From: "Barbanell, Melissa (Salt Lake City)" <mbarbanell@barrick.com> 

 

 To: Chuck French/RTP/USEPA/US@EPA 

 Date: 02/22/2010 04:26 PM 

 Subject: title V application/exemption 

Chuck,

As follow-up to our discussion last week regarding title V exemptions for area 

sources subject to MACT standards I am attaching several documents for your 

review.

First, is a copy of the “Exemption Rule,” which is a tool developed by EPA in 

2005 when it granted title V exemptions for area sources in several source 

categories. See 70 Fed. Reg. 75320, 75323-27 (Dec. 19, 2005). As you know, 

section 502(a) of the CAA gives EPA the discretion to exempt area sources subject 

to CAA § 112 from title V requirements at the time that the new MACT standard is 

promulgated if EPA determines that compliance with title V is impracticable, 

infeasible, or unnecessarily burdensome for area sources. See 42 U.S.C. §7661a; 

40 C.F.R. § 70.3(b)(2). The “Exemption Rule” provides EPA’s interpretation of 

whether title V is “unnecessarily burdensome” for area sources within a source 

category that are not otherwise subject to title V requirements. If title V is 

unnecessarily burdensome for area sources subject to section 112, then EPA grants 

exemptions from title V requirements if that would not adversely affect public 

health, welfare, or the environment. The Exemption Rule is comprised of a four 

part test for determining whether title V is should be imposed for area sources 

as a result of a federal MACT standard being imposed.

 1. The first factor in the Exemption Rule is whether title V

 would result in significant improvements to the compliance

 requirements, including monitoring, recordkeeping, and reporting,

 that are proposed for an area source category. In its discussion

 of this factor, EPA points out that “[i]t has been EPA’s

 consistent position that post-1990 NESHAP include all monitoring

 required under the Act.” 70 Fed. Reg. at 75324. We understand

 that the MACT standards being developed for gold mining will be no

 different and that monitoring, recordkeeping and reporting

 required by the NESHAP will be sufficiently comprehensive such

 that title V would not improve compliance with the standard.

 Further, and as noted below relative to the fourth factor, the

 state permit programs for non-Title V sources provides a strong

 permit platform for implementing a federal NESHAP for area

 sources in essentially the same way a Title V permit would do so.

 2. The second factor in the Exemption Rule is whether title

 V permitting would impose significant burdens on the area source

 category and whether the burdens would be aggravated by any

 difficulty the sources may have in obtaining assistance from

 permitting agencies. There are extensive administrative burdens

 and costs associated with the title V permitting process for both
 the sources and the state permitting agencies. Importantly, and

 as discussed in item 4 below, there are ample existing programs in

 place to ensure strong implementation and enforcement of the

 federal MACT, making a Title V process unnecessary and resulting

 in resources being redirected away from more useful and necessary

 efforts.

 3. The third factor in the Exemption Rule is closely related

 to the second factor and examines whether the costs of title V

 permitting for the area source category would be justified, taking

 into consideration any potential gains in compliance likely to

 occur for such sources. Based on the lack of significant

 improvements in compliance requirements discussed in the first and

 fourth factors and the substantial additional costs and burdens

 associated with title V compliance discussed in the second factor,

 there do not appear to be any--yet alone sufficient--gains to

 justify the additional costs that would be imposed on area sources

 for title V compliance. Imposing title V permit requirements on

 area sources covered by the gold mining MACT standards would only

 serve to increase costs burdens on these facilities without any

 environmental benefits that are not already conferred under

 existing programs and potential new requirements that will be

 built directly into the NESHAP itself.

 4. The fourth factor in the Exemption Rule analysis is

 whether there are implementation and enforcement programs in place

 that are sufficient to assure compliance with the NESHAP for the

 area source category, without relying on title V permits. As

 noted above, the NESHAP itself is expected to include all

 necessary monitoring to effectively implement its requirements.

 Additionally, as you know, the area sources that will be subject

 to the MACT standard are already permitted under state permit

 programs that provide extensive compliance and enforcement

 infrastructure for assuring compliance with the NESHAP. For

 example, in Nevada, non-Title V sources are required to hold

 “Class II” operating permits which must contain, among other

 things all applicable “[e]mission limitations and standards,

 including those operational requirements and limitations that

 ensure compliance with the conditions of the operating permit” and

 “[a]ll requirements for monitoring, testing and reporting that

 apply to the stationary source.” 445B.346.1, .2. These State

 permits will subsequently incorporate the NESHAP standards into

 applicable permit requirements. In addition to its non-Title V

 permit program, Nevada has a separate mercury permitting program

 that requires all precious metals mining sources to hold a mercury

 operating permit to construct. These permits must contain “[a]ll

 applicable requirements concerning controls for mercury emissions,

 emission limits and standards.” See, e.g., 445B.3679.3. There

 are clearly sufficient permit programs that can address all of the

 federal NESHAP requirements such that there would be nothing be

 gained by imposing Title V requirements.
EPA weighs these factors when making an exemption determination, but will provide 

for an exemption even if the agency finds that not all four of the factors weigh 

in favor of an exemption. 70 Fed. Reg. at 75,323.

In addition to the four factors, EPA also must determine that the exemption will 

not adversely affect public health, welfare, or the environment. Id. at 75,323. 

EPA considers as part of this analysis whether requiring permits would shift 

"[s]tate agency resources away from assuring compliance for major sources with 

existing permits to issuing new permits for these area sources, potentially 

reducing overall air program effectiveness." 70 Fed. Reg. at 75,326. Nevada 

already is investing substantial time and resources in permitting units at gold 

mines as part of the state mercury program; requiring the State to issue Title V 

permits for these very small area sources would potentially overwhelm its 

existing air permitting resources, which would adversely affect its existing 

Title V program for major sources.

The second attachment is a copy of the proposed rule for subpart ZZZZZZ 

(Aluminum, Copper, and other Nonferrous Foundries). This provides a recent 

example of how EPA proceeds with its analysis of the four factors stated in the 

Exemption Rule. See 74 Fed. Reg. 6510, 6520-22 (Feb. 9, 2009). It provides a 

helpful overview of EPA’s case-by-case approach to applying the four factors of 

the Exemption Rule and explains that a determination is based on weighing all 

four factors in combination and not any single factor in isolation. See 74 Fed. 

Reg. at 6520.

The third attachment is a copy of the final rule for subpart ZZZZZZ.

This provides examples of EPA’s responses to comments it has received regarding 

the title V exemptions. See 74 Fed. Reg. 30366, 30385-90 (June 25, 2009). 

Although it is difficult to anticipate the exact focus and nature of comments 

that EPA may receive on a title V exemption for the gold mining NESHAP, this 

document provides helpful examples of how EPA has addressed comments it has 

received when granting an exemption for area sources in other source categories.

In short, we believe there is a strong basis for EPA to exercise its discretion 

to exclude mining area sources from Title V requirements.

EPA regularly makes the determination that a Title V exemption for area sources 

is appropriate. In this case, there are ample programs and mechanisms already 

in place at the state level to implement and enforce a federal MACT a for gold 

mining and there would be little gained in terms of improved compliance with such 

a standard by subjecting these sources to Title V.

Please let me know if you have any questions or comments or if you would like to 

discuss this issue in more detail.

Thanks,

Melissa