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

To: Ch uck French/RTP/USEPA/US@EPA

Date: 02/22/2010 04:26 P M

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 so urce

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 “unnecessar ily 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 bei ng 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 d o 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 boththe sources and the state permitting agencies. Importantly, and

as discus sed 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 an d 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 co nsideration 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 b urdens

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. Impo sing 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

existi ng 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 requirement s.

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 req uirements 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 h old 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 sufficien t 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 exe mption 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 e nvironment. 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, potenti ally

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

(Alumin um, 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 cas e

- 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 nat ure 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 sh ort, 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 am ple 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