC (Part III)

October 2, 1997 Page 315

punish sources that are attempting to meet extremel y difficult and sometimes impossible compliance requirements.

Some commenters stated that when CAM was originally devised, it was

based on the idea that the interests of all stakeho lders would be best served by a system that provided a reasonable assur ance of compliance through monitoring that was indicative of complianc e. According to these commenters, the revised CAM draft moved back to the enforcement orientation of the proposed EM rule and subjected s ources to multiple new enforceable requirements related to the development and implementation of CAM plans. Commenters noted several examples: ( 1) the ability of permitting authorities to make parametric levels in dependently enforceable; (2) implementation of a QIP more than once during a permit term constituting a violation of CAM; (3) omission of the draft "deviation" definition in part 70 would allow permitting author ities to make deviations new, separately enforceable requirements; (4) requi ring numerous CAM plan elements to be included in Part 70 permits as enforceable requirements; (5) CAM development and implementatio n requirements constituting separately enforceable requirements (s uch as submitting a justification for proposed monitoring) and (6) the statement in the preamble to the revised CAM draft that information generated by CAM monitoring may be used as "credible evidence" to sh ow the existence of a violation either in Agency enforcement actions or c itizen suits. Another commenter added that the multiplicity of new requir ements significantly increases the risk of enforcement where no underlyi ng requirement has been violated and without providing any benefit to the environment.

Response: The Agency believes that the final rule, including the revised general

criteria language in § 64.3(a), properly reflects t he CAM approach of providing a reasonable assurance of compliance by d ocumenting that a pollutant-specific emissions unit is operated and m aintained so as to remain in compliance across its anticipated operati ng conditions. Many of the specific comments have been addressed in the final rule and in response to comments under Section 14.1 (Part III), above. However, as noted in that section, part 64 is an independent ap plicable requirement, and as such will result in some independently enfor ceable requirements, such as an obligation to submit the appropriate rat ionale to support proposed monitoring. In response to comments on th e 1996 part 64 Draft, the Agency has attempted to limit these type s of requirements to those which the Agency believes are essential to ef fective implementation of part 64. Comments related to credible evidence have been discussedCAM RTC (Part III)

October 2, 1997 Page 316

in Section I.E. of the Final Rule Preamble and Sect ion 14.2 (Part III),

above.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Association

of Battery Recyclers (VI-D-155); Centerior Energy ( VI-D-134); Chemical Manufacturers Association (VI-D-152); Chevron Compa nies (VI-D-132); Clean Air Implementation Project (VI-D-153); Coasta l Corporation (VI-D-271); Electronic Industries Association (VI-D -137); Independent Liquid Terminals Association (VI-D-178); Mobil Corp oration (VI-D-115); Ohio Chamber of Commerce, et. al. (VI-D-160); Pharm aceutical Research and Manufacturers of America (VI-D-217)

Comment b: One commenter stated that because of the credible evidence rule, the

requirement to develop new continuous compliance me thods under CAM,

and the definition of CAM excursions as deviations and exceptions to compliance, the rule creates the ability for partie s to allege violations through CAM. The commenter stated that although EP A states that it or anyone else seeking to use credible evidence will c arry the burden of proof, that requirement is undone by the fact that CAM requires indicator ranges to be established during tests. According t o the commenter, the

burden will shift back to the source to document wh y subsequent data

should not be considered consistent with the relati onship initially

established.

Response: The Agency disagrees that part 64 establi shes new continuous

compliance methods. Part 64 requires monitoring to provide a reasonable assurance of compliance with existing re quirements; it does not change the method established in a particular s tandard as the compliance test method for that standard. The reas onable assurance is provided by maintaining key parameters within opera ting ranges that reflect proper operation and maintenance of the con trol device, in accordance with applicable design properties, for m inimizing emissions at least to the levels required to achieve compliance. The final rule generally requires the ranges to be set at least in part based on performance test data to establish an appropriate b aseline for the specific unit; the rule does not contemplate a statistical c orrelation of emissions and parameters across the whole range of potential emissions. See

Section II.D.2. of the Final Rule Preamble for furt her discussion.

Letter(s): Mobil Corporation (VI-D-115); Mobil Corp oration (VI-D-248)CAM RTC (Part III)

October 2, 1997 Page 317

Comment c: Another commenter added that the extensi ve review a responsible official

will need to do to certify compliance in light of t he CE rule seems contrary

to the 5th amendment.

Response: Reporting and compliance certification re quirements such as imposed by

Part 70 do not implicate the Fifth Amendment. See United States v.

Ward , 448 U.S. 916 (1980).

Letter(s): Coastal Corporation (VI-D-271)

Comment d: One commenter stated that its experience has been that EPA

enforcement guidance are not relied on and enforcem ent policy is therefore unpredictable. The commenter asserted tha t sources are, in effect, guilty until proven innocent. Thus, the co mmenter recommended, EPA should convert its current enforcement guidelin es to regulation so that all parties understand what constitutes compli ance in terms of monitoring availability and adherence to emission s tandards.

Response: These comments are beyond the scope of th is rulemaking and will not be

addressed in this response to comments.

Letter(s): Public Service Company of Colorado (VI-D -219)

Comment e: Another commenter stated that the enforc ement aspects of the rule create

uncertainty; for example, the decision to issue not ices of violations for indicator range deviations will become a subjective decision by individual inspectors or enforcement agencies. A second comme nter suggested that EPA clarify what effect existing federal and S tate compliance enforcement policies will have on the designation o f exceedances. A state agency recommended reducing uncertainty by al lowing permitting

authorities to define which CAM data are considered credible evidence.

Another commenter recommended that the CAM rule imp ose only two applicable requirements in order to reduce enforcem ent concerns: the obligation to have a CAM plan and the requirement t o report deviations. The commenter noted that this would also simplify t he permit modification process since CAM plan changes would not require pe rmit changes.CAM RTC (Part III)

October 2, 1997 Page 318

Response: Because the final part 64 rule does not r equire that monitoring provide the

degree of certainty that would have been provided b y enhanced monitoring proposed in 1993, EPA recognizes that th e interpretation of data for potential use in an enforcement action wil l be subject to some degree of uncertainty. However, the Agency believe s that the standards included in the final CE rulemaking for what consti tutes credible evidence clarify adequately the degree of certainty required before non-reference test method data, including part 64 data, can be us ed to determine the

existence of a violation.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Coalition for

Clean Air Implementation (VI-D-249); DuPont Enginee ring (VI-D-127); Texas Natural Resource Conservation Commission (VI- D-256); Virginia Power (VI-D-226)

Comment f: Commenters also argued that the enforcem ent aspects of the draft CAM

rule create disincentives for developing strong CAM plans with indicator ranges below emission limits. One commenter stated that although States have the power to be more stringent, EPA sho uld discourage this approach. According to this commenter, penalizing d eviations will result in sources proposing as little monitoring as possible and setting indicator ranges at the same level as emission standards, whi ch frustrates the goals of gaining more information about and reducin g emissions. Other commenters stated that the potential that CAM data could be used as credible evidence provides disincentives for source s to perform more than the minimum monitoring and to bring possible proble ms to EPA's attention. A commenter stated that a focus on opti mizing control performance rather than enforcement would encourage sources to set more ambitious indicator ranges and ease negotiatio ns between sources and states. Another commenter predicted that the p ressure placed on negotiations over part 64 monitoring by the CE rule could strangle the federal operating permits program in many states.

In addition to comments stating that CE encourages sources to do the minimum amount of monitoring under CAM, some commen ters argued that without an enforcement shield, the type of mon itoring used will be racheted up because of the relationship between the two rules. A commenter argued that the CE rule pushes sources to ward CAM protocols that are comparable to reference methods for actively controlledCAM RTC (Part III)

October 2, 1997 Page 319

units and units without active controls. Another c ommenter stated that permitting authorities will negotiate CAM elements with the gathering of

credible evidence in mind while sources will seek t o develop CAM plans that do not produce credible evidence. However, an other commenter stated that the potential for enforcement creates a disincentive for sources to directly monitor levels of emissions. The comme nter reasoned that,

because the credible evidence rule would allow for enforcement based on CAM data, sources would have a strong incentive to monitor only parameters which could not be correlated with emiss ions. One commenter stated that the rule generally seems to e mphasize the enforcement consequences of excursions from indicat or ranges. According to this commenter, the source has the bur den of assuring compliance and should be provided incentives to gen erate improved monitoring without the fear of automatic presumptio ns of noncompliance.

Similarly, several commenters stated that because o f the enforcement consequences associated with QIPs, terms included i n permits, the

credible evidence rule, and similar concerns, sourc es will design CAM plans to minimize potential liability. These commen ters pointed out that this is contrary to the original CAM objective of e ncouraging sources to set lower indicator ranges, which would provide early w arning of potential operation and maintenance problems. One commenter added that the proper result could be achieved by making two chang es in the draft rule: exceedances of indicator ranges should never be a v iolation, and there

should be no enforcement liabilities associated wit h QIPs except for failure to carry them out. Another commenter added that the current draft

of the CAM rule will result in more emissions to th e atmosphere than it would if it did not provide a disincentive for sett ing indicator ranges well

below the emissions limitations or standards. A co mmenter stated that enforcement aspects of the draft rule will inevitab ly lead to conflicts between permit writers and owner/operators seeking indicator ranges as close as possible to emission limits. Another comm enter argued that sources should not be penalized for good faith mist akes, and those who are ready, willing and able to comply must be given clear guidance as to what compliance entails. This commenter concluded t hat there should be

no unfunded increase in State burdens or additional impacts on sources

without commensurate emission benefits.

One commenter stated that EPA's stated goals for th e CAM rule would be better served by relying on corrective action rathe r than creating enforcement opportunities. A second commenter argu ed that even ifCAM RTC (Part III)

October 2, 1997 Page 320

EPA itself does not bring enforcement action based on CAM excursions,

or sources have certain defenses available, enforce ment aspects frustrate the stated goals of CAM because sources tend to set tle faced with litigation costs or permit agency enmity.

In contrast, one commenter stated that CAM simply r esults in information and although the use of that information may raise enforcement concerns, the proper use of CAM data is to assure compliance, a use that does not

raise enforcement concerns. This commenter also st ated that the credible evidence rule is a discrete program with s eparate concerns, and that proper quality improvement planning should obv iate the need for

enforcement action in most instances.

Response: The Agency disagrees that the potential e nforcement consequences

related to part 64 data will alter significantly th e use of part 64 data to improve control performance. Section 64.3 of the f inal rule describes the minimum criteria for monitoring under part 64. The Agency believes that if a source meets these criteria, the monitoring wi ll be adequate to provide a reasonable assurance of compliance. In addition, the Agency cannot expect that the majority of sources would go beyond the minimum requirements even if, for the sake of argument, no enforcement consequences existed at all. However, given that e xceedances and excursions must be reported and considered in compl iance certifications, EPA anticipates that prudent owners or operators wi ll establish internal operating ranges as early warning signals to avoid excursions or exceedances. The Agency believes that this system of establishing separate ranges for regulatory and internal purpose s fulfills the goals of CAM and will focus review of reported data on those situations for which compliance oversight may be warranted. This approa ch also reduces the unwarranted paperwork burdens that would be associa ted with EPA encouraging sources to set more stringent indicator ranges that may

involve an increase in the number of false indicati ons of control device problems that would have to be recorded and reporte d.

Letter(s): American Gas Association (VI-D-255); Ame rican Petroleum Institute

(VI-D-146); Association of Battery Recyclers (VI-D- 155); Can Manufacturers Institute (VI-D-181); Can Manufacture rs Institute (VI-D-262); Chemical Manufacturers Association (VI- D-152); Clean Air Implementation Project (VI-D-153); Coalition for Cl ean Air Implementation (VI-D-249); Coastal Corporation (VI-D-271); DuPont Engineering (VI-D-127); El Paso Energy Corporation (VI-D-257); Gas ProcessorsCAM RTC (Part III)

October 2, 1997 Page 321

Association (VI-D-163); Institute of Clean Air Comp anies (VI-D-139); National Environmental Defense Association (VI-D-16 9); Pharmaceutical Research and Manufacturers of America (VI-D-217); State of Washington, Department of Ecology (VI-D-167); Texas Natural Resource Conservation Commission (VI-D-189); Texas Title V P lanning Committee (VI-D-188); UCAR Carbon Company (VI-D-122); Utility Air Regulatory Group (VI-D-252)

Section 14.4: Effectiveness of CAM Information for Enforcement

Comment a: Some commenters stated that they object to the draft proposal’s efforts to

link control device performance with emission limit ations. Two

commenters asserted that much of the burden of CAM plan development will result from provisions (such as § 64.8(b)) req uiring an applicant to demonstrate a relationship between the selected con trol device parameter(s) and the underlying emission rate. The se commenters added that EPA's statements that parameter "discrep ancies" can be used as a basis for enforcing underlying emission limits are based on the questionable assumption that there is a well-define d relationship between control device parameters and pollutant emission ra tes. One commenter recommended that the final rule confirm that no pre sumptions apply to the credibility of CAM data since this information coul d be given undue weight by states and courts. Commenters also stated that a relationship between control device parameters and the underlyin g emission rate does not need to be established to meet the CAM goal of establishing parameters that define good control device O&M. Co mmenters also stated that the parameter monitoring could serve as a indicator for further investigation and corrective action, but that it is inadequate to support

actual enforcement.

Response: The reasons for relying on performance te sting to assist in establishing

appropriate site-specific indicator ranges is discu ssed in section 8 (Part III), above. Part 64 does not create any presumpti on about the value of data from part 64 monitoring as potential credible evidence to prove a violation of an emission limit. As noted in the pr eamble to the final CE rule, any excursions from part 64 indicator ranges will have to be evaluated on a case-by-case basis (see 62 FR 8314, February 24, 1997).CAM RTC (Part III)

October 2, 1997 Page 322

Letter(s): ASARCO Incorporated (VI-D-187); Coalitio n for Clean Air Implementation

(VI-D-164); Gas Processors Association (VI-D-163); Kennecott Corporation (VI-D-119); The Society of the Plastics Industry, Inc. (VI-D-250); Texas Title V Planning Committee (VI-D- 188)

Comment b: A number of commenters noted EPA's state ment in a letter from John

Seitz dated June 3, 1996 that data from CAM plans w ill be one of the primary forms of "credible evidence" used in federa l enforcement actions.

One commenter asserted that the CAM draft must be r evised to require a closer link between monitored parameters and actual emissions in order for CAM plan data to be a valid form of "credible e vidence" for use in

enforcement actions.

Response: The referenced letter made this observati on because the monitoring

under part 64 will encompass all of the required mo nitoring for many

emissions units with control devices. The letter w as not intended to indicate that all part 64 monitoring data would con stitute credible evidence in a particular circumstance. The Agency's positio n on the correlation issue is discussed in section 8 (Part III), above, and in Section II.D.2. of the preamble to the final rule.

Letter(s): Coastal Corporation (VI-D-271); El Paso Energy Corporation (VI-D-257);

NESCAUM (VI-D-192)

Comment c: State and local agency commenters stated that the draft CAM rule does

not provide an enforcement nexus with data collecte d. The commenters pointed out that permitting authorities need the ab ility to follow up as necessary to remedy compliance problems that are de tected by CAM measures and requirements. An association of state and local authorities suggested a scheme for categorizing sources accordi ng to the type of monitoring used and specified enforceable terms to be included in permits for each type. Similarly, agencies recommended tha t the CAM rule establish that State and local agencies have the au thority to enforce all elements of operating permits within their jurisdic tions. The commenters noted that the draft proposed rule considers and su pports State agency enforcement of existing permit conditions as well a s those to be added by CAM, but expressed the belief that EPA must make it explicitly clear that State and local agencies have both the power and di scretion to enforce all operating permit elements within those agencies' ju risdiction.CAM RTC (Part III)

October 2, 1997 Page 323

Response: The Agency disagrees that the rule does n ot provide an appropriate

enforcement nexus with the data collected. First, if sources fail to respond appropriately to reported excursions, that failure would constitute a violation of part 64. In addition, under the CE rule, a reported exceedance or excursion can be used to prove a viol ation of a condition of the permit if the burdens of proof associated with that use of the data are met. Finally, a permitting authority may establish an indicator range as an enforceable condition of the permit consistent w ith its independent authority to assure compliance with the permit (see , e.g. , 40 CFR 70.6(a)(1))

Letter(s): City of Jacksonville AWQD (VI-D-272); St ate of Illinois EPA (VI-D-183);

Missouri Department of Natural Resources (VI-D-260) ; STAPPA/ALAPCO (VI-D-179); STAPPA/ALAPCO (VI-D-274)

Comment d: Some commenters argued that the draft CA M proposal would restrict

citizens' right to know about and enforce emission standards. Commenters stated that operating permits and report s will not contain accurate emissions and compliance information, and that qualified opinion statements by owners and parameter data will not en able citizens to know

about emissions and enforce emission standards. Co mmenters also stated that by requiring only monitoring of paramet ers not correlated with emissions, CAM does not provide the public with inf ormation about the number of people potentially exposed to air polluta nts or the level of pollutants to which they have been exposed. Simila rly, an environmental group argued that the draft CAM rule does not gener ate the kind of information contemplated by Congress. The commente r stated that the legislative history indicates that Congress intende d the Act to produce

certifications and data that facilitate enforcement . This commenter noted that the Senate Report compares the monitoring and certification requirements to those of the Clean Water Act, which require sources to monitor their actual discharges; however, the CAM r ule fails to require sources to gather similar data. The commenter adde d that the Senate Report also states that compliance certification an d emissions data will facilitate enforcement since they can be used as ev idence, but the draft

CAM rule would not facilitate enforcement, since ev en gross exceedances of CAM plan ranges will not establish a violation o f emissions standards.CAM RTC (Part III)

October 2, 1997 Page 324

Response: The Agency has previously responded to ce rtain of these comments

directly in a letter from John Seitz (dated April 1 7, 1997) to various concerned parties (see Docket Item A-91-52-VI-C-17) . With respect to "right to know" concerns, the Agency remained commi tted to its stated goals of providing all citizens with information ab out emissions to the environment. The Agency uses several tools to reac h that goal, including the toxic release inventory, emission statements re quired under title I of

the Act, emission estimates used to establish title V permit fees, and compliance monitoring data. In all these situation s, however, the Agency must balance the cost of recordkeeping and reportin g with the usefulness of the data for compliance assessment and the publi c's right to know. The Agency believes that in the context of a broadl y applicable monitoring rule, the final part 64 rule properly balances thos e considerations.

The EPA does not agree that part 64 is inconsistent with the legislative history for section 114(a)(3). The Senate Report c ited by the commenter noted that data submitted under section 114(a)(3) c ould be used for enforcement purposes as are data submitted under th e reporting requirements of the Clean Water Act. Although the monitoring under part 64 will, at times, differ from the type of monitori ng required under the Clean Water Act, data gathered under part 64 will b e available for enforcement purposes.

Letter(s): American Lung Association et. al. (VI-D- 238); Clean Steel Coalition

(VI-D-195); Institute of Clean Air Companies (VI-D- 139); Natural Resources Defense Council (VI-D-151); Natural Resou rces Defense Council (VI-D-267 and 268); Sierra Club, Lone Star Chapter (VI-D-242)

Section 14.5: CAM Shield

Comment a: Several commenters recommended that the CAM rule provide a shield

that would protect a source fully complying with CA M from enforcement of

emission limitations or standards. One commenter a rgued that the availability of a CAM shield could encourage owners and operators to voluntarily subject additional emission units to th e CAM requirements, which would further the original CAM concept of enc ouraging sources to obtain additional monitoring data to help ensure pr oper operation and

maintenance. Other commenters stated that the fail ure to offer a shield against enforcement under the credible evidence rul e to sources in compliance with a CAM plan aggravates concerns rela ting to theCAM RTC (Part III)

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interaction of the CAM rule and the credible eviden ce rule including the disincentive for establishing indicators below emis sion limits. Commenters also stated that without a CAM shield, t his interaction allows CAM improperly to have it both ways: deviations fr om established indicator ranges can be used as credible evidence, but there is no protection for sources that stay within their range s. A commenter added that a source that is complying with its CAM obliga tions, including any QIP obligations, should not be subject to an enforcemen t action unless the

source has failed a reference method test.

A commenter asserted that the rule requires sources to set indicator ranges at levels below the emission limits and that , therefore, sources that comply with the rigorous CAM monitoring requirement s should be

shielded from additional enforcement actions. One commenter stated that compliance with a CAM plan should be considere d compliance with the underlying emission limits. Another commenter asserted that if the goal of CAM is to require corrective action in resp onse to problems with control device performance, then proper monitoring and corrective action should shield a source from allegations of noncompl iance, because the trigger for corrective action in the absence of com pliance method data does not necessarily indicate a violation. Finally , one commenter reasoned that compliance with a good CAM will precl ude the existence of other factors indicating non-compliance and EPA, th erefore, would sacrifice no enforcement opportunities by providing a shield. The

commenter also viewed the lack of a shield as an in dication that EPA retains the right to reject previously accepted par t 64 monitoring at any

time, and stated that this is unfair and creates un certainty. Another commenter agreed that the approach deprives sources of fair notice as to what is required of them.

Some commenters made specific suggestions for a CAM shield. One commenter recommended that industry should earn CAM shields by providing data that establishes the relationship be tween monitored parameters and actual emissions. Sources that could demonstrate such a relationship through a methodology approved by EP A or the state would not be given the protection of the shield. Accordi ng to the commenter, this approach is preferable to the current CAM shie ld proposal, which places the burden of determining the adequacy of a proposed CAM plan on permitting authorities. Some commenters expressed support for a shield that would prevent the use of CAM data for c itizen suits or any federal enforcement action, including notices of vi olations and fines,CAM RTC (Part III)

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unless the source had violated the permit condition s implementing the CAM plan. According to these commenters, such a sh ield would be necessary for the CAM rule to remain consistent wit h its goals of promoting good O&M of control devices and technique s. A commenter explained that the Agency should provide a shield t hat recognizes that CAM is designed to accomplish quicker problem ident ification and resolution and the data are suited only for that pu rpose. Another commenter recommended allowing permitting authoriti es to provide

limited exclusions on the use of CAM data for enfor cement based on a percent of time or conditions such as startup, shut down or malfunction. Two commenters added that if EPA or a citizen group wanted to bring an action against a source that was in compliance with its CAM plan, they should have the burden of demonstrating that the CA M plan was insufficient, that the source knew the plan was ins ufficient, and that a

reference test would have shown an emissions violat ion if it had been

conducted. A commenter stated that if a source experiences a m ajor excursion or exceedance while operating in good faith under a QI P (as indicated by factors such as prompt action and notification), th e rule should provide some shield from agency enforcement action and citi zens suits. The commenter recommended that if this subject cannot b e addressed in the CAM rule, it should be addressed in the CE rule. A nother commenter stated generally that a source should be shielded f rom credible evidence rule enforcement if the source is operating under a QIP.

Response: See Section I.E. of the Final Rule Preamb le for a discussion of why EPA

disagrees with the concept of an enforcement shield in the context of part

64.

Letter(s): American Gas Association (VI-D-255); Ame rican Municipal Power - Ohio

(VI-D-159); American Petroleum Institute (VI-D-146) ; BP Oil Company (VI-D-113); Can Manufacturers Institute (VI-D-262); Chemical Manufacturers Association (VI-D-152); Chevron Compa nies (VI-D-132); Clean Air Implementation Project (VI-D-153); Coalit ion for Clean Air Implementation (VI-D-164); Coalition for Clean Air Implementation (VI-D-249); Coastal Corporation (VI-D-123); Coastal Corporation (VI-D-249); Colorado Association of Commerce and In dustry (VI-D-182); El Paso Energy Corporation (VI-D-257); Fertilizer I nstitute (VI-D-253); Integrated Waste Services Association (VI-D-147); Q uestar Corporation (VI-D-220); State of New Jersey Dept. of Environmen tal Protection (VI-D-215); Specialty Steel Industry of North Ameri ca (VI-D-143); SteelCAM RTC (Part III)

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Manufacturers Association (SMA) (VI-D-144); Texas T itle V Planning Committee (VI-D-188); The Society of the Plastics I ndustry, Inc. (VI-D-250); Utility Air Regulatory Group (VI-D-252)

Comment b: One commenter suggested that a source th at voluntarily develops part 64

monitoring that provides an extra margin of protect ion is voluntarily reporting more than it is required to and should ge t the protection offered by EPA's audit policy.

Response: If an owner or operator voluntarily estab lishes an indicator range that

more than satisfies the minimum requirements of par t 64, and includes that range as the range which triggers the reportin g and corrective action requirements of part 64, the information reported w ould be required information, and thus the audit policy would not ap ply. Letter(s): American Gas Association (VI-D-255)

Section 14.6: Miscellaneous

Comment a: One commenter recommended revising the C AM rule so that it applies

only to approved local programs. According to this commenter, this change would be necessary to prevent local governme nts from using CAM as nothing more than a local revenue enhancing mechanism.

Response: The Agency is uncertain as to what the co mmenter meant by this

comment. However, in accordance with part 70, all permitting authorities have been required to demonstrate the authority to implement any enhanced monitoring regulations promulgated under t he Act, and EPA will assure that all permitting authorities implement pa rt 64 so that at least the minimum monitoring necessary to satisfy part 64 is adopted. In addition, a permitting authority may require more stringent m onitoring than necessary to satisfy part 64, using its independent authority.

Letter(s): Southern Company Services (VI-D-171)CAM RTC (Part III)

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Section 15: Procedural Issues

Section 15.1: Administrative Procedures Act

Comment a: A number of commenters argued that the C AM rule should or must be

formally proposed to satisfy section 553(b) of the APA, which requires every notice of proposed rulemaking to be published in the Federal Register. Several commenters stated that the Augus t 13, 1996 CAM notice of document availability did not satisfy the formal proposal requirement. Some commenters stated that the notic e’s statement that

the CAM draft was available on the TTN did not meet the requirements of the APA and that the notice limited availability of the document to those with the technological means to connect to the TTN. Two commenters

also noted that the earlier CAM draft had stated th at EPA planned to formally propose the CAM rulemaking. Some commente rs also stated that EPA's failure to issue a full RIA with the Aug ust 13, 1996 notice was another reason that EPA had failed to satisfy the A PA's notice and comment requirements. Another commenter urged EPA to formally repropose CAM with an RIA to allow review and publi c comment on the changes made to the proposed rule as a result of th e current comment period.

Some commenters stated that EPA must provide all in terested parties with adequate notice of its intent to issue a final rule. Commenters further stated that adequate notice can only be pro vided by publishing a notice of proposed rulemaking in the Federal Regist er describing the terms and substance of the proposed rule. The only exception is limited to notice for parties named in a proposed rule who may be personally served or otherwise provided with actual notice. T he commenters cited Rodway v. U.S. Dept. of Agriculture . One of these commenters added that the APA does not countenance any other sort of constructive notice, even in cases where publication in the Federal Regi ster seems unnecessary, citing Riverbend Farms Inc. v. Madigan . Also, two commenters stated that EPA cannot ignore APA requir ements just because the Agency must comply with statutory or co urt-ordered deadlines, such as the consent agreement governing CAM and the “credible evidence” rulemaking. These commenters c ited Mobay Chemical Corp. v. Gorsuch , AISI v. EPA , and Sharon Steel Corp v. EPA

. Further, commenters argued that the current CAM pro posal does not satisfy APA notice and comment requirements because many issuesCAM RTC (Part III)

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(such as how indicator ranges are to be established , how CAM plans or monitoring protocols are to be modified, how SIPs s hould be revised to incorporate Part 64, and how EPA reached its conclu sions about cost-effectiveness of the program (i.e., EPA failed to release an RIA)), are either not addressed or left unacceptably vague in the proposal.

Commenters also stated that the CAM proposal is pro cedurally flawed because it does not provide adequate notice that wo uld allow informed public comment. One commenter recommended that EPA revise and

reissue the current draft of the CAM rule in draft form for additional public

comment. This commenter stated that if a second dr aft were issued, it should be accompanied by a complete technical guida nce document and a regulatory impact analysis in order to allow affe cted parties to better analyze the draft rule and prepare comments in resp onse to the draft. Some commenters argued that there must be an approp riate opportunity for the entire regulated community to review and pa rticipate in discussion of a proposed CAM rule, and that without this type of formal proposal, it is impossible to comment meaningfully on the rule.

Response: EPA believes the procedures it followed i n promulgating the CAM rule fully

complied with the notice requirements of section 30 7(d) of the CAA and section 553(b) of the APA. In fact, the procedures followed by EPA in this case far exceeded statutory requirements and d emonstrated EPA’s responsiveness to the concerns of commenters. Iron ically, the unprecedented nature of EPA’s efforts to obtain pub lic comment on CAM is noted with approval by the some of the same comm enters who have asserted EPA has committed procedural error. See, e.g. , CMA, Cover letter (commending EPA for its “degree of openness” ); CAIP, p. 1 (“We also want to commend the EPA staff, led by Peter We stlin, for their extensive efforts to solicit the viewpoints of all interested stakeholders during the development of the CAM program.”).

As discussed in response to comment b, below, EPA b elieves that the final rule is justified as a logical outgrowth of t he 1993 EM proposal and thus no new proposal was required under the CAA or the APA. Even assuming, however, that certain provisions in the f inal rule could be found not to be a logical outgrowth of the original propo sal, the Agency further believes that the procedures used to solicit furthe r comment on its revisions to the 1993 proposal are in compliance wi th the requirements of section 307(d) of the CAA and section 553(b) of the APA.CAM RTC (Part III)

October 2, 1997 Page 330

The part 64 rulemaking was initially proposed on Oc tober 22, 1993 (58 FR 54648). The initial comment period was extended on December 15, 1993 (58 FR 65573). During that initial comment pe riod over 2,000 letters were received on the proposal. On December 28,1994, EPA reopened the comment period on particular issues. In response, the Agency received an additional 215 comment letters. In April and May 1995, the Agency announced its intention to conside r a different approach to providing data for compliance certification purp oses through part 64 than the approach proposed in the original proposal (see docket items VI-E-1 through VI-E-5 and 60 FR 27943, May 26, 1995 ). This approach was consistent with the vast majority of industry c ommenters on the proposed rule. Those comments argued that the prop osal would impermissibly create new continuous compliance test methods for existing applicable requirements. The Agency's revised appr oach was designed to focus on providing a reasonable assurance of com pliance by monitoring to assure that control equipment, once i nstalled, was properly operated and maintained so that the control equipme nt would continue to achieve compliance with applicable requirements.

The Agency first provided notice of and solicited c omment on its revised approach -- the CAM approach -- in September 1995 (see 60 FR 48679, September 20, 1995). The Agency published a brief summary of the proposed CAM approach in the Federal Register , referenced the legal authority for the proposed rule, and gave notice of when comments must be submitted and of a public meeting on the proposa l. The notice supplied the docket number for the rulemaking, the location of the docket, and the times the docket was open to the public. I n addition, the Federal Register notice informed the public how it could obtain a f ull text version of the revised proposed rule text and a statement of b asis and purpose for the proposed rule. The Agency received numerous co mments on that revised proposal both in the form of written submit tals and oral comments at the public meeting which was held. After conside ring the comments on the CAM approach, EPA decided that the overall thru st of the CAM approach should be retained but that some adjustmen ts were necessary. Rather than promulgate CAM at that point, the Agenc y initiated another round of comment on the CAM approach with publicati on of a Federal Register notice in August 1996 (see 61 FR 41991, Au gust 13, 1996).

This notice contained the same elements as the noti ce in September 1995 including making available a full text of the revised CAM approach and a statement of basis and purpose. Again, numer ous comments wereCAM RTC (Part III)

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received on that draft through both written submitt als and oral comments at a public meeting.

The notices published in September 1995 and August 1996 and the accompanying rule text and statements of basis and purpose meet each of the requirements specified in section 553(b) of the APA and section 307(d)(3). Those provisions require publication in the Federal Register of a notice that describes the public rulemaking proce edings (including the period for public comment), information regarding t he rulemaking docket, references legal authority for the rulemaking, and explains either the terms or substance of the proposed rule or a descri ption of subjects and

issues involved. Further, the notice must be accom panied by a statement of basis and purpose which includes a sum mary of factual data relied upon (including the methodology for obtainin g the data) and major legal interpretations and policy considerations. A s detailed above, each of these requirements was met. The cases cited by commenters to show procedural error are not on point. In each of thes e cases no notice of proposed rulemaking was published and the public wa s provided with far less opportunity to participate in the rulemaking. Riverbend Farms v. Madigan , 958 F.2d 1479, 1486-1487 (9th Cir. 1992) (notice of proposed rule not published in Federal Register; no allowanc e for submission of written comment); Mobay Chemical Corp. v. Gorsuch , 682 F.2d 419, 425-426 (3rd Cir. 1982) (notice of proposed rule no t published in Federal Register; circulation of working draft was too late to get comments from many interested parties); Rodway v. United States D ept. of Agriculture

, 514 F.2d 809, 814-815 (D.C. Cir. 1975) (notice of p roposed rule not published in Federal Register; no notice whatsoever and no period of public comment; “the APA procedures were ignored fr om start to finish”).

Commenters also claim procedural error occurred und er the Regulatory Flexibility Act (RFA) and Executive Order 12866. T he RFA generally requires an agency to conduct a regulatory flexibil ity analysis of any rule subject to notice and comment rulemaking requiremen ts unless the agency certifies that the rule will not have a sign ificant economic impact on a substantial number of small entities. (5 U.S. C. § 605(b)) The EPA made such a certification in regard to its 1993 pro posal and the CAM

drafts and took comments on the certification. See 62 FR 20147 (April 25, 1997); 61 FR 41991 (August 13, 1996); 58 FR 546 48, 54680-54681 (October 22, 1993). Thus, EPA fully complied with the RFA. Executive Order 12866 creates procedures for intergovernmenta l review of rulemaking proposals including specifying that Regu latory ImpactCAM RTC (Part III)

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Statements (RIA) be prepared for significant rules. EPA prepared a RIA and released it for public comment in connection wi th the 1993 proposal. The heart of the RIA prepared for CAM -- its analys is of the affected firms and the costs of CAM -- was also released to the pu blic for review and

comment.

In sum, EPA committed no procedural errors in the p romulgation of part 64. Each of the commenters claiming otherwise -- a s well as numerous other members of the public -- submitted extensive comments on the CAM approach, reflecting the adequacy of the public notices and opportunities for comment. Moreover, commenters ha ve not made any credible showing that part 64 would have been signi ficantly changed if some other procedure had been followed. See CAA § 307(d)(7)(B). Such a showing is not possible because the public h as been given unparalleled rights of participation in this rulema king.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); American

Petroleum Institute (VI-D-146); Armstrong, Teasdale , Schafly & Davis (VI-D-205); BP Oil Company (VI-D-113); Chemical Man ufacturers Association (VI-D-152); Chevron Companies (VI-D-132 ); Cinergy Corp. (VI-D-141); Clean Air Implementation Project (VI-D- 153); Coalition for Clean Air Implementation (VI-D-164); Coastal Corpor ation (VI-D-123); Electronic Industries Association (VI-D-137); Exxon Company, USA (VI-D-135); Fertilizer Institute (VI-D-253); Genera l Electric Company (VI-D-156); Independent Liquid Terminals Associatio n (VI-D-178); Louisiana Mid-Continent Oil and Gas Association(VI- D-184); Marathon Oil Company (VI-D-185); Mobil Corporation (VI-D-115); N ational Environmental Development Association (VI-D-169); O hio Chamber of Commerce, et. al. (VI-D-160); Pennzoil Company (VI- D-133); Specialty Steel Industry of North America (VI-D-143); Steel M anufacturers Association (SMA) (VI-D-144); Texas Natural Resourc e Conservation Commission (VI-D-256)

Comment b: Some commenters argued that the CAM prop osal does not constitute a

logical outgrowth of the previous enhanced monitori ng proposal. Commenters stated that because the CAM proposal rep resents a fundamentally different approach and raises numerou s issues, such as the QIP provisions, which are not the logical outgr owth of the enhanced monitoring proposal, EPA may not rely on the Octobe r 1993 publication of the enhanced monitoring proposal to satisfy the for mal proposalCAM RTC (Part III)

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requirement. Similarly, other commenters argued th at, since the draft CAM rule is a major revision of the 1993 EM proposa l, it would be inappropriate to finalize this revision without iss uing a formal proposal in the Federal Register. According to these commenter s, EPA's decision to proceed with final promulgation of CAM without rep roposal violates the notice and comment requirements of the Clean Air Ac t.

Some commenters further stated that the CAM rule ch anges the basic relationship of monitoring to compliance and expand s the rule's applicability. According to these commenters, when an agency strikes

out in a new direction because of criticism of its initial rulemaking, the agency must formally propose the redesigned rule. Some commenters included cites to relevant cases on point. In part icular, commenters cited

to the Shell Oil case, which involved a similar fact pattern involv ing significant changes in the monitoring required unde r the proposed and

final rules. Other commenters cited Fertilizer Ind ustry v. EPA . One commenter acknowledged that the "harmless error" do ctrine applies to failure to comply with the APA, and that the extens ive and laudable outreach process conducted by EPA may be sufficient provided that

comment is taken on the RFA and RIA. This commente r cited Riverbend

Farms . Two commenters also stated that the proposed cha nges to Parts 70 and 71 were not part of the original proposal an d thus have never been subject to formal public notice and comment. Thus, even if the CAM rule could qualify as a logical outgrowth of the 1993 EM proposal, these Part 70 and 71 changes cannot qualify.

Response: As indicated in the release of a draft pr oposal in 1995, the Agency did at

one point consider publishing the full text of a ne w proposed version of part 64 to reflect the revisions made since the ori ginal 1993 EM proposal. Subsequently EPA did release two revised versions o f part 64 for comment. As explained in the prior response, EPA b elieves these procedures fully complied with the requirements of the APA and the CAA for the reasons there stated. Additionally, the A gency believes this approach is justified because, as demonstrated in t he preamble to the final rule, the final rule is a logical outgrowth o f the original proposal. The revisions which industry claims are the provisions which cannot be considered a logical outgrowth are either in direct response to the suggestions they made on the original proposal, or are provisions which have been dropped from the final rule even though t hey were included in the 1996 part 64 Draft.CAM RTC (Part III)

October 2, 1997 Page 334

Although there have been substantial changes made t o the 1993 proposal in adapting it to the CAM approach, the 1993 propos al identified all of the critical issues in the rulemaking and gave affected parties notice that their interests were at stake. Importantly, the ba sic form of the rule

remained the same as the focus shifted to the CAM a pproach. There are several key elements to part 64: (1) applicability; (2) implementation through permits; (3) use of the data to determine c ompliance and submit compliance certifications; and (4) the criteria tha t must be met to satisfy the monitoring requirements. As discussed in detai l in the preamble to the final rule, each of the final rule provisions i n these areas is a logical outgrowth of the original proposal. For applicabil ity, the original proposal requested comment on numerous different applicabili ty options based on potential to emit or on uncontrolled emissions. Nu merous commenters urged EPA to further narrow applicability so that w ork practice and other non-numeric emission standards would not be subject to part 64. In addition, commenters argued that the type of monito ring considered for part 64 is best suited to emissions units with add- on control equipment. By limiting the rule to emissions units with contro l devices, the Agency believes that it has responded effectively to these concerns. The other applicability provisions are closely related to the options discussed in the original proposal, or are exemptions specifically r equested in the comments received from various industry commenters.

For implementation, the Agency has retained the bas ic concept of implementing the rule through permits, although the final rule focuses only on title V operating permits and extends the implem entation time period in response to concerns about burdens to the permit pr ocess. The possibility of an extended implementation schedule was raised in the December 1994 notice reopening the comment period o n the original proposal and thus commenters had a full opportunity to comment on possible options for extending the implementation s chedule.

With respect to the use of data for certification p urposes, the original proposal would have required the owner or operator to use the monitoring to determine compliance for purposes of submitting a compliance certification. Although the 1993 proposal did not include revisions to the part 70 or part 71 rules, it did include appropriat e cross-referencing that would have impacted how the part 64/part 70 (or 71) compliance certification interface would be implemented. The final rule retains the basic approach that part 64 monitoring must be reli ed on in submitting compliance certifications and makes appropriate rev isions to the actualCAM RTC (Part III)

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provisions in parts 70 and 71 in order that part 64 will be implemented appropriately. The Agency believes that the revisi ons to parts 70 and 71 are a logical outgrowth of the original proposal an d clarify how part 64 monitoring should be evaluated for purposes of cert ifying compliance.

Finally, the monitoring criteria in the final rule are less strict than in the proposal, primarily in response to industry comment s on the proposal and in response to the Agency reconsidering the certain ty with which an owner or operator must determine compliance for purposes of submitting a compliance certification. However, many of the bas ic requirements included in the proposal with respect to the types of monitoring criteria that must be achieved and the flexibility for monit or selection that best suits the needs of a facility are retained in the f inal rule. Although the focus of CAM is now directed primarily at monitorin g control equipment, such parameter monitoring was contemplated to play a major role in the monitoring approach proposed in 1993.

In addition, particular aspects of the 1996 part 64 Draft, most notably the QIP requirements, which commenters claimed could no t be considered a logical outgrowth of the 1993 proposed rule, have b een significantly changed in the final rule. The QIP provisions in t he final rule do not include an automatic trigger provision or an automa tic violation provision upon a second QIP occurring. Rather, the QIP provi sions lay out a procedural mechanism that a permitting authority or EPA may require if an owner or operator is determined to have failed to m eet the general duty to operate and maintain an emissions unit properly. T he Agency believes that this non-mandatory provision is appropriate fo r the final rule even though it was not included in the original proposal . The QIP provisions have been revised extensively in light of the numer ous public comments received and it is unlikely that further public com ment and review would result in significant changes to the QIP provisions

.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); American

Petroleum Institute (VI-D-146); Chemical Manufactur ers Association (VI-D-152); CITGO Petroleum Corporation (VI-D-172); Clean Air Implementation Project (VI-D-153); Coalition for Cl ean Air Implementation (VI-D-164); Electronic Industries Association (VI-D -137); Enron Operations Corp. (VI-D-235); Exxon Company, USA (VI -D-135); Fertilizer Institute (VI-D-253); General Electric Company (VI- D-156); Mobil Corporation (VI-D-115); Ohio Chamber of Commerce, e t. al. (VI-D-160); Southern California Gas Company (VI-D-222); Southwe stern PublicCAM RTC (Part III)

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Service Company (VI-D-224); Specialty Steel Industr y of North America (VI-D-143); Steel Manufacturers Association (SMA) ( VI-D-144); Texas Utilities Services, Inc. (VI-D-121)

Comment c: One commenter stated that failing to re propose CAM would unfairly

limit the opportunity of parties to comment on CAM and obtain judicial review, because a number of new significant issues have arisen since the changes from the original 1993 EM proposal and the legal status, in terms of judicial review, of comments on CAM drafts relea sed through the TTN

is uncertain.

Response: The EPA has included all comments receive d on this rulemaking in the

docket. This docket will become the record for jud icial review if such review is sought. In the three parts of this respo nse to comments document EPA has responded in detail to all comment s received on the 1993 proposal, the December 1994 reopended comment period, the August 1996 revised CAM approach, and impact analys es released in 1997. The Agency has reviewed all of the comments received in response to the September, 1995 notice and determin ed that EPA’s response to comments received in 1996 and 1997 addr ess all of the significant comments received on the earlier notice

.

Letter(s): General Electric Company (VI-D-156)

Comment d: One commenter also stated that the Augus t 1996 draft failed to explain

how the Agency arrived at the current CAM draft fro m the original EM proposal, what factors were evaluated, or how the A gency considered the comments on the original proposal. This commenter stated that EPA cannot propose such a dramatic policy shift and mai ntain that the original proposal provided adequate notice for comment on al l portions of the rule.

Response: As explained in responses to Comments a a nd b above, EPA believes

that the August, 1996 revised CAM draft independent ly meets the applicable procedural requirements and that this fi nal rule is a logical outgrowth of the 1993 proposal. Thus, EPA believes all affected parties received adequate notice and opportunity to comment

.

Letter(s): Ohio Chamber of Commerce, et. al. (VI-D- 160)CAM RTC (Part III)

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Comment e: Some commenters argued that even if the August 13, 1996 notice of

document availability did satisfy the requirements of the APA, it did not satisfy the requirements of SBREFA, which applies t o all notices of proposed rulemaking issued after June 29, 1996. Tw o commenters asserted that by failing to satisfy SBREFA requirem ents, EPA failed to satisfy APA notice and comment requirements. Anoth er commenter stated that EPA cannot have it both ways: if the Au gust 13th notice was the functional equivalent of a reproposal, then the notice was required to meet the new SBREFA requirements. A commenter expl ained that a SBREFA review panel would allow for more meaningful input on small business impacts and added that the Agency should r ecognize that even without reproposal of the rule SBREFA provisions su ch as the Congressional Review and regulatory flexibility ana lysis requirements will apply to the final rule.

One commenter asserted that EPA's reason for failin g to publish a notice of proposed rulemaking was to avoid its obligation to release the initial RFA and RIA that would accompany the Federal Regist er notice.

Response: As made clear in the response to Comment a, EPA has fully complied

with the RFA. The EPA has also made the most relev ant portions of the

RIA available for comment.

Letter(s): American Petroleum Institute (VI-D-146); Chemical Manufacturers

Association (VI-D-152); Chevron Companies (VI-D-132 ); Coalition for Clean Air Implementation (VI-D-164); Council of Ind ustrial Boiler Operators (VI-D-263); Exxon Company, USA (VI-D-135) ; Mobil Corporation (VI-D-115); Specialty Steel Industry of North America (VI-D-143) ; Steel Manufacturers Association (SMA) (VI-D-144); The Society of the Plastics Industry, Inc. (VI-D-148)

Comment f: One commenter also reiterated its previo usly expressed concern about

EPA's tendency to publish proposed rules via comput er bulletin boards (and now web sites) rather than publishing them in the Federal Register. The commenter reasoned that many people have diffic ulty getting access to such systems and that diagrams, tables, and the like are often distorted or lost altogether. Similarly, another commenter o bjected to the manner

in which the draft CAM rule was made available for comment, and expressed the hope that for all other future rules EPA will publish the entire rule in the Federal Register.CAM RTC (Part III)

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Response: The Agency published a notice of document availability in the Federal

Register. That notice indicated that the document was available not only through the TTN but also through the docket. The n otice also provided instructions for contacting appropriate Agency staf f for further information so that, among other things, interested parties tha t cannot access the material through electronic media or the docket cou ld obtain a hard copy directly from EPA. The Agency distributed copies o f the draft rule and discussion directly to all individuals requesting c opies.

Letter(s): Chemical Manufacturers Association (VI-D -152); Metropolitan Council

(VI-D-214)

Comment g: Some commenters stated that the lack of proposed credible evidence

language in the draft CAM package also made the rul e procedurally

flawed. These commenters noted that this is true e ven if the release of the draft on the TTN was sufficient to satisfy the APA. Other commenters agreed. Two commenters stated that the CAM rule must be joined with a credible evidence rule if EPA intends to proceed with a

credible evidence rule. Commenters also asserted t hat, to comply with the APA, EPA should rejoin the credible evidence an d CAM proposals and issue a reproposal that fully explores the auth ority for, the relationship between, and the joint impact of the two rules. So me commenters stated

that the credible evidence and CAM rules are inextr icably intertwined, with the impact of each rule on industry being determine d in many respects by

the content of the other rule. One commenter state d that despite EPA's assurances, environmental groups and citizens will use CAM information as credible evidence, which will increase the Respo nsible Official's legal exposure and make it difficult to sign the biannual certification. Finally, a commenter stated that the lack of formal proposal f or both the CAM and

credible evidence rules makes them more vulnerable to legal challenge and heightens regulatory uncertainty, which is not desirable for regulatory agencies or the regulated community.

Response: The Agency disagrees with those comments that argue that the CE

revisions and part 64 must be proposed together. T he Agency has finalized the CE revisions (see 62 FR 8314, Februar y 24, 1997). In Section I.A. of the preamble to the final CE revisi ons, the Agency fully explained the rationale for why the rules can be tr eated separately.CAM RTC (Part III)

October 2, 1997 Page 339

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); Baltimore

Gas & Electric Company (VI-D-177); BP Oil Company ( VI-D-113); Eastman Chemical Company (VI-D-173); Electronic Ind ustries Association (VI-D-137); General Electric Company (VI-D-156); In dependent Liquid Terminals Association (VI-D-178); Ohio Chamber of C ommerce, et. al. (VI-D-160); Pennzoil Company (VI-D-133); Southern C ompany Services (VI-D-171); Tennessee Valley Authority (VI-D-162); The Society of the Plastics Industry, Inc. (VI-D-148); Utility Air Reg ulatory Group (VI-D-140)

Section 15.2: OMB Review/Regulatory Impact Analysis (prior to release of RIA

sections)

Comment a: Some commenters stated that Executive Or der No. 12866 requires EPA

to issue both an initial and final Regulatory Impac t Analysis. One commenter added that EPA may not simply ignore the requirements to

issue initial and final RIAs that assess the costs and benefits of the Agency’s approach and reasonably feasible alternati ves when a rulemaking is subject to statutory and court-impose d deadlines. The commenter stated that EPA must schedule rulemaking proceedings to allow for compliance to the extent practicable. Tw o commenters stated

that EPA should also make the entire RIA available for public comment prior to promulgation, instead of making available only the excerpts that EPA plans to post on the electronic bulletin board.

Two commenters also stated that the current CAM pro posal must be considered a "significant" proposed rule under the Executive Order. The proposal would have an annual effect on the economy of at least $100 million, and it involves novel legal and policy iss ues associated with section 114(a)(3) which affect implementation under other provisions of the CAA, notably Title V. One of the commenters co ncluded that EPA must therefore issue an RIA for the CAM rule for pu blic comment; the other stated that EPA must use proper data analyzin g costs and benefits using reasonably current and accurate practices and dollar amounts.

Some commenters stated that making the initial RIA available helps the public determine whether to submit comments and mak es the comments submitted more meaningful, particularly for a major rule like CAM, which will impact every State and federal regulation. Tw o commenters

reasoned that EPA would assure even better construc tive notice and meaningful comments on the CAM rule by publishing t he initial RIA. ForCAM RTC (Part III)

October 2, 1997 Page 340

example, one commenter continued, it is impossible to comment effectively on issues such as the minimum data avai lability requirement, the 5 percent QIP threshold or the rule’s method of determining applicability without knowing the statistical and technical basis underlying those requirements. Commenters also stated that t he RIA must be available for sources to evaluate the rule impacts, comment effectively, and determine whether EPA understands the potential impacts and has chosen the most cost-effective proposal. Another c ommenter stated that since EPA has not released the RIA, the public has no information on how many emissions units EPA expects to be covered by S ubpart B, Subpart C, or the rule in general. Two commenters stated t hat the unavailability of the RIA undermines the public's ability to comme nt on the

cost-effectiveness of the CAM rule and to evaluate the rule's compliance with the Paperwork Reduction Act.

Commenters also stated that EPA cannot consider the initial RIA prepared for the enhanced monitoring proposal to qualify as the initial RIA for the

CAM rule. These commenters stated that the RIA for the enhanced monitoring proposal was based on data from 1981 and was flawed in other ways. Also, these commenters stated that the RIA for the enhanced monitoring proposal reflected costs and be nefits of the enhanced monitoring rule and not the very different costs and benefits

that would be associated with the CAM rule.

Some commenters stated that there is an increased n eed to make the entire RIA, not just the portions published on EPA’ s electronic bulletin board, available for public comment prior to public ation of the final rule because the current CAM draft is significantly diff erent from the 1995 proposal. For example, these commenters noted, the current draft would allow permitting authorities to subject Subpart C s ources to Subpart B requirements, and the impact analysis should reflec t the resulting potential

increase in costs.

A commenter stated that EPA has failed to address t he fundamental question of the need for additional monitoring and has not publicly documented any analysis of the benefit of the rule. The commenter concluded that a cost/benefit analysis must be cond ucted.

Some commenters also stated that EPA’s failure to p ublish the RIA further supports the position that the CAM "proposal" is pr ocedurally defective and must be published as a proposed rule.CAM RTC (Part III)

October 2, 1997 Page 341

Several commenters recommended that EPA make the Re gulatory Impact Analysis available for comments before promulgating the CAM rule. One

commenter added that the RIA should be released at lease 180 days

before the CAM rule is finalized. This commenter s trongly recommended

that EPA account for the number of additional emiss ion limitations in an RIA if EPA plans to include minor new source review under the CAM rule.

Other commenters stated that the failure to releas e the RIA only causes mistrust and suspicion. Another commenter stated t hat affected entities should have the opportunity to suggest revisions to the analysis and to use its findings in their assessment of the propose d rule. Two

commenters asserted that the overall cost of CAM wi ll be a burden on the States through the Title V program, thus requiring an increase in Title V fees to implement the program.

Response: The initial RIA for part 64 was released with the proposal in October 1993.

The Agency received numerous comments on the initi al RIA. To assure the broadest possible participation in rule develop ment, EPA made available portions of a revised RIA and accepted pu blic comment on those materials. The portion of the RIA made available c ontained the bulk of the factual analysis in the document and addressed such issues as what firms would be affected and the size of the impact. Thus, affected parties, to the extent it is relevant to this rulem aking, have had an opportunity to comment on EPA’s analysis of the imp acts of the CAM approach.

Letter(s): American Gas Association (VI-D-154); Ame rican Petroleum Institute

(VI-D-146); BP Oil Company (VI-D-113); Chemical Man ufacturers Association (VI-D-152); Chevron Companies (VI-D-132 ); Cinergy Corp. (VI-D-141); Clean Air Implementation Project (VI-D- 153); Coalition for Clean Air Implementation (VI-D-164); Coastal Corpor ation (VI-D-123); Colorado Association of Commerce and Industry (VI-D -182); Eastman Chemical Company (VI-D-173); Electronic Industries Association (VI-D-137); Independent Liquid Terminals Associatio n (VI-D-178); Louisiana Mid-Continent Oil and Gas Association (VI -D-184); Mobil Corporation (VI-D-115); Ohio Chamber of Commerce, e t. al. (VI-D-160); Pennzoil Company (VI-D-133); Phillips Petroleum Com pany (VI-D-131);

Pharmaceutical Research and Manufacturers of Americ a (VI-D-217); Specialty Steel Industry of North America (VI-D-143 ); Steel Manufacturers Association (SMA) (VI-D-144); Southern Company Serv ices (VI-D-171); Southwestern Public Service Company (VI-D-224); Tex as NaturalCAM RTC (Part III)

October 2, 1997 Page 342

Resource Conservation Commission (VI-D-189); Texas Utilities Services, Inc. (VI-D-121); UCAR Carbon Company, Inc. (VI-D-12 2)

Section 15.3: Regulatory Impact Analysis (Reopened Comment Period)

Comment a: A commenter argued that because of the l ength of time it took EPA to

place the RIA in the docket, the review period was unreasonably

foreshortened and deliberation was curtailed.

Response: The Agency believes that the more than 30 -day period for review of the

draft portions of the RFA and RIA was adequate to p rovide meaningful

comment.

Letter(s): Council of Industry Boiler Operators (VI -D-263)

Comment b: One commenter stated that the RIA genera lly understates costs since it

failed to consider the impact of the CAM and CE rul es working simultaneously, increased stringency of standards, and unique adverse impacts for small and medium sized businesses. A c ommenter argued that the time allocated to CAM plan preparation in the RIA is inadequate in light of the consequences associated with monitorin g decisions under the

CE rule. Another commenter agreed generally that the costs o f establishing and running monitoring under part 64 i s increased by the CE rule, adding that the potential for extended negoti ations after public

comment or EPA review has not been considered. A commenter argued that if the final rule does not provide a shield against the use of CAM data in enforcement, the RIA imprope rly ignores one of

the uses of CAM data and is therefore invalid.

Response: The Agency has already responded to comme nts on the CE rule and

potential impacts on stringency in finalizing that rule (see 62 FR 8314, February 24, 1997). Because the Agency does not be lieve the rule will have the effect of increasing stringency, it disagr ees with these comments suggesting that EPA should take into consideration as a regulatory cost of part 64 the concerns of some industry commenters th at the CE rule will increase the stringency of underlying rules.CAM RTC (Part III)

October 2, 1997 Page 343

Letter(s): Coalition for Clean Air Implementation ( VI-D-249); Council of Industry

Boiler Operators (VI-D-263); National Environmental Development Association (VI-D-254)

Comment c: One commenter argued generally that the RIA underestimates costs by

relying on liberal interpretations of the 1996 part 64 Draft which would not necessarily prevail. For example, the commenter di sagreed with the assumption made in the partial RIA that subpart C o f the 1996 part 64 Draft would not result in any costs beyond those in curred as a result of part 70. This commenter noted, and other commenter s agreed, that sources subject to these requirements could be requ ired to establish indicator ranges or implement QIPs under the 1996 D raft. A commenter added that the standard for indicator ranges in the RIA was not consistent with the 1996 part 64 Draft. The commenter stated that higher costs would be incurred to establish monitoring designed to assure compliance with applicable limits at all times, and requested clarification of these

issues in the final rule. A commenter stated in particular that the relationship between CAM and the CE rule will cause sources to implement more extensive and costly monitoring than that reflected in the partial RIA. The commenter recommended making the rule reflect the RIA's assumption regarding the monitoring required by part 64, but stated that if such changes are not made in the final rule , the RIA must be adjusted to accurately reflect the requirements of the final rule.

Another commenter also expressed concern over the s tandard for indicator ranges in the RIA. This commenter based its objections to the standard used on both the language of the 1996 part 64 Draft and the potential for CAM data to be used as credible evide nce. This commenter also cited other examples in which the RIA assumed that part 64 imposes no cost over those already established by part 70 f or which the 1996 part 64 Draft does seem to create new requirements such as performance testing, recordkeeping, reporting, compliance cert ification and QIPs. Another commenter agreed that costs should have bee n allocated for subpart C and QIPs in the RIA.

Response: The Agency believes that the final rule c larifies these issues and that the

lack of cost consideration for these issues in the RIA is appropriate. First, the final rule does not include a subpart C and thus those comments are no longer applicable. Second, the QIP provisio ns have been substantially modified so that it is clear that QIP s are intended as oneCAM RTC (Part III)

October 2, 1997 Page 344

possible response to a source that has been found i n violation. Third, the criteria for indicator ranges have been clarified ( see response to section 6.1 (Part III) above), and the Agency believes that the assumptions

included in the final RIA are consistent with the r equirements of the final rule. For the other cost categories mentioned, the Agency believes that the final RIA adequately estimates the costs EPA ex pects will be incurred above and beyond the baseline part 70 costs.

Letter(s): Can Manufacturers Institute (VI-D-262); Coalition for Clean Air

Implementation (VI-D-249); El Paso Energy (VI-D-257 ); National Environmental Development Association (VI-D-254); T exas Natural Resource Conservation Commission (VI-D-256)

Comment d: One commenter requested clarification of whether sources with PTE limits

are subject to CAM. The commenter explained that i f PSEUs that are kept out of Title V and NSR, or RATS and NSPS by ad d-on controls, process controls, pollution prevention or throughpu t limitations are subject to CAM, the RIA has not addressed these costs.

Response: If sources are not subject to title V per mitting, they are not subject to part

64. However, once a source is subject to title V p ermitting, individual units will be subject to part 64 if they are subje ct to applicable requirements (including federally-enforceable PTE l imits) for which the owner or operator relies on a control device to ach ieve compliance.

Letter(s): National Environmental Development Assoc iation (VI-D-254)

Comment e: Several commenters noted that the partia l RIA does not present a

consideration of the benefits of the rule or a desc ription of alternatives to the approach proposed. According to these commente rs, without these discussions, EPA has no basis for rejecting their a rguments that the costs of CAM outweigh its benefits and the benefits that do exist could be achieved by a less intrusive program. These commen ters also noted that omitting the benefits analysis did not meet regulat ory requirements.

Commenters also objected to the Agency's failure to provide background information to support the assumptions or data sour ces used in the RIA such as the sample of emission points used to estim ate the costs of implementing CAM.CAM RTC (Part III)

October 2, 1997 Page 345

Response: The EPA is not relying on its benefits an alysis in support of part 64

because section 114(a)(3) does not require a cost-b enefit analysis for enhanced monitoring and compliance certification re gulations.

On the issue of the Agency not providing extensive background information in making the draft cost analysis avail able to the public in April 1997, the Agency did not intend that draft to be co nclusive nor comprehensive on every analytical result. Instead, the Agency intended to respond to stakeholders questions about the meth odology used in developing the RIA. Providing extensive background on the values used in that methodology would have been unnecessary. O n the other hand, many commenters on that document provided extensive comments on the accuracy of the draft results even without all the background information. All the background information on the development o f the RIA is made

available at the time the rule is finalized.

Letter(s): Can Manufacturers Institute (VI-D-262); Coalition for Clean Air

Implementation (VI-D-249); Institute of Clean Air C ompanies (VI-D-139); Mobil Corporation (VI-D-248); National Environmenta l Development Association (VI-D-254)

Comment f: Commenters identified four cost categori es for which the RIA reported no

incremental CAM costs. The comments indicated that positive, and possibly significant, costs would be incurred by so urces due to CAM requirements for these types of costs. The cost ca tegories included: Part 70 costs associated with operating permit requireme nts; CAM costs for subpart C emission units; CAM costs related to deve lopment of a Quality Improvement Plan (QIP); and costs associated with a pproval and negotiation of CAM monitoring criteria.

Response: Part 70 costs: Comment was offered that f uture public comment made

pursuant to title V procedures would impose additio nal costs on sources and permitting authorities. The CAM RIA does not i nclude these costs because these costs are more appropriately viewed a s part of the existing part 70 requirements.

Subpart C costs: Chapter IV of the draft portions o f the RIA released for public comment states that incremental costs for su bpart C emission units are not included in the CAM cost analysis because t he requirements for subpart C units are intended to be no more stringen t than requirementsCAM RTC (Part III)

October 2, 1997 Page 346

already in place for periodic monitoring under part 70. As described above subpart C is not included in final rule and t hus those comments are no longer applicable.

QIP costs: Several commenters suggested that the co sts of QIP development and corrective actions be included in t he cost analysis. The CAM cost analysis adopts the perspective that sourc es will maintain compliance with applicable requirements under Compl iance Assurance Monitoring. The indicator ranges proposed by sourc e owners or operators should identify problems so that actions to maintain compliance can be initiated in a timely manner. If a source o wner or operator does not maintain surveillance of monitoring data, a QIP may be required, but

this should not be treated as a cost of the rule. Similarly, the costs of coming into compliance are not separately identifie d in the RIA. These costs have already received attention in the costin g of the underlying applicable requirement.

Approval and Negotiation: Chapter IV of the RIA doe s not identify separate costs for approval and negotiation of CAM plans for subpart B emission units. The August 1996 draft CAM rule doe s not identify a specific process for negotiation and approval. The RIA assumes that

there will be no incremental costs for these activi ties. For those source owners or operators who must upgrade or newly insta ll monitoring to meet CAM requirements, the RIA assumes that the effort i ncurred to identify part 64 monitoring criteria will lead to acceptable monitoring. Note, the RIA cost analysis provides for incremental costs in curred for revisions should a source or permitting authority determine t hat criteria initially proposed are too binding or too lenient. Any addit ional costs for negotiating approval should not be significant.

Letter(s): El Paso Energy (VI-D-257); Mobil Corpora tion (VI-D-248); National

Environmental Development Association (VI-D-254); U tility Air Regulatory Group (VI-D-140)

Comment g: Several comments were concerned with the underestimation of costs in

the cost categories for which the draft RIA did rep ort incremental costs. The RIA develops cost estimates based on similar co sts identified for other regulations, comparisons with part 70, and ex pert judgment. The comments generally indicated that the RIA underesti mated costs to sources by a factor of five and underestimated cost s to permittingCAM RTC (Part III)

October 2, 1997 Page 347

authorities by a factor of forty. In particular, c ommenters expressed concern about a number of specific costs such as th ose associated with the verification of indicator ranges, costs for acq uiring, installing and operating additional hardware, and reporting, recor dkeeping and

certification costs. The commenters also discussed costs related to permitting beyond the initial negotiation of part 6 4 monitoring, such as the potential need to reopen or revise permits should c hanges in the monitoring be required.

Response: The discrepancies cited are due to a conf usion on the applicable units of

the cost analysis, the incremental burden of CAM ab ove existing part 70 requirements, and the requirements of regulatory im pacts analysis to evaluate only the burdens associated with meeting F ederal requirements. A key element of all cost estimates is that they re present the incremental costs of CAM. For example, costs due to part 70 re quirements are

assumed to be in the baseline and do not contribute to the costs of CAM. One commenter cited State programs in Ohio and Oreg on as proof of underestimates in the CAM Rule RIA. The Oregon mon itoring program is a part 70 response to periodic monitoring requireme nts and will need to be upgraded to meet some CAM requirements. This is an example of the incremental nature of CAM in that the majority of m onitoring program costs in Oregon have already been included in the p art 70 program costs and, therefore, it is expected that CAM will have a small incremental cost. Rather than confirming a substantial underestimati on of the burden on State and local permit authorities (a factor of for ty), the Oregon information tends to supports the small incremental burden of CAM above the existing burdens imposed by part 70.

The information submitted based on Ohio’s Operation and Maintenance (O&M) Guidelines is misdirected for a similar reaso n. Ohio’s O&M Guidelines were developed to support New Source Rev iew, part 70 and other existing programs. This document was develop ed in 1992 and is not responsive to CAM. Costs associated with imple menting this guidance would be attributable to part 70 or other requirements. Furthermore, should a State elect to implement a pr ogram with requirements more rigorous than CAM, these costs ca nnot be attributed to

the Federal rule. For these reasons, these comment s also tend to support the incremental nature of CAM.

The CAM costs are intended to represent a typical o r average respondent burden. Some examples of CAM costs were based on w orst-caseCAM RTC (Part III)

October 2, 1997 Page 348

assumptions. The estimates in the CAM RIA reflect a mixture of respondent costs based on survey results from the f ive-State survey. While a limited number of high cost responses are a nticipated, responses

for some units, such as thermal oxidizers with exis ting temperature monitoring, will have very low response costs. On e commenter produced a per facility cost and used this for comp arison with costs in the RIA which reflected costs per pollutant specific em issions unit (cost per pollutant per emissions unit). These approaches wi ll lead to substantially higher estimated costs than those predicted in the RIA.

Letter(s): Coalition for Clean Air Implementation ( VI-D-249); El Paso Energy

(VI-D-257); National Environmental Development Asso ciation (VI-D-254); Mobil Corporation (VI-D-248)

Comment h: Commenters raised questions concerning t he completeness and

representativeness of the five-State sample that wa s used to determine the number of CAM pollutant specific emissions unit s.

Response: With respect to completeness, it should b e noted that the complete data

bases for the sample States were used to determine the number of potentially affected pollutant points. The random survey of 375 points was conducted to determine how the full set of pote ntially affected points would be allocated to the various CAM response cate gories. As part of the survey, information was also collected on the f raction of potentially affected points that would not be subject to Federa l regulation as well as the fraction of points that would be judged to have acceptable existing monitoring systems. The core set of potentially af fected points, however,

reflects all available data. Since some States did not have complete lists

of title V sources as of the date of data collectio n, supplemental reviews

were conducted to add to the set of identified titl e V sources, and to

include other sources in the State data bases that were likely to be subject to title V requirements. EPA has reviewed the fina l set of affected points and believes that this is a good estimate. Large d iscrepancies noted by commenters may reflect a misapplication of the appl icability conditions.

With respect to the representativeness of the five- State sample, EPA notes that supporting documents prepared for the En hanced Monitoring docket describe a more complex extrapolation method ology which does take into account the distribution of major sources across States. As a result of the earlier analysis, EPA concluded that the five States providedCAM RTC (Part III)

October 2, 1997 Page 349

a representative sample. Furthermore, a multiplica tive scale factor equal to the ratio of sample States to all States would b e appropriate for extrapolation. With the CAM rule, an additional re presentativeness test was performed. This test examined the distribution of SIC codes by intervals. With a representative sample, one expec ts that about 10 percent of all sources in a specific SIC group woul d be in the five sample States. This result was confirmed for about 15 per cent of all SIC categories. For all intervals, the 10 percent inte rval was the median of the distribution. To provide additional clarificat ion, the RIA for the final rule will identify those two-digit SIC categories f or which the five-State sample appears most representative.

Letter(s): National Environmental Development Assoc iation (VI-D-254); Texas

Natural Resource Conservation Commission (VI-D-256)

Comment i: A commenter also noted that separate cos ts were not computed for

applicability determination by permitting authoriti es.

Response: This activity was not included in the Apr il 25, 1997 release but is included

in the final RIA for part 64.

Letter(s): Texas Natural Resource Conservation Comm ission (VI-D-256)

Comment j: Comments were also provided concerning t he count of municipally owned

electric utilities included in the analysis of smal l government impacts. One comment provided additional information on muni cipally-owned electric utilities in one of the survey States (Col orado).

Response: Although the commenter provided additiona l information on small utilities,

including minor sources not subject to CAM, none of the information provided affected any of the conclusions regarding burdens on small

entities.

Letter(s): Arkansas River Power Authority (VI-D-245 )

Section 15.4: Paperwork Reduction ActCAM RTC (Part III)

October 2, 1997 Page 350

Comment a: Some commenters asserted that CAM will r esult in an increased

paperwork burden for both the regulated community a nd State and local agencies. Two commenters requested that EPA demons trate how the proposed CAM rule and its increased reporting burde n comply with the

March 4, 1995 Presidential initiative on eliminatin g unnecessary recordkeeping and reporting burdens. Another comme nter stated that adding new monitoring and reporting requirements, r ather than revising existing requirements, does not seem to be in keepi ng with the Paperwork

Reduction Act.

Response: The final Information Collection Request estimates the reporting and

recordkeeping burdens associated with part 64. See docket item A-91-52-VI-A-5. The Agency believes that the repor ting and recordkeeping requirements in part 64 are appropria te and in most cases reflect baseline requirements already established i n part 70.

Letter(s): Cinergy Corp. (VI-D-141); Texas Natural Resource Conservation

Commission (VI-D-189); Texas Utilities Services, In c. (VI-D121); Wisconsin Electric Power Company (VI-D-130)

Section 15.5: Unfunded Mandates Reform Act

Comment a: One commenter stated that CAM triggers T itle II of the Unfunded

Mandates Reform Act, because it does not meet the r equirement that EPA "select the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rul e."

Response: The EPA believes it has selected the an a lternative for implementing the

enhanced monitoring requirements that fully complie s with UMRA. A full description of EPA’s compliance with UMRA is set fo rth in the final RIA.

Letter(s): Institute of Clean Air Companies (VI-D-1 39)

Section 15.6: Regulatory Flexibility Act

Comment a: Several commenters stated that EPA must issue and accept comment on

an initial Regulatory Flexibility Analysis regardin g the draft CAM rule. Some commenters added that the Regulatory Flexibili ty Act, as amended by SBREFA, requires EPA to issue a detailed regulat ory flexibility analysisCAM RTC (Part III)

October 2, 1997 Page 351

during the proposal process to allow the public to comment on the impact

of the rule. Two commenters also stated that EPA c annot rely on the initial RFA screening analysis prepared for the enh anced monitoring proposal to show that a substantial number of small entities would not be affected by CAM because the CAM approach differs dr amatically in applicability from the enhanced monitoring proposal . One of these commenters encouraged EPA to release an initial RFA describing the CAM approach in sufficient time that EPA can though tfully review comments it receives and modify the CAM rule approp riately. A commenter stated that with the comment period on th e CAM rule closed, any parties who become aware of the impacts of the rule only after publication of the RFA will be deprived of an oppor tunity to provide meaningful comment on the draft CAM rule. This com menter recommended that EPA accept comments on the substan ce of the rule during the comment period established for the RFA.

One commenter stated that, among other things, EPA must convene a stakeholder process under SBREFA prior to proposing a rule. In this

context, the commenter added, EPA must at least acc ept the SBA's proposals or explain why they are inappropriate.

Response: The EPA’s compliance with the RFA is expl ained in response to Comment

a of Section 15.1 (Part III). No regulatory flexib ility analysis or small business panel review is necessary for part 64 beca use, among other

reasons, EPA has certified that there will be no si gnificant impact on a

substantial number of small entities. As to the co mment concerning the limited nature of the comment period on the RFA ana lysis, EPA believes the comment period was appropriately limited to iss ues raised by the RFA analysis. EPA specifically stated that comments re lated to applicability definitions would be accepted. These definitions d etermine which sources are covered by the rule.

Letter(s): Chemical Manufacturers Association (VI-D -152); Chevron Companies

(VI-D-132); Clean Air Implementation Project (VI-D- 153); Engine Manufacturers Association (VI-D-117); Ohio Chamber of Commerce, et. al. (VI-D-160); Pharmaceutical Research and Manufac turers of America (VI-D-217); Specialty Steel Industry of North Ameri ca (VI-D-143); Steel Manufacturers Association (SMA) (VI-D-144)CAM RTC (Part III)

October 2, 1997 Page 352

Section 16: Guidance

Comment a: A state agency stated that an unnecessar y second determination of

whether or not the emissions unit is located at a m ajor source seems to be included in figure 1-2, step 10 of the CAM appli cability flow diagram in the September 5, 1996 technical guidance document. The agency asked that the diagram and the rule be made consistent.

Response: The guidance will reflect this change.

Letter(s): Ohio EPA, Division of Air Pollution Cont rol (VI-D-180)

Comment b: A local agency requested that the CAM Il lustration section of the October

11, 1996 technical guidance document be expanded to include all control equipment codes in the AIRS system.

Response: The Agency intends to include guidance on as much as possible given

current resources. The agency plans to further expa nd the guidance to include more examples including input from State an d local agencies and industry once the rule is in effect.

Letter(s): South Coast Air Quality Management Distr ict (VI-D-233)

Comment c: One commenter stated that section 4.2.1 of the draft guidance should be

expanded to include manual reading of temperature b ecause remote facilities may not have the electrical capacity to use the electronic temperature reading approaches outlined in the guid ance.

Response: A number of alternative approaches to mea surements will be included as

appropriate, including manual methods.

Letter(s): Texaco Environment Health & Safety (VI-D -190)

Comment d: One commenter was concerned about the ph ilosophy that will guide the

development of examples. The commenter noted that the idea of having to validate calibration of devices that were previo usly used as indicators and were done on an as needed basis is not very cos t-conscious. In addition, the commenter added that physical logging of data takes timeCAM RTC (Part III)

October 2, 1997 Page 353

and converting it to electronic data is expensive a nd causes additional calibration problems.

Response: The guidance is intended to be sensitive to current practices as much as

possible and will take into account cost, where app ropriate, in presenting examples.

Letter(s): Wisconsin Electric Power Company (VI-D-1 30)

Comment e: Several commenters supported generally t he expansion of current

guidance materials and the development of supplemen tal guidance materials. Several state and local agencies suppor ted the preparation of a guidance document as discussed in Section II.B.3. a of the proposed preamble. One agency added that this guidance shou ld not be incorporated into the regulation because it will in itially need to be changed and improved frequently. A number of agencies sugg ested that EPA should make supplemental technical assistance avail able to state and local agencies in order to ensure that CAM is imple mented uniformly and in a manner consistent with the issues and policies developed during its formulation. Similarly, an agency association urge d that guidance and sample CAM plans should be developed for as many co ntrol devices as possible to promote national consistency in the dev elopment of CAM plans. Two agencies also supported the standardiza tion of the CAM plan review process through technical guidance, making t he need for time-consuming case-by-case review of proposed plan s the exception to the norm. A local agency also suggested that the C AM technical guidance document should include information on uni ts subject to Subpart C monitoring.

An industry commenter also recommended that guidanc e should be provided to state and local agencies using control device performance indicator ranges as enforceable permit requirements if and only when indicator ranges are used directly to determine com pliance or noncompliance with applicable limitations or standa rds.

Two commenters recommended that a complete technica l guidance document be made available for public comment prior to promulgation of

the final rule. One commenter requested to be included in stakehold er development of guidance.CAM RTC (Part III)

October 2, 1997 Page 354

Response: The Agency intends to coordinate with aff ected parties in the development

of guidance as the current development of rules dem onstrates (e.g., public meetings, distribution of drafts, etc.). To the extent possible within resource limits, the agency will continue this prac tice and provide as much technical assistance to State and local agencies.

Letter(s): American Gas Association (VI-D-154); Eng ine Manufacturers Association

(VI-D-17); Marathon Oil Company (VI-D-185); NESCAUM (VI-D-192); Pennsylvania Department of Environmental Protection ; South Coast Air Quality Management District (VI-D-233); STAPPA/ALAP CO (VI-D-274); State of Illinois EPA (VI-D-183); State of New Jers ey Dept. of Environmental Protection (VI-D-215); State of Tenne ssee Department of Environment and Conservation; Wellman, Inc. (VI-D-2 37)

Comment f: One commenter suggested specifically tha t if EPA has not made a draft of

the technical guidance document listing examples of continuous compliance determination methods available for comm ent prior to promulgation of CAM, EPA should defer to any guidan ce developed by permitting authorities which addresses these issues . The commenter argued that such deferral is necessary because stat es lack the resources to undertake a case-by-case review of every element of a CAM plan. Another commenter recommended that EPA either publi sh the list of continuous compliance determination methods as a ru le or make sure that the availability of draft guidance is widely notice d and that EPA allow for notice and comment prior to finalizing the guidance (including updates to the guidance).

Response: On August 30, 1996 a draft technical guid ance document was placed on

the EPA Technology Transfer Network (TTN). Table 1-2 of this document lists examples of continuous compliance de termination methods as a resource for permitting authorities to use for CAM monitoring. In the future, the table will be impro ved and additions will be made as appropriate. Updates and additions to the technical guidance

document will be announced and also made available on the EPA’s TTN.

Letter(s): Metropolitan Council (VI-D-214); State o f Tennessee Department of

Environment and Conservation (VI-D-243)CAM RTC (Part III)

October 2, 1997 Page 355

Comment g: An agency association suggested that sam ple QIPs should be included in

the CAM technical guidance document.

Response: The Agency disagrees. Implementation of a QIP is, by necessity, a

site-specific response to a particular compliance p roblem. Preparing guidance on specific QIP examples would be inapprop riate. The general description of the QIP in the preamble should suff ice as an outline for a site-specific QIP.

Letter(s): NESCAUM (VI-D-192)

Comment h: The same agency association suggested th at sample reporting forms like

those contained in the Acid Rain Program and the 10 /93 Enhanced Monitoring Guidance Document should be included in the CAM guidance

document.

Response: The Agency believes that State and local agencies should have the

flexibility to describe and define reporting requir ements for monitoring as required under part 70, and in many cases, permitti ng authorities have already done so.

Letter(s): NESCAUM (VI-D-192)

Comment i: One industry commenter urged that EPA de velop a guidance document

for the development of indicator ranges to ensure t hat permitting authorities allow flexibility needed to allow for v ariability of ranges based on design characteristics and site-specific factors . The commenter noted, for example, that the impact of small change s in manifold pressure and manifold temperature on internal combustion eng ine emission rates will vary considerably.

Response: The commenter is correct in that the appl icability of design factors and

historical data will be considered and presented in example monitoring in the guidance. Letter(s): NorAm Gas Transmission Company (VI-D-142 )

Comment j: One industry commenter stated that if EP A does not eliminate the section

64.6(a)(4) requirement to conduct monitoring to det ect any bypass of aCAM RTC (Part III)

October 2, 1997 Page 356

control device or capture system, EPA should develo p guidance describing what types and levels of monitoring are necessary to satisfy this requirement.

Response: The guidance will include such examples.

Letter(s): Eli Lilly Company (VI-D-124)

Comment k: A number of commenters stated that the c urrently available CAM

guidance materials are inadequate. One commenter s tated that EPA has not provided sufficient examples of existing monito ring that would satisfy CAM requirements. The commenter argued that exampl es currently posted on EPA's TTN bulletin board are vague, and t hat EPA has stated that more detailed examples may not be developed un til after the rule is issued, but suitable guidance is necessary to assis t states with the burdensome process of reviewing existing monitoring . Another commenter stated that if the case-by-case approach used in CAM is to work at all, EPA must prepare, with industry input and prior to rule promulgation, model plans for the most common types of control devices. This commenter noted that such plans will greatly r educe the implementation burdens and improve consistency of i mplementation.

Another commenter argued that the examples provided in the 9/11/96 CAM technical guidance document do not demonstrate that indicator ranges provide a reasonable assurance of compliance with applicable

emission limits and standards. The document's fabr ic filter example proposes monitoring the parameters of differential pressure drop over the filter and of stack exhaust opacity, but the commen ter argued that EPA's example of stack test results which show that all a pplicable requirements were satisfied over the proposed indicator ranges d o not justify the conclusion that the unit will not violate applicabl e requirements if kept within the indicator ranges. The commenter noted t hat opacity can vary based on both particulate size and on particulate c oncentration, and noted further that the same reduction in pressure drop co uld indicate either a large hole in one bag or the presence of multiple b adly worn bags, even though very different emissions would result from s uch scenarios.

Another commenter complained that the examples in t he guidance document would be very expensive, such as daily Met hod 9 readings, since many such readings could be required across a facility, such as aCAM RTC (Part III)

October 2, 1997 Page 357

rubber manufacturing plant. Opacity monitoring, an other option, would likewise be expensive, and recording pressure drop data once per shift could be time consuming, especially in large facili ties according to the commenter. Finally, the baghouse example includes two parameters in

combination, which the commenter believed to be ina ppropriate for most cases. This commenter also argued that the text of the guidance document places too much emphasis on testing to est ablish indicator ranges and noted specific places in the document wh ere the flexibility to propose other approaches must be included. Finally , the commenter stated that the draft technical guidance document c ould lead permitting authorities to require overly burdensome corrective action plan such as in the example of hourly observations in the appendix to section 3.

Finally, one commenter stated that to improve the c urrent guidance, EPA should develop training programs for local permitti ng authorities, based on individual source categories, that will help them w ork with sources to develop reasonable, practical and cost-effective mo nitoring programs. Based on commenter's experience working with the Pa rt 70 permit program, local permitting authorities often lack in -house technical expertise with regard to the sources they are regul ating, and are often unfamiliar with the regulations they are implementi ng.

Response: The Agency intends to improve and continu e improving the guidance

document including incorporating experience develop ed through case studies and actual applications of the CAM rule. A s for the commenter’s concerns about pressure drop or visible emissions c hecks of fabric filter operations being insufficient to provide a reasonab le assurance of compliance, the Agency believes that the commenter may have overstated the role that indicator ranges are to pl ay in implementing the CAM rule. The Agency recognizes that some variabil ity in the relationship between the levels of measured operati onal variables and

actual emissions will occur and, as such, the indic ator ranges are not intended as absolute confirmation of compliance, bu t as indicative of a reasonable assurance of compliance given the antici pated range of operations and the design of the control device. T he Agency also requires through the CAM rule that excursions from established indicator ranges trigger a prompt inspection and correction t o any detected problem to ensure that any periods of uncertain pollution c ontrol levels and possible excess emissions are minimized, if not pre vented. For the example of the same pressure drop change indicating a single large bag tear or several small bag tears, the Agency would e xpect that an adequateCAM RTC (Part III)

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monitoring combination of pressure drop, frequent v isible emissions checks, and other operational monitoring would dete ct bag tears before one tear became significantly large or before small er tears developed in more than one bag.

The Agency disagrees that frequent visible emission s checks or monitoring of pressure drop is excessively expensiv e relative to the cost and operation of the control technology or to the b enefits of reducing excess emissions during periods of operation with d efective control equipment. The Agency does agree that certain type s of monitoring approaches (e.g., COMS) are more expensive than oth ers that may be equally effective (e.g., frequent operating paramet er checks) in providing a reasonable assurance of compliance. The rule inclu des a good deal of flexibility in selecting what parameters will be mo nitored and how such monitoring will be conducted. This flexibility is intended to mitigate the cost concerns raised by the commenter.

EPA also disagrees that part 64 places too much emp hasis on performance testing to establish indicator levels. EPA has scaled back the performance testing contained in the 1993 propo sal but believes that generally some minimum amount of performance testin g is necessary to insure that the indicator levels established do pro vide a reasonable assurance of compliance.

Letter(s): Arizona Electric Power Cooperative, Inc. (VI-D-176); Pharmaceutical

Research and Manufacturers of America (VI-D-217); R R Donnelley & Sons Company (VI-D-221); Rubber Manufacturers Assoc iation (VI-D-149); S. Fitzsimmons (VI-D-201)

Comment l: Some commenters urged that EPA clearly e stablish that the CAM

guidance document provides guidance not requirement s. For instance, they believed that EPA should state explicitly that the guidance lists examples of acceptable monitoring and not presumpti ve standard monitoring plans. A commenter added that the docum ent should state that cost-effectiveness may be a factor in determin ing a unit's appropriate monitoring plan. Others added that the document sh ould make it clear that monitoring protocols which are acceptable exam ples of Subpart B monitoring may be neither necessary nor cost-effect ive for Subpart C

sources.CAM RTC (Part III)

October 2, 1997 Page 359

Response: The Agency will make clear that the guida nce document is to provide

examples, not requirements.

Letter(s): American Gas Association (VI-D-154); Coa stal Corporation (VI-D-123);

Colorado Association of Commerce and Industry (VI-D -182); Total Petroleum, Inc. (VI-D-190)

Comment m: One commenter suggested that EPA develop generic flowcharts to be

incorporated into the rule which track the process of determining CAM applicability and the steps which must be taken to satisfy CAM. The commenter explained that such flowcharts would prom ote state-to-state consistency in applicability determination and impl ementation of CAM. The commenter noted that the complex nature of the current CAM draft makes development of such charts difficult and encl oses a sample flowchart for reciprocating engines.

Response: The guidance document will include improv ed flow charts to reflect the

final rule.

Letter(s): LaClede Gas Company (VI-D-198)

Comment n: One commenter cited EPA's request in the draft discussion document for

comment on any existing State data availability req uirements so that EPA can compile an inventory of such requirements in CA M guidance

materials. The commenter stated that it would not be appropriate to use guidelines based on other areas to provide examples for CAM purposes.

Response: The Agency believes that an inventory of existing requirements will serve

as a useful resource for developing monitoring appr oaches. Such an inventory is not intended as an endorsement or a re quirement to use such monitoring for any specific application.

Letter(s): Wisconsin Electric Power Company (VI-D-1 30)CAM RTC (Part III)

October 2, 1997 Page 360

Section 17: General Comments

Section 17.1: CAM Approach

Comment a: Some commenters expressed general suppor t for the CAM approach,

stating that it is preferable to the approach of th e 1993 Enhanced Monitoring proposal. Specifically, two commenters stated that the CAM proposal represents a dramatic improvement over the original Enhanced Monitoring proposal.” One commenter stated that it supports EPA's decision to require monitoring that is indicative o f compliance rather than requiring direct measuring of compliance, such as u se of CEMS. The commenter added that systems such as CEMS are expen sive and difficult to install and use and they provide little, if any, incremental benefit over the use of parametric monitoring systems. Another commenter referred to ways in which CAM improved on Enhanced Monitorin g and complimented EPA on the degree of openness it had s hown in developing the CAM approach, particularly over the last two ye ars. A commenter expressed general support for the CAM approach and the use of a QIP process to respond to excursions. However, the com menter

recommended that the rule be further streamlined to avoid being overly burdensome. One commenter stated that it approved of the general flexibility reflected in some aspects of the rule, specifically the provisions that give permitting authorities permit-specific op tions relative to CAM requirements.

One commenter discussed the goals of the CAM progra m. The commenter recommended that the goals of the CAM pro gram include identifying means to minimize emissions and should not be limited to providing a reasonable assurance of compliance. Th e commenter also recommended that establishing relationships between actual emission rates and control device parameters to be monitored should be a goal of the CAM program. At a minimum, the commenter state d, CAM should require industry groups (with State or EPA oversigh t) to identify the most critical parameters for process and control equipme nt performance.

Two commenters stated that they would prefer a dire ct monitoring approach to the CAM approach. One commenter stress ed the importance of EPA’s decisions on CAM, stating that these decisions are crucial since real monitoring and compliance certif ication bring about improved compliance, which is the most promising so urce for gains in clean air, and this rule will determine the quality of available emissionsCAM RTC (Part III)

October 2, 1997 Page 361

data for years to come. Another commenter stated t hat a rule requiring direct emissions monitoring would allow sources to recoup costs through improved process control, better operating decision s as a result of better information, and the flexibility to operate closer to emissions limits. CAM does not provide these benefits, which would balanc e the paperwork and manpower burdens. Such burdens are higher under th is rule than they would be with direct monitoring. This commenter al so asserted that CAM would result in excessive entanglement of governmen t in private industrial operations, because it would force permitting agenc ies to become intimately familiar with plant operation. The comm enter questioned whether such entanglement is a legitimate function of government. The commenter suggested that direct monitoring of emiss ions data would keep agencies, appropriately, at arms length from p lant operation. In supplemental comments this commenter reiterated its recommendation that part 64 require direct monitoring. The commen ter stated that given the small number of sources subject to Subpart B of the 1996 part 64 Draft according to the partial RIA, monitoring corr elated with actual emissions could be required at little extra cost re lative to the additional

benefits that would be obtained.

Response: The Agency believes that the CAM approach is a reasonable means of

fulfilling the statutory requirement to promulgate rules on enhanced monitoring and compliance certification. The Agenc y disagrees that the goal of the program ought to be more than providing a reasonable assurance of compliance. With respect to direct em issions monitoring, the Agency believes that there is a role for that t ype of monitoring, but that a broad, cross-cutting rule such as part 64 is not the appropriate vehicle for requiring such monitoring. Finally, the Agency does not believe that the rule will involve excessive entanglement of age ncies with industrial

activities. The structure of the rule is based on similar compliance monitoring provisions that already exist under some applicable requirements, such as NSPS and NESHAP requirements. See Section I.C. of the preamble to the final rule for further discussion of these general

issues.

Letter(s): Arizona Electric Power Cooperative, Inc. (VI-D-176); Chemical

Manufacturers Association (VI-D-152); Colorado Asso ciation of Commerce and Industry (VI-D-182); Department of Ene rgy (VI-D-196); Dow Chemical Company (VI-D-120); Fertilizer Institu te (VI-D-253); Independent Liquid Terminals Association (VI-D-178) ; Institute of Clean Air Companies (VI-D-139); Institute of Clean Air Co mpanies (VI-D-247);CAM RTC (Part III)

October 2, 1997 Page 362

Natural Resources Defense Council (VI-D-151); Pacif ic Gas Transmission Company (VI-D-230); Pennsylvania Chamber of Busines s and Industry (VI-D-114); Questar Corporation (VI-D-220); Southwe stern Public Services Company (VI-D-224); State of New Jersey De p. of Environmental Protection (VI-D-215)

Section 17.2: General Comments on the Current Prop osal

Comment a: Some commenters stated that the current CAM draft is an improvement

over the 1995 draft. One commenter stated that wit h some important changes, CAM will be a workable approach to enhance d monitoring and compliance certification. A State agency commenter stated that it

believes the current draft is less resource intensi ve than the original proposal and will be more environmentally beneficia l through the use of properly established and monitored parameters. Two commenters specified that revising the three tier classificati on in the applicability section into two Subparts, EPA streamlined and clar ified the applicability provisions. Another commenter complimented EPA on the degree of openness it has shown in developing the CAM approac h, particularly over the last two years. One commenter noted that the r ule remains ambiguous as to how it will be applied to sources b y local permitting agencies.

Response: No response is necessary to most of these comments. The Agency

believes that the applicability provisions and desi gn criteria in the final rule properly indicate how the rule will be implemented.

Letter(s): Air Products and Chemicals, Inc. (VI-D-1 86); American Electric Power

(VI-D-129); Arizona Electric Power Cooperative. Inc . (VI-D-176); Chemical Manufacturers Association (VI-D-152); Department of Energy (VI-D-196); Independent Liquid Terminals Association (VI-D-178) ; Natural Gas Pipeline Company of America (VI-D-118); Pennsylvani a Department of Environmental Protection (VI-D-174); STAPPA/ALAPCO (VI-D-179)

Comment b: Some commenters stated that the current draft is less favorable than the

direction EPA appeared to be taking in the Septembe r 1995 draft. Commenters stated that they had supported the origi nal CAM concept of a shift from direct emissions monitoring to a progr am designed to ensure that good O&M practices were followed. However, th ey stated that the

current rule is more akin to the Enhanced Monitorin g proposal with wideCAM RTC (Part III)

October 2, 1997 Page 363

applicability to units having little environmental significance and with stringent thresholds that trigger violations rather than corrective action. Another commenter stated that improvements in compl iance assurance can be achieved by fully implementing existing moni toring programs. The

draft rule therefore does not "focus on situations where existing requirements fail to assure ongoing compliance . . ." as stated in the Sept. 1995 preamble.

Some commenters also stated that EPA's intent, as e xpressed in the preamble or otherwise, is often not reflected in th e language of the proposed rule itself. Two commenters stated that the CAM concepts set forth in the preamble of the proposed rule, of focusing on improved control technology, operation and maintenance, and reduced burdens on small sources are undermined by the draft rule's en forcement-related concepts that result in much greater source burden and, when coupled with the credible evidence approach, expose the ind ustry to unwarranted enforcement activity. These commenters also stated that the preamble provides three criteria for determining when equipm ent that in some cases

would be considered a control device is more akin t o an inherent part of the process, and thus exempt from Subpart B require ments. The commenters agreed that these criteria are appropria te but noted that the

rule itself contains no mention of these criteria. As another example, the commenters stated that the preamble expresses an in tent that not all deviations constitute permit violations; however, t his intent is contravened by the rule's authorization of states to make devia tions enforceable regardless of whether they constitute violations of the underlying

standard.

In support of their argument that the rule does not reflect EPA's intent as expressed in the preamble or other statements, the same commenters noted that the preamble characterizes the CAM appro ach as providing a reasonable assurance of compliance, but the rule te xt departs from that goal in such "penalty box" provisions as requiring compliance certifications to include QIP periods as deviations and providing that a second QIP in a permit term constitutes a direct violation of CAM. The commenters added that throughout its discussions with industry regarding CAM, EPA has supported a shield from credible evidence enfor cement to sources that abide by their CAM plans. In the discussion o f CAM's relationship to credible evidence and enforcement issues (sections I.D.1 and I.D.3.a of the document accompanying the 1996 part 64 Draft), EPA states that units operating within their CAM parameters will be presumed to be inCAM RTC (Part III)

October 2, 1997 Page 364

compliance and not targeted for enforcement proceed ings. The text of the rule itself does not provide any statement of t hese protections or a

CAM shield. The commenters further stated that Sec tion II.G of the draft preamble states that EPA has limited the CAM elemen ts that have to be incorporated in a part 70 permit. In contrast, the actual rule language requires that a wealth of detail be incorporated in to the permit.

Another commenter, stating that the CAM rule does n ot reflect EPA's intent as expressed in the preamble or other statem ents, objected to the use throughout the rule of the terms "practicable" and "feasible." These words are typically interpreted by courts to mean " capable of being done" rather than meaning "practical" and "reasonable," w hich commenter

believes to be EPA's intent. The use of these term s means that courts will give almost no consideration to cost so the te rms "practical" and

"reasonable" should be used instead.

Some commenters recommended that the CAM rule be re drafted to clear up ambiguities. One commenter stated that the CAM rule is somewhat ambiguous in its construction, has multi-tiered cro ss-references, and could be better organized. The commenter added tha t it is understandable that the rule's draftsmanship has su ffered because it has been subject to considerable political and substant ive revision. The CAM technical guidance document is extremely clear, but it cannot substitute for clarity in the rule itself. The commenter stre ssed the importance that the rule be understood because the rule represents an important step in air pollution control. Two commenters provided min or edits to several sections to clarify the rule's intent.

Response: As discussed above in Sections 1-12 (Part III) of this document, the final

rule includes a number of rule changes that both cl arify the intent and process for implementing part 64. The sections hav e been reorganized to track the process for implementing the rule. Th is restructuring has improved the rule's organization. As discussed in sections 6 and 8 (Part III), the process for establishing indicator ranges has been clarified consistent with EPA's stated intent for the CAM app roach. The Agency disagrees that it has supported a shield against en forcement actions for sources that meet part 64. This was not presented as an option in either the 1995 or 1996 part 64 drafts. For other comment s that oppose specific provisions in the 1996 part 64 Draft, see the responses included

for such comments in the relevant substantive secti ons of this document.CAM RTC (Part III)

October 2, 1997 Page 365

Letter(s): Chemical Manufacturers Association (VI-D -152); Dow Chemical Company

(VI-D-120); Eastman Chemical Company (VI-D-173); Ge neral Electric Company (VI-D-156); Phillips Petroleum Company (VI- D-131); Specialty Steel Industry of North America (VI-D-143); State o f Washington Department of Ecology (VI-D-167); Steel Manufacture rs Association (SMA) (VI-D-144); Texaco Environment Health & Safet y (VI-D-199); Texas Title V Planning Committee (VI-D-188)

Section 17.3: Complexity and Clarity of CAM

Comment a: Some commenters asserted that the CAM ru le is unnecessarily complex.

Two commenters recommended that the rule be simplif ied so that sources and States can understand and follow the process fo r developing and implementing CAM monitoring. Another commenter sta ted that the draft CAM rule has strayed from the original concept of f ocusing on good operation and maintenance of control equipment by f ocusing instead on acceptable numerical indicator ranges, deviations f rom which would likely be considered violations. Under this approach, sho rt term and sometimes continuous measurements are inappropriate ly expected to serve as a proxy compliance demonstration for perio dic compliance

demonstrations. The commenter concluded that the r esulting approach is overly complex. Two commenters stated that the current CAM draft utilizes many undefined terms and contains numerous cross-references to other rules and other documents, resulting in an ex tremely complicated rule that leaves room for varying interpretations f rom State to State. These commenters added that there will be no way to predict how CAM will be implemented in any given State. The commen ters urged EPA to simplify the rule, clarify existing definitions and add further definitions in order to minimize potential variations in interpret ation. One commenter stated that nothing in the legislative history sugg ests that Congress intended for the rules to be as prescriptive as dra fted, and recommended that EPA give States more leeway in determining the appropriate level of monitoring and how to interpret deviations from ind icator ranges. A commenter also expressed the belief that EPA has un derestimated the cost and burdens that are likely to occur as a resu lt of CAM. One commenter stated that because compliance with a nd enforcement of complex regulations is difficult and expensive, EPA should promulgate the simplest rule that meets the requirements of sectio n 114(a)(3). The commenter further stated that CAM is more complex t han a requirement to directly monitor emissions. A commenter from th e natural gas industryCAM RTC (Part III)

October 2, 1997 Page 366

stated that CAM will create costly new applicable r equirements that are no different or less substantive than work practice st andards currently used. The commenter added that EPA has incorrectly assume d that current programs do not require and the industry does not p ay appropriate attention to control device performance. The comme nter added that EPA should at least provide substantial evidence of suc h inadequacies before imposing burdensome new requirements on the industr y.

One commenter, arguing that the CAM rule is unneces sarily complex, stated that the CAM proposal is an example of EPA m icro management, which places the burden of compliance on applicants and State agencies. The commenter summarized the requirements of the C AM proposal as follows: a Title V permit applicant is required to divide its site into various emissions units and analyze each unit on a pollutan t by pollutant basis. An applicant must develop and gain approval of a CA M plan for each

combination of emission unit with a control device, applicable requirement and regulated pollutant. The burden is on the appl icant to justify in writing that its proposed CAM plan will satisfy the requirements of the rule. The applicant is then subject to both technical ju dgments, which may vary from an applicant's applicability analysis, an d inconsistent determinations by permit writers. Finally, the Sta te agency and its permit writers must go through burdensome and time-consumi ng case by case

reviews.

Response: The Agency has restructured the final rul e to simplify and clarify

implementation of part 64. The final rule does con tinue to rely on part 70 definitions, as well as implementation on a polluta nt-specific emissions unit basis. However, the rule only applies to part 70 major sources. Such sources should have a clear understanding of p art 70 definitions, and are required to submit applications that identi fy emissions units and air pollution control equipment. Thus, the Agency believes that reliance on these part 70 concepts will streamline implement ation, not add complexity as some commenters suggested.

EPA does not believe that the alleged simplicity of requiring direct emission monitoring is a justification for abandoni ng the CAM approach. EPA moved to the CAM approach is much less costly t han direct emission monitoring. Moreover, for units with control techn ology, EPA believes that forcing sources to pay attention to such techn ology, as the CAM approach does, can be more effective than direct em ission monitoring for reducing emissions because monitoring control techn ology will oftenCAM RTC (Part III)

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identify the reason for excess emissions. If compl exity is a concern for source owners and operators as to CAM, they have th e option of adopting direct emissions monitoring to satisfy part 64. E PA also does not agree that CAM will create costly new applicable requirem ents that duplicate existing work practice standards. First, part 64 w ould apply to work practice standards only to the extent that a source owner or operator relied upon control technology to comply with the s tatute. Second, if requirements for monitoring such control technology already exist, these monitoring requirements can be part of the CAM plan and thus should not impose major new costs. As to whether there is a n eed for enhanced monitoring of major sources, EPA would note that Co ngress has already made that determination. Finally, EPA disagrees wi th the commenter who suggests that CAM is too complex because of the allegedly burdensome case-by-case review by the permitting au thority. Part 64 was designed to give source owners and operators fl exibility in establishing monitoring plans and does so by establ ishing general criteria for monitoring and not, as the commenter suggested, through EPA micromanagement. However, because part 64 is not o verly prescriptive and gives source owners and operators broad latitud e, of necessity there must be a case-by-case review.

Letter(s): Centerior Energy (VI-D-134); Clean Air I mplementation Project (VI-D-153);

Engine Manufacturers Association (VI-D-117); Gas Pr ocessors Association (VI-D-163); Institute of Clean Air Comp anies (VI-D-139); LaClede Gas Company (VI-D-198); Ohio Chamber of Com merce, et. al. (VI-D-160); Rubber Manufacturers Association (VI-D- 149); UCAR Carbon Company, Inc. (VI-D-122)

Section 17.4: CAM Rulemaking Process

Comment a: Some commenters expressed general suppor t for EPA’s efforts in the

CAM rulemaking. Two commenters commended the EPA s taff for their extensive efforts to solicit the viewpoints of all interested stakeholders during the development of the CAM program. Two com menters also stated that they support the general approach set f orth in the CAM rule. One commenter expressed support for the goals of th e program, but believes that the relationship of the monitoring to compliance needs to be strengthened. A State agency commented that it fou nd littleCAM RTC (Part III)

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objectionable in the proposed rule and noted that, although the CAM rule has been long in the making, "the time has not been wasted."

One commenter opposed the stakeholder process that EPA has used, stating that the process has given unfair treatment to selected groups. The commenter stated that using a front table with seating for others in the back has unfairly given weight to the views of a small group of participants at the disadvantage of others. The co mmenter recommended that EPA return to standard public meet ings where everyone is accorded the same ability to be heard.

Response: The Agency has attempted to provide as mu ch opportunity as possible for

interested parties to participate in the part 64 ru lemaking process, and

believes that these efforts have been successful. The Agency believes that the public meeting formats effectively stimula ted discussions while still allowing anyone that wished to be heard to pr ovide input to the Agency.

Letter(s): Clean Air Implementation Project (VI-D- 153); NESCAUM (VI-D-192);

Pacific Gas Transmission Company (VI-D-230); Philli ps Petroleum Company (VI-D-131); The Society of the Plastics Ind ustry, Inc. (VI-D-148); State of Washington Department of Ecology (VI-D-167 )

Section 17.5: Other General Concerns

Comment a: One commenter argued that CAM creates a conflict between public

access to emissions data and the regulated communit y's right to protect

trade secrets. The commenter stated that section 1 14(c) of the Act, which requires that records, reports or information obtained under section 114(a) shall be available to the public, makes "met hods or processes entitled to protection as trade secrets" confidenti al but excludes "emission data" from such confidentiality. For some sources, process data that constitutes confidential business information may b e the only emission

data collected under CAM. The commenter added that the use of direct emissions measurement technologies and methodologie s would allow full disclosure of emission levels without compromising the confidentiality of

trade secrets.CAM RTC (Part III)

October 2, 1997 Page 369

Response: Data on excursions or exceedances cannot be protected as trade secrets

under the Act. Owners or operators will have to ev aluate trade secret concerns in developing and proposing monitoring to satisfy part 64.

Letter(s): Institute of Clean Air Companies (VI-D-1 39)

Comment b: A commenter argued that CAM and other EP A regulations and actions

favor electric utilities over alternative energy pr oviders and other sources. The commenter stated that the Act's permit structur e favors electric utilities, the worst polluters. The structure is s uch that the more a stationary source pollutes, the less it pays per un it. Lignite-fueled electrical generating plants pay as little as a few cents per ton of pollutant emitted while sources, such as natural gas utility customers, pay $25 per ton up to 4,000 tons. The commenter provided graph s based on Texas

and Missouri emissions inventories. The commenter also stated that the CAM Subpart B applicability provisions apparently a ssume that a unit will operate for 8,760 full-load run-hours per year and do not take into account emissions controls. This places smaller engine-dri ven systems at a competitive disadvantage, because such systems norm ally run for far less than 8,760 hours per year. The commenter provided a table showing average size and yearly hours of operation for such systems. The commenter further stated that EPA should not attemp t to regulate small stationary sources, such as alternative energy prov iders, out of business so that regulatory efforts can be focused on the re maining large sources. The commenter stated that the contemplated EPA stan dards for internal combustion engines are an example of this approach. Such an approach could have dangerous environmental consequences. T he commenter enclosed charts illustrating projected increases in CO 2 from traditional coal-burning electric utilities and the comparative advantage in emissions reductions of using natural gas-fueled end-use tech nology.

Finally, the commenter stated that control or monit oring of NO

x may be inappropriate in some circumstances. The commenter cited a National Academy of Sciences Report, which suggests that dec reasing NO

x can actually increase ozone where there is a low VOC/NO

x ratio. The

commenter stated that NO

x control and monitoring may therefore not be appropriate for ozone non-attainment areas where su ch a ratio exists.

The commenter noted that the Missouri DNR has submi tted a waiver application for St. Louis to EPA reflecting this ap proach, and suggested that CAM also reflect this approach.CAM RTC (Part III)

October 2, 1997 Page 370

Response: Most of the commenter's concerns are beyo nd the scope of this

rulemaking. However, the Agency notes that the fin al rule applies only to emissions units that are subject to applicable requ irements and are required to install a control device to achieve com pliance. Thus, many of the types of stationary sources discussed by the co mmenter are unlikely to rely on control devices and thus will not be sub ject to part 64.

Letter(s): LaClede Gas Company (VI-D-198)

Section 17.6: Comments on Credible Evidence Rulema king

Comment a: Several commenters expressed general opi nions on the credible evidence

rulemaking. One commenter expressed support for EP A's position that, under the CE rule, the plaintiff would have the bur den of showing that, if a compliance test had been conducted during the time period covered by

the evidence, the test would have shown a violation . Another commenter stated that it supports the use of data other than reference test method data for enforcement actions arguing that using oth er credible evidence will provide additional flexibility in ensuring tha t sources are complying with applicable emission limits. A State agency co mmenter agreed that EPA has the authority to use credible evidence to e nforce standards

under the 1990 CAAA and noted that the use of such information for enforcement purposes has always been allowed under the State's applicable statutes.

A utility commented that the credible evidence rule will have a chilling effect on the regulated community and will discoura ge additional monitoring and recordkeeping. Other commenters obj ected to the use of

credible evidence to determine actual violations of the Act; one

commenter added that it considers the credible evid ence approach to be unwise, unnecessary, overreaching, and redundant in light of EPA's other enforcement powers. Another commenter suggested li miting credible evidence to "any scientifically verifiable evidence ."

A commenter noted that removing CE from the CAM con text does not solve any of the problems industry has with the cre dible evidence initiative. The commenter also objected to the lac k of full notice-and-comments in the promulgation of CE. Ano ther commenterCAM RTC (Part III)

October 2, 1997 Page 371

cited to the Unitek

decision as an example of how opening the door to credible evidence will allow any information, regar dless of its comparability to test data, to be used to prove noncompliance as long as it is admissible

under the Rules of Evidence. This commenter stated that if EPA means for credible evidence to be something more than ord inary evidence, it must clearly say so.

One commenter stated that the credible evidence rev isions are based on a misreading of section 113 which pertains to penal ty assessment criteria that may be used once it has been determined that a violation occurred. This commenter argued that evidence other than the test method can be

used, if at all, to determine the duration of a vio lation which is merely one of seven factors in penalty assessment, and that le gislative history is not relevant since the statutory language is clear. Th e commenter referred to previous discussion of this point by another commen ter.

One commenter recommended defining compliance metho ds that are considered credible evidence for an underlying requ irement either by rule and/or in a permit, so that the regulated community , the public, and permitting authorities know which compliance method s are associated with an underlying requirement.

One commenter noted that the potential to use opera ting parameters as credible evidence of a violation is suspect because of the often weak correlation of parameters and emissions. The comme nter referred to

detailed correlation studies conducted at the comme nter's sewage sludge incinerators (see detailed summary under section 6. 1 (Part III)). The commenter also noted that the egregious acts which led to the violations

cited in the Sierra Club v. PSC case left absolutely no doubt that the facility was in violation, but that in most cases w here credible evidence might apply, the cases of noncompliance are not so clear cut. Some commenters expressed support for EPA's suggest ion in the preamble to the 8/2/96 CAM proposal that the categ ories of "presumptively credible evidence" be eliminated fro m the credible evidence revisions to 40 CFR Parts 51, 52, 60 and 6 1. Two commenters expressed support for the elimination of presumptiv ely credible evidence. One of these commenters added that, although it is not in favor of the credible evidence revisions, the commenter agrees t hat it is not appropriate to presume that CAM excursions are cred ible evidence of a

violation.CAM RTC (Part III)

October 2, 1997 Page 372

One commenter requested that EPA confirm that credi ble evidence could not be used to show a violation when the time perio d covered by the evidence is less than that required to conduct the test or when the source is operating under conditions that are outside thos e defined in the test

method.

A commenter expressed concern with the impact that the credible evidence rule will have on compliance with hourly e mission rates derived from AP-42 emission factors which have been incorpo rated into many SIPs. The commenter suggests that for such emissio n limits which do not specify an averaging period, it would be approp riate to assume a one-year period. The commenter expressed a similar concern about the lack of startup, shutdown or malfunction excused pe riods in many states which becomes an important issue when the credible evidence rule is

considered.

Finally, several commenters incorporated by referen ce comments that they had submitted to the docket in response to the March 1996 credible evidence paper.

Response: No response to these comments is necessar y because these comments

are directed at the credible evidence rulemaking pr omulgated on February 24, 1997 (62 FR 8314). See the Response to Commen ts Document for the Credible Evidence Rule (docket item A-91-52-V-C -2) for a response to comments raised in the context of that rulemaking. To the extent any of these comments concern the relationship of part 64 to the CE rule, see the response to comments under Section 14.2 (Part I II) of this document.

Letter(s): American Furniture Manufacturers Associa tion (VI-D-203); Chemical

Manufacturers Association (VI-D-152); Council of In dustry Boiler Operators (VI-D-263); Department of Defense (VI-D-2 09); Georgia Department of Natural Resources (VI-D-193); General Electric Company (VI-D-156); Integrated Waste Services Association ( VI-D-147); Kennecott Corporation (VI-D-119); Metropolitan Council (VI-D- 214); Mobil Corporation (VI-D-115); NorAm Gas Transmission Comp any (VI-D-142); Public Service Company of Colorado (VI-D-219); Rub ber Manufacturers Association (VI-D-149); Specialty Steel Industry of North America (VI-D-143); STAPPA/ALAPCO (VI-D-179); Steel Manufac turers Association (SMA) (VI-D-144); Southwestern Public S ervices Company (VI-D-224); Texas Natural Resource Conservation Com missionCAM RTC (Part III)

October 2, 1997 Page 373

(VI-D-189); Texas Utilities Services, Inc. (VI-D-12 1); United Technologies Corporation (VI-D-251)

Section 17.7: Benefits and Burdens of CAM Rule

Comment a: Some commenters stated that CAM will req uire excessive monitoring that

provides little benefit to the environment. Two co mmenters added that, contrary to OAQPS's goal of creating a cost-effecti ve rule which provides reasonable assurance that Title V sources comply wi th permit terms and applicable requirements, the current CAM draft requ ires the regulated community to engage in the costly collection and an alysis of monitoring

data that is of little use to determine whether sou rces are actually complying with environmental standards. Another co mmenter stated that the value of the CAM rule is questionable in light of heightened compliance oversight through the Title V program an d new compliance tools resulting from the 1990 CAA Amendments. In t he 1990 Amendments, Congress increased the civil and crimin al penalties for violations, gave EPA administrative penalty authori ty, added a field citation penalty program, etc. Although CAM implem ents the periodic monitoring requirement of Title V, it also grafts a significantly more burdensome monitoring and reporting overlay onto th e Title V program.

One commenter added that EPA has not shown that the re is an endemic problem with the adequacy of current monitoring, or that a major new program is needed to fix any such problem. As dem onstrated in the docket over the past few years, the existing progra ms are designed with appropriate monitoring and where those fail due to inadequate monitoring, they are self-correcting.

Some commenters noted that the CAM rule will be a s ignificant burden. An industry association stated that one facility ha d estimated the cost for maintaining a CAM program in excess of $50 thousand per year. Another commenter stated that CAM will result in in creased program fees,

but will have little environmental benefit.

One commenter argued that there is no demonstrated need for the CAM

rule. The commenter stated that an additional moni toring rule would not be needed if current regulatory programs that requi re monitoring and data-gathering were fully implemented. The comment er added that this is supported by the EPA white paper on "paying atte ntion" to good O & M practices, which concludes that the actual use of e xcess emissions reports which already must be submitted to EPA coul d accomplish manyCAM RTC (Part III)

October 2, 1997 Page 374

of the goals of CAM. In supplemental comments, one commenter questioned the value of applying CAM requirements t o sources that already conduct continuous "excess emissions" monit oring since EPA has already promulgated the CE rule to ensure that such data are available for

emission limit enforcement. The commenter also sta ted that the CAM rule is unnecessary because companies have existing voluntary programs to properly operate and maintain control devices. These programs exist because companies already have incentives, such as increasing the life of a control device, to conduct good O & M. The comme nter noted that EPA examples show that good O & M can lead to direc t cost reductions and a reduction in upsets that result in public or regulatory scrutiny. The commenter urged EPA to consider that customer deman ds and organizations like the ISO can create additional in centives for such voluntary programs, like CMA's "Responsible Care" p rogram. Such programs can satisfy the objectives of CAM even if they do not cause the

same results as CAM.

In support of its argument that there is no demonst rated need for the CAM rule, a commenter stated that EPA has acknowledged that it is better to fill gaps in regulatory monitoring requirements through individual rulemakings than through a broad rule like CAM through EPA's ex empting NSPS and NESHAP adopted after 1990 from CAM. As proposed, t he CAM rule will only require permitting authorities to revisit old rules. This is unnecessary because NSPS must be revised at least every eight y ears. Since all pre-1990 NSPS will be re-examined by 1998, these st andards can be revised before the CAM program can be fully impleme nted. NSPS standards also already require control device param eter monitoring, excess emission reports, and subject sources to a g eneral duty provision. In states with NSR programs, almost all activities subject to NSPS are also subject to NSR permitting and a BACT demonstra tion. NESHAPs

do not need to be re-examined under CAM because Par t 61 standards already include monitoring requirements and a gener al duty provision. NESHAPs are also being largely replaced by MACT sta ndards.

Finally, in support of its argument that the CAM ru le is unnecessary, a commenter stated that it is unnecessary to subject SIP provisions to CAM requirements because SIPs should already be designe d to allow areas to attain the NAAQS. Any SIP provision that does not achieve this goal should be revised to address monitoring and O & M c oncerns. The commenter cited examples from EPA's "paying attenti on to good O & M" document of SIP provisions from the following State s or regions thatCAM RTC (Part III)

October 2, 1997 Page 375

satisfy the goals of the CAM program: Texas, the Ba y Area Quality Management District, Ohio, Georgia, Florida, Indian a, Wisconsin, and Oregon. The commenter noted that States have compl ete discretion to develop programs necessary to satisfy the NAAQS and that EPA can reject inadequate SIP submittals but cannot require a wholesale revision of SIP provisions as contemplated under the CAM rul e. The commenter cited a number of cases limiting EPA's ability to i nterfere with or circumvent approved SIP provisions, including Train v. NRDC , Bethlehem

Steel v. Gorsuch , and U.S. v. Riverside Labs

.

Some commenters stated that the proposed CAM rule l acks the flexibility to allow States to continue pre-existing State prog rams that provide the same outcome as CAM. One State agency commenter ex pressed support for many of the principles of the CAM rule, but noted that many of these principals overlap with the State's own progr am. The CAM rule does not allow States to run such pre-existing prog rams independently of CAM and therefore results in redundancy and an incr eased administrative burden for the State agency and the regulated commu nity of the State. The commenter provides the following examples of ov erlap between the State program and CAM: (1) Minn. R. 7011.0075, Cont rol Equipment General Requirements, requires sources to submit th e same general information relating to the monitoring of control e quipment performance and reporting of deviations as must be submitted in a CAM plan; (2) The

State has an established mechanism to handle noncom pliance of control equipment operation. Minnesota rules require facil ities to report deviations from monitored control equipment paramet ers semiannually. The MPCA Compliance Determination Unit then reviews these deviation reports to determine compliance and makes recommend ations on the appropriate follow-up to the Enforcement Unit. The CAM rule's QIP requirements merely address the same problems while adding an administrative burden; (3) The QIP requirements als o limit State options of interpreting when a violation occurs and when the p ermitting authority should take action; and (4) State requirements rela ting to the reporting of planned shutdowns, breakdowns and failures of contr ol equipment (e.g., Minn. R. 7019.1000) satisfy CAM requirements to no tify permitting authorities of problems with control equipment. Th e commenter proposed that CAM be revised to allow States the op portunity to selectively incorporate the elements of CAM needed for their programs and suggests that this procedure could be administe red by EPA regional offices. Also, an industry commenter from Californ ia noted that many elements of the CAM rule are unnecessary for Subpar t B units inCAM RTC (Part III)

October 2, 1997 Page 376

Southern California because facilities containing s uch units are already required to show that they comply with the stringen t air quality regulations implemented by local air pollution control district s.

Response: The Agency disagrees with comments that s uggest that part 64 is

unnecessary. Congress has mandated in section 114( a)(3) that EPA impose enhanced monitoring and compliance certifica tion requirements. Thus, Congress has already settled the question of whether there is a “demonstrated need” for enhanced monitoring and com pliance

certifications. In addition, the final rule focuse s on units that rely on control equipment to remain in compliance, which pr evious studies have shown to be significant compliance problems. See t he documents referenced in the final preamble on this subject. With respect to existing State programs, the final rule should allow existin g approaches that are similar to part 64 to be used in satisfying part 64 . In the Minnesota example, the submittal and reporting requirements o f part 64 should be able to coordinate with the existing State provisio ns. The QIP provisions in the final rule have been modified in response to concerns similar to

those revised in those comments.

Letter(s): Alyeska Pipeline Service Company (VI-D-1 26); American Furniture

Manufacturers Association (VI-D-203); ASARCO Incorp orated (VI-D-187); Can Manufacturers Institute (VI-D-181); Coalition f or Clean Air Implementation (VI-D-249); Coastal Corporation (VI- D-123); Independent Liquid Terminals Association (VI-D-178); Minnesota Pollution Control Agency (VI-D-197); Public Service Company of Colora do (VI-D-219); Southern California Gas Company (VI-D-222); Tenness ee Valley Authority (VI-D-162); Texas Title V Planning Commit tee (VI-D-188); Utility Air Regulatory Group (VI-D-252)

Section 17.8: Delegation of Authority to States

Comment a: Some commenters stated that the CAM rule delegates the resolution of

too many important issues to the States. For examp le, some commenters pointed out that States have complete di scretion to determine which parameters are appropriate to be mo nitored, to identify appropriate indicator ranges, and to determine whic h, if any, of the resulting conditions will be enforceable permit ter ms. The broad delegation to the States will cause inefficiencies and create inconsistent CAM requirements among States. Those inconsistenci es could result inCAM RTC (Part III)

October 2, 1997 Page 377

different requirements for facilities that are part of the same company

located in different States and could lead to a com petitive disadvantage for companies in States with more stringent and cos tly requirements. A commenter recommended that EPA enhance through rule making the particular monitoring requirements that it deems in adequate. Under the draft CAM rule "standards" will no longer be standa rds at all since stringency will vary from State to State and from p oint to point. Likewise,

the commenter recommended that States use rulemakin g to enhance monitoring for SIPs that are not capable of demonst rating compliance. According to this commenter, the CAM rule, if promu lgated, should only be a temporary measure in effect until changes to u nderlying rules can be

made.

Some commenters cited specific provisions where the CAM rule improperly leaves the resolution of important issue s to the States: § 64.2(a)(2), where States may apply Subpart B to any other pollutant-specific emissions unit they deem appropr iate; § 64.3(b)(2)(ii)(B), where States may establish, consistent with existin g authority, that an excursion from an indicator range is a failure to c omply with the source's part 70 permit; § 64.7(a)(5), in which States are g iven discretion to add any other elements to CAM plans; § 64.9(a)(3), wher e permitting authorities may include all CAM plan monitoring ele ments deemed necessary in a Subpart C unit's part 70 permit; § 6 4.9(c)(1), where permitting authorities may require sources to base monitoring on a performance test instead of relying on engineering assessments and manufacturer's recommendations as justification for the monitoring; § 64.9(c)(2)(iii), where permitting authorities have the discretion to determine whether no monitoring is appropriate for certain insignificant activities; § 70.6(c)(5)(iii)(D), in which certific ations are to be based on whatever facts the permitting authority may require ; and the treatment of insignificant activities (as defined in State Part 70 permit programs) under

the CAM rule. One commenter added that States are currently determining what monitoring is required under Part 70 periodic monitoring requirements in their Title V programs. Although t he CAM rule will remove these requirements, there will be inconsiste ncies between the developed State programs and the final CAM requirem ents.

In support of their argument that the CAM rule dele gates the resolution of too many important issues to the States, some comme nters stated that fundamental principles of constitutional law requir e that the CAM regulations do not exceed the grant of statutory au thority in sectionsCAM RTC (Part III)

October 2, 1997 Page 378

114(a)(3) and 504(a) and (b). EPA cannot avoid thi s constraint by subdelegating its rulemaking authority to State and local agencies. The

rule must therefore establish standards that act to limit those agencies in establishing requirements under CAM. These comment ers further stated that EPA has no mechanism for reviewing and approvi ng the States' creation of federally-enforceable requirements thro ugh CAM, because the draft CAM proposal does not require EPA review and approval of States' CAM programs. The commenter recommended that the f inal rule either include such a mechanism or provide that any additi onal requirements beyond the minimum required by CAM are State-only r equirements. Finally, the rule raises State constitutional issue s in that it could be interpreted to grant State agencies legislative rul emaking authority that must first be granted by a State legislature, not a federal agency.

Response: The final rule establishes specific crite ria to be achieved to satisfy part 64.

If an owner or operator meets these criteria, the owner or operator has satisfied part 64. If the owner or operator believ es that a permitting authority has improperly disapproved monitoring, th e owner or operator may appeal that action through the appropriate mech anisms established under title V permit programs. Nearly all of the 1 996 part 64 Draft provisions cited specifically by the commenters are not included in the final rule (including §§ 64.2(a)(2), 64.3(b)(2)(ii) (B), 64.7(a)(5), 64.9(a)(3), 64.9(c)(1), and 64.9(c)(2)(iii)). The treatment of insignificant activities also is not addressed in the final rule. The only specifically cited provision that is included in the final rule, § 70. 6(c)(5)(iii)(D), is a provision that exists in part 70 as originally promulgated in July 1992. Therefore, the Agency disagrees that the final rule either imp roperly delegates rulemaking to the States or interferes with title V implementation.

Letter(s): American Automobile Manufacturers Associ ation (VI-D-157); American

Public Power Association (VI-D-158); BP Oil Company (VI-D-113); Eli Lilly Company (VI-D-124); General Electric (VI-D-156); Ke nnecott Corporation (VI-D-119); National Environmental Development Asso ciation (VI-D-169);

Pharmaceutical Research and Manufacturers Associati on (VI-D-217); State of New Jersey Dept. of Environmental Protecti on; UCAR Carbon Company, Inc. (VI-D-122)

Section 17.9: Implementation Concerns and Recommen dationsCAM RTC (Part III)

October 2, 1997 Page 379

Comment a: One commenter expressed concerns about h ow to effectively implement

CAM in certain situations. The commenter asked how CAM should be implemented for particulate matter during excursion s that occur due to exempted emissions (i.e., sootblowing). The commen ter noted that some States have a separate particulate standard for soo tblowing, and stated that CAM will apparently require special recordkeep ing and tracking for such exempted operations. The commenter also asked how a source would implement CAM for area-wide fugitive emission s and site-specific sources like conveyor belts, which may have opacity limits under Title V.

The commenter stated that it is unclear how a sourc e would implement CAM for a work practice standard such as ash unload ing from storage

silos.

Response: For fugitive emissions and ash unloading, the final rule likely will not apply

unless the emissions are captured and routed to a c ontrol device. For exempted periods, such periods may result in excurs ions or exceedances that would have to be reported, as is done currentl y for excess emission reporting under 40 CFR part 60. If a separate stan dard applies, the owner or operator could use a separate indicator ra nge/exceedance level for such periods, but would have to document that t he separate range/exceedance level was applied only during appr opriate periods. Letter(s): Southern Company Services (VI-D-171)

Comment b: A commenter urged EPA to recognize in th e CAM rule the differences

between bulk liquid storage terminals and other typ es of sources, namely that these terminals operate only intermittently an d on erratic schedules. The commenter recommended that the rule specificall y recognize the nature of the business, not be required during peri ods when a product is not being stored, piped, or transferred, and be mor e flexible to accommodate the vast differences in facility design and operations.

Response: Because such operations often do not rely on control devices, EPA does

not expect that the rule will significantly impact such facilities.

Letter(s): Independent Liquid Terminals Association (VI-D-178)

Comment c: One commenter recommended that the rule state that CAM activities are

eligible for funding under the Title V fee provisio ns. The commenter explained that State and local agencies will be dee ply involved in carryingCAM RTC (Part III)

October 2, 1997 Page 380

out the CAM program and will therefore have to comm it a significant level of resources to CAM. These agencies would benefit from a statement in the rule establishing that CAM activities are eligi ble for funding under Title V fee provisions.

Response: Because the review of part 64 monitoring will occur in the context of part

70 implementation, in the same manner as the review of periodic monitoring under § 70.6(a)(3), the costs associated with part 64 implementation are covered by title V fees. The Ag ency does not believe that any specific rule language is necessary.

Letter(s): State of Illinois EPA (VI-D-183)

Comment d: A commenter suggested that CAM would be most efficiently implemented

when a new facility is constructed so that monitori ng can be incorporated into the facility design. The commenter added that implementing CAM at existing sources, especially in the plastics indust ry, will have tremendous

burdens. The same commenter recommended that CAM m ake clear that if a State imposes monitoring more stringent than r equired by CAM, such monitoring is State-only, not federally-enforceable

.

Response: Existing sources are subject to part 64. Those sources are required to

have an adequate basis to demonstrate and certify c ompliance with applicable requirements. Monitoring more stringent than part 64 may be state-only or federally-enforceable. That determin ation will depend on the legal authority relied on by the State to requi re such monitoring.

Letter(s): The Society of the Plastics Industry, In c. (VI-D-148)

Comment e: A commenter recommended that CAM allow P art 75 monitoring

requirements under the Acid Rain Program to superse de Part 60 requirements, provided that the DAHS computes compl iance using appropriate averaging times.

Response: This suggestion is beyond the scope of pa rt 64. However, see the recent

proposal to coordinate part 60 and part 75 reportin g under proposed revisions to 40 CFR part 60, subparts Da and Db (62 FR 36948, July 9, 1997).CAM RTC (Part III)

October 2, 1997 Page 381

Letter(s): Niagara Mohawk (VI-D-168)October 2, 1997

APPENDIX III-A

LIST OF COMMENT LETTERS FOR RESPONSE (Part III):

EPA AIR DOCKET A-91-52

SORTED BY ORGANIZATION

Commenting Organization Docket #

Air Control Techniques, P.C. VI-D-202

Air Products and Chemicals, Inc. VI-D-186 Alyeska Pipeline Service Company VI-D-126

American Automobile Manufacturers Association VI-D -157

American Automobile Manufacturers Association VI-D -266

American Automobile Manufacturers Association VI-D -270

American Automobile Manufacturers Association VI-D -273

American Electric Power VI-D-129

American Furniture Manufacturers Association VI-D -203

American Gas Association VI-D-154

American Gas Association VI-D-255 American Lung Association, et al. VI-D-238 American Municipal Power-Ohio VI-D-159

American Petroleum Institute VI-D-146

American Public Power Association VI-D-158 Arizona Electric Power Cooperative, Inc. VI-D-176 Arizona Mining Association VI-D-150 Arkansas River Power Authority VI-D-245 Armstrong, Teasdale, Schlafly & Davis VI-D-205 ASARCO Incorporated VI-D-187 Association of Battery Recyclers VI-D-155 Baltimore Gas & Electric Company VI-D-177 BP Oil Company VI-D-113 Bristol-Myers Squibb Company VI-D-204 California Association of Sanitation Agencies VI- D-206

Can Manufacturers Institute VI-D-181

Can Manufacturers Institute VI-D-262 Centerior Energy VI-D-134

Chemical Manufacturers Association VI-D-152

Chemical Manufacturers Association VI-D-258 Chevron Companies VI-D-132 Cinergy Corp. VI-D-141Cinergy Corp. VI-D-207

Commenting Organization Docket #

CITGO Petroleum Corporation VI-D-172 Class of '85 Regulatory Response Group VI-D-161 Clean Air Implementation Project VI-D-153

Clean Steel Coalition VI-D-195 Coalition for Clean Air Implementation VI-D-164 Coalition of Clean Air Implementation VI-D-249 Coastal Corporation VI-D-123 Coastal Corporation VI-D-271 Colorado Association of Commerce and Industry VI-D -182 Columbia Gas System Service Corporations VI-D-175 Cooperative Power Association VI-D-208

Council of Industrial Boiler Owners VI-D-263 County Sanitation Districts of Orange County, Calif ornia VI-D-231 County Sanitation Districts of Los Angeles County VI-D-232 Department of Defense VI-D-209 Department of Energy VI-D-196 Dow Chemical Company VI-D-120 DuPont Engineering VI-D-127 Duquesne Light VI-D-138 Eastman Chemical Company VI-D-173 El Paso Energy VI-D-257

Electronic Industries Association VI-D-137 Eli Lilly Company VI-D-124

Enerac VI-D-227 Engine Manufacturers Association VI-D-117 Enron Operations Corp. VI-D-235 Environmental Systems Corporation VI-D-125

Exxon Chemical Americas VI-D-128 Exxon Company, USA VI-D-135

Fertilizer Institute, The VI-D-145

Fertilizer Institute, The VI-D-253

Gas Processors Association VI-D-163 General Electric Company VI-D-156 Georgia Department of Natural Resources VI-D-193 Hawaiian Electric Company, Inc. VI-D-165 Hawaiian Electric Company, Inc. VI-D-246 Houston Lighting & Power Company VI-D-228 Independent Liquid Terminals Association VI-D-178 Commenting Organization Docket #

Institute of Clean Air Companies VI-D-139Appendix III-A October 2, 1997 Page 3

Institute of Clean Air Companies VI-D-247 Integrated Waste Services Association VI-D-147 KBN Engineering and Applied Sciences, Inc. VI-D-2 29 Kennecott Corporation VI-D-119 LaClede Gas Company VI-D-198 Los Alamos National Laboratory VI-D-210

Louisiana Mid-Continent Oil and Gas Association VI -D-184 Marathon Oil Company VI-D-185

Merck & Co., Inc. VI-D-212 Metropolitan Council VI-D-214 Minnesota Pollution Control Agency VI-D-197 Missouri Department of Natural Resources VI-D-260 Mobil Business Resources Corporation VI-D-248 Mobil Corporation VI-D-115 National Environmental Development Association/ Clean Air Regulatory Project (NEDA/CARP) VI-D-169 National Environmental Development Association/ Clean Air Regulatory Project (NEDA/CARP) VI-D-254 National Environmental Development Association/ Clean Air Regulatory Project (NEDA/CARP) VI-D-269 Natural Gas Pipeline Company of America VI-D-118

Natural Resources Defense Council VI-D-151

Natural Resources Defense Council VI-D-244

Natural Resources Defense Council VI-D-267

Natural Resources Defense Council VI-D-268 Nebraska Department of Environmental Quality VI-D- 211

NESCAUM VI-D-192

NESCAUM VI-D-194 Niagara Mohawk VI-D-168 NorAmGas Transmission Company VI-D-142

NYCOMED, Inc. VI-D-216 Occidental Chemical Corporation VI-D-166 Occidental Chemical Corporation VI-D-261

Ohio Chamber of Commerce, et al VI-D-160

Ohio EPA, Division of Air Pollution Control VI-D- 180 Pacific Gas Transmission Company VI-D-230 Pennsylvania Chamber of Business and Industry VI-D -114 Commenting Organization Docket #

Pennsylvania Department of Environmental Protection VI-D-174 Pennzoil Company VI-D-133Appendix III-A October 2, 1997 Page 4

Pfizer, Inc. VI-D-218

Pharmaceutical Research and Manufacturers of Americ a VI-D-217 Phillips Petroleum Company VI-D-131

PPG Industries, Inc. VI-D-136 Public Service Company of Colorado VI-D-219 Questar Corporation VI-D-220 R.R. Donnelley & Sons Company VI-D-221 Regulatory & Environmental Services Department, City of Jacksonville, FL VI-D-272

Rubber Manufacturers Association VI-D-149

S. Fitzsimmons VI-D-201 San Diego County Air Pollution Control District VI -D-191 Society of the Plastic Industry, Inc. VI-D-148 Society of the Plastics Industry, Inc. VI-D-250 South Carolina Electric & Gas Company VI-D-116 South Coast Air Quality Management District VI-D- 233 South Dakota Department of Environment and

Natural Resources VI-D-223 Southern California Gas Company VI-D-222 Southern Company Services VI-D-171 Southwestern Public Service Company VI-D-224 Specialty Steel Industry of North America VI-D-14 3

STAPPA/ALAPCO VI-D-179

STAPPA/ALAPCO VI-D-274

State of Illinois EPA VI-D-183 State of New Jersey Dept. of Environmental Protecti on VI-D-215 State of Tennessee Department of Environment

and Conservation VI-D-234 State of Washington, Department of Ecology VI-D-1 67 Steel Manufacturers Association (SMA) VI-D-144 Tennessee Valley Authority VI-D-162 Texaco Environment Health & Safety VI-D-199

Texas Chemical Council VI-D-236

Texas Natural Resource Conservation Commission VI- D-189

Texas Natural Resource Conservation Commission VI- D-256

Texas Natural Resources Conservation Commission VI -D-265 Commenting Organization Docket #

Texas Title V Planning Committee VI-D-188

Texas Utilities Services, Inc. VI-D-121

Total Petroleum, Inc. VI-D-190Appendix III-A October 2, 1997 Page 5

Tri-TAC VI-D-225

U.S. Small Business Administration VI-D-239 UCAR Carbon Company, Inc. VI-D-122 Union Carbide Corporation VI-D-170 United Technologies VI-D-251 Utility Air Regulatory Group VI-D-140 Utility Air Regulatory Group VI-D-252 Virginia Power VI-D-226

Wellman, Inc. VI-D-237 Wisconsin Electric Power Company VI-D-130 Wyeth Ayerst VI-D-213