OFFICE OF INSPECTOR GENERAL

 

Catalyst for Improving the Environment

Evaluation Report

Substantial Changes Needed in 

Implementation and Oversight of

Title V Permits If Program Goals Are

To Be Fully Realized

Report No. 2005-P-00010 

March 9, 2005
Report Contributors: John Bishop 

Geoff Pierce

Sarah Turpin

Andrew Lavenburg

 Steve Schanamann

Abbreviations

ACC Annual Compliance Certification

ANPR Advanced Notice of Proposed Rulemaking

CAA Clean Air Act

CAM Compliance Assurance Monitoring

CFR Code of Federal Regulations

CO Carbon Monoxide

EPA U. S. Environmental Protection Agency

FR Federal Register

FY Fiscal Year

GOP General Operating Permit

IBR Incorporation by Reference

IEU Insignificant Emissions Unit

MACT Maximum Achievable Control Technology

MOA Memorandum of Agreement

NAAQS National Ambient Air Quality Standards

NOD Notice of Deficiency

NOx Nitrogen Oxide

NSR New Source Review

OAQPS Office of Air Quality Planning and Standards

OAR Office of Air and Radiation

OECA Office of Enforcement and Compliance Assurance

OIG Office of Inspector General

PM Particulate Matter

SB Statement of Basis

SIC Standard Industrial Classification

SIP State Implementation Plan

SO2 Sulfur Dioxide

VOC Volatile Organic Compound

Cover Photo:

Cover and page 3 photo of EPA’s Brochure on the Air Pollution Operating Permit Program Update, Key

Features and Benefits, EPA/451/K-98/002, Feb. 1998 (photo by S.C. Delaney/EPA). According to EPA’s

photo caption, “The operating permit program covers most significant sources of air pollution in the

United States. The more complex sources, such as large petroleum refineries and chemical production

plants, can have hundreds or even thousands of emission points.”

Source: http://www.epa.gov/air/oaqps/permitupdate/
 

U.S. Environmental Protection Agency

Office of Inspector General

At a Glance

 2005-P-00010

March 9, 2005

Catalyst for Improving the Environment

Why We Did This Review

We sought to determine

whether (1) selected Title V

permits contained adequate

provisions consistent with key

Clean Air Act (CAA)

requirements, (2) EPA’s

oversight and guidance

contributed to improvements

in Title V implementation,

and (3) Title V had achieved

its goals of improving the

implementation and

enforcement of the CAA.

Background

In 1990 Congress enacted

Federal clean air permitting

requirements designed to

reduce violations and improve

enforcement of air pollution

laws for the largest sources of

air pollution. Known as Title

V, this provision requires that

all major stationary sources of

air pollutants obtain a permit

to operate. More than 17,000

sources are subject to Title V

permit requirements.

For further information, 

contact our Office of

Congressional and Public

Liaison at (202) 566-2391.

Substantial Changes Needed in Implementation and

Oversight of Title V Permits If Program Goals Are To Be

Fully Realized

 What We Found

Our analysis identified concerns with five key aspects of Title V permits,

including (1) permit clarity, (2) statements of basis, (3) monitoring provisions, (4)

annual compliance certifications, and (5) practical enforceability. Collectively,

these problems can hamper the ability of EPA, State and local regulators, and the

public to understand what requirements sources are subject to, how they will be

measured, and ultimately to hold sources accountable for meeting applicable air

quality requirements. Factors such as extensive use of incorporation by reference,

failure to fully cite applicable regulations, complex permit format, and lack of

detail in source requirements for testing, monitoring, and reporting had a negative

impact on permit clarity. Also, the practical enforceability of some permits was

limited by vague permit language and insufficient monitoring provisions. Further

EPA guidance is needed in each of these Title V permitting program elements.

EPA’s oversight and guidance of Title V activities have resulted in some

improvements in Title V programs; however, areas of further improvement

remain. Many Title V programs have improved as a result of EPA’s issuing

formal notices of deficiency, and through EPA’s efforts to obtain commitment

letters from selected State and local permitting authorities. However, some EPA

regions have been slow in issuing program evaluation reports for permitting

authorities within their respective regions, and have not responded to public

petitions against Title V permits in a timely manner. For example, of the 31 State

and local agency Title V evaluations completed, EPA regions have only reported

on 14 agencies. Several stakeholders expressed a need for increased EPA

guidance and oversight.

Despite implementation problems, the Title V program has resulted in some

significant benefits. The inclusion of all relevant CAA requirements in one

document has enabled stakeholders to obtain the information needed to

understand the applicable requirements for major emitting sources, and to express

their concerns. Anecdotal evidence suggests that permitting authorities and

industry sources have improved communications, that emissions inventories are

better, that compliance has been achieved more quickly, and that emissions have

been reduced due to the annual requirement for owners or operators to certify

compliance with all applicable CAA requirements. 

To view the full report,

click on the following link:

www.epa.gov/oig/reports/2005/

20050309-2005-P-00010.pdf

 What We Recommend

We made several recommendations for EPA to, among other things, reduce the

factors that negatively impact permit clarity, improve national Title V guidance,

actively identify monitoring deficiencies in state implementation plans, and

develop a comprehensive Title V oversight strategy. The Agency agreed with

several of our recommendations regarding issuing draft rules and improving EPA

oversight, but disagreed with several others related to issuing Title V guidance.
 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

 W ASHINGTON, D.C. 20460 

OFFICE OF 

INSPECTOR GENERAL

March 9, 2005

MEMORANDUM

SUBJECT: Final Evaluation Report: 

Substantial Changes Needed in Implementation and Oversight of Title V

Permits If Program Goals Are To Be Fully Realized

Report No. 2005-P-00010

FROM: Kwai-Cheung Chan /s/

Assistant Inspector General for Program Evaluation

TO: Jeffrey R. Holmstead

Assistant Administrator for Air and Radiation

Attached is our final report regarding implementation and oversight of the Clean Air Act’s Title V

Operating Permits Program. This report contains findings regarding EPA’s need to issue national

guidance related to Title V permitting activities and to improve oversight of State and local

permitting programs. Also, the report contains corrective actions the Office of Inspector General

(OIG) recommends. This report represents the opinion of the OIG, and the findings contained in

this report do not necessarily represent the final EPA position. Final determination on matters in

this report will be made by EPA managers in accordance with established procedures. 

EPA’s Office of Air and Radiation provided us with a response on February 7, 2005, that

consolidated its comments to the draft report with those from the Office of Enforcement and

Compliance Assurance and EPA’s regional offices. We included EPA’s consolidated response in

its entirety as Appendix F. 

Action Required 

In accordance with EPA Manual 2750, as the action official, you are required to provide this office

with a written response within 90 days of the final report date. Since this report deals primarily

with the EPA Office of Air and Radiation’s Title V Program, the Assistant Administrator for Air

and Radiation was designated the primary action official. As such, he should take the lead in

coordinating the Agency’s response. The response should address all recommendations. For the

corrective actions planned but not completed by the response date, please describe the actions that

are ongoing and provide a timetable for completion. If you do not concur with a recommendation,
-2-

please provide alternative actions addressing the findings reported. We appreciate the efforts of

EPA officials and staff, as well as external stakeholders, in working with us to develop this report.

For your convenience, this report will be available at http://www.epa.gov/oig. 

If you or your staff have any questions regarding this report, please contact me at (202) 566-0827,

Rick Beusse, Director for Program Evaluation - Air Issues, at (919) 541-5747, or John Bishop,

Assignment Manager, at (919) 541-1028. 

Additional Distribution

Thomas V. Skinner

 Acting Assistant Administrator for Enforcement and Compliance Assurance

Robert W. Varney

 EPA Region 1 - Regional Administrator

Kathleen Callahan

 EPA Region 2 - Acting Regional Administrator

Donald S. Welsh

 EPA Region 3 - Regional Administrator

James I. Palmer, Jr.

 EPA Region 4 - Regional Administrator

Bharat Mathur

 EPA Region 5 - Acting Regional Administrator

Richard Greene

 EPA Region 6 - Regional Administrator

James B. Gulliford

 EPA Region 7 - Regional Administrator

Robert Roberts

 EPA Region 8 - Regional Administrator

Wayne Nastri

 EPA Region 9 - Regional Administrator

Ron Kreizenbeck

 EPA Region 10 - Acting Regional Administrator
i

Table of Contents

At a Glance 

Chapters

1 Introduction ........... ........... ........... . 1

Purpose .............. .............. .............. .... 1

Background .......... .......... .......... .......... ....... 1

Scope and Methodology .......... .......... .......... ....... 4

Results in Brief .......... .......... .......... .......... ..... 5

2 Improvements Needed in Clarity and Completeness of

Title V Permits if Goals Are To Be Realized .......... 8

Improvements Needed in Permit Clarity .......... .......... ...... 8

Some Statements of Basis Missing Key Elements .......... ....... 16

Monitoring Provisions in Permits Varied, Adequacy Questioned ...... 18

Improvements Needed in Annual Compliance Certification Content ... 29

Practical Enforceability Concerns with Some Permits .......... .... 32

Conclusions .......... .......... .......... .......... ...... 36

Recommendations .......... .......... .......... .......... . 37

 Agency Comments and OIG Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . 38

3 EPA’s Oversight and Guidance Have Improved 

State Title V Programs, But Gaps Remain .......... 39

Regional Reviews of Title V Permits Generally Met OAR Goals ...... 39

EPA Responsiveness to Public Petitions Needs to Improve ......... 42

Most NOD and Commitment Letter Issues Have Been Resolved ...... 44

Stakeholders Identified Needs for Title V Guidance .......... ...... 48

Conclusions .......... .......... .......... .......... ...... 51

Recommendations .......... .......... .......... .......... . 51

 Agency Comments and OIG Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ii

4 Despite Some Problems, Title V Has Generally

Improved Implementation of the Clean Air Act ....... 53

Expected Benefits Of Title V .......... .......... .......... ... 54

Most Stakeholders Cited Anecdotal Benefits of Title V .......... ... 54

Improved Air Pollution Control Programs .......... .......... .... 56

Improved Enforcement and Faster Compliance .......... ......... 58

Consolidation of Requirements and Regulatory Certainty .......... . 60

Benefits to Public Participation .......... .......... .......... . . 61

EPA and Industry Views of Title V Differed .......... .......... . . 62

Results of OIG Review of Pre- and Post-Title V Permits .......... . . 63

Conclusions .......... .......... .......... .......... ...... 65

Recommendations .......... .......... .......... .......... . 65

 Agency Comments and OIG Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Appendices

A Definition of Major Stationary Source .......... .......... ........ 66

B Details on Scope and Methodology .......... .......... .......... 68

C Observations on Statements of Basis and Annual Compliance

Certifications In Four States Reviewed .......... .......... ....... 74

D EPA, State, and Local Agency Roles and Responsibilities in 

Implementing Title V .......... .......... .......... .......... . . 78

E Status of EPA Regional Evaluations and Notices of Deficiencies ...... 80

F Consolidated Agency Response to Draft Report and OIG Evaluation . . . . 81

G Texas Response to Draft Report and OIG Evaluation . . . . . . . . . . . . . . . . . 96

H Ohio Response to Draft Report and OIG Evaluation . . . . . . . . . . . . . . . . . 102

I Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
1

Chapter 1

Introduction 

Purpose

The Office of Inspector General (OIG) initiated this evaluation to assess the extent

to which Clean Air Act (CAA) Title V operating permits have adequately

incorporated key Title V requirements and met the congressionally-mandated

goals of the program. Once authorized by the U. S. Environmental Protection

Agency (EPA), State and local agencies issue Title V operating permits to major

air pollution sources throughout the country, permitting these major sources to

operate within applicable CAA requirements. Major sources, the largest emitters

of air pollution, are generally sources with annual emissions potentials that meet

or exceed levels specified in the CAA. (See Appendix A for a more detailed

definition of major source.) A properly implemented Title V program can not

only provide assurance of major source compliance, but also reduce air pollution

emissions, increase regulatory certainty, and improve air quality.

Within the last several years, potentially significant problems related to the

adequacy of CAA Title V operating permits have been identified as a result of

lawsuits, public petitions, and other sources. Concerns have been raised regarding

the overall clarity and completeness of Title V permits, and that selected permits

were lacking relevant air quality protections; deficient in emissions monitoring

requirements; had insufficient provisions for public participation, notification, and

oversight; and contained inadequate enforcement provisions. At the same time,

some industry representatives and others have questioned whether Title V is

achieving its goals. As such, the objectives of our evaluation were to determine

whether:

• selected Title V permits were clear and contained adequate provisions

consistent with key Title V requirements.

• EPA’s Title V oversight and guidance provided to State permitting authorities

contributed to improving the implementation of Title V.

• the Title V program has achieved its congressionally-mandated goals of

improving the implementation and enforcement of the CAA.

Background

Importance of Title V Permits

One of the primary purposes of Title V permits is to reduce violations of air

pollution regulations and improve the enforcement of those regulations. Prior to

passage of the CAA Amendments of 1990, major sources of air pollution were not
2

required to have federally enforceable operating permits. The requirements for

these sources were often scattered among multiple documents, making it difficult

to determine compliance and therefore difficult to provide effective enforcement

of CAA regulations. Although some States did implement their own operating

permit programs to regulate major sources, others did not. Even for those with

permit programs, difficulties sometimes arose with Federal enforcement of State

regulations.

The Title V operating permit requirement provides for a federally-enforceable

document that contains all air quality requirements for an individual major source. 

Though Title V does not generally impose new air quality control requirements, it

does require permits to contain monitoring, reporting, and record-keeping

provisions to ensure source compliance with existing CAA regulations. Because

these permits are federally enforceable, Title V permits provide Federal and State

entities, as well as the general public, with a means of holding major sources

accountable for all applicable air quality requirements. 

Origin and Intent of the Title V Program

The CAA Amendments of 1990 established the statutory authority for the Title V

operating permits program. Congress’ main goal in establishing the Title V

program was to achieve a broad-based tool to aid in implementing the CAA

effectively and enhancing enforcement. Within this overarching goal, Congress

intended the Title V program to realize nine more specific goals, as follows:

1. improving State air pollution programs through better emissions inventories, 

2. providing resources through Title V fees,

3. providing a vehicle for implementing the air toxics and acid rain programs, 

4. improving enforcement, 

5. achieving faster compliance, 

6. requiring compliance certifications from facility operators,

7. listing all the applicable regulatory requirements in one document, 

8. providing regulatory certainty, and

9. improving public participation.

In July 1992, EPA published rules and regulations for implementing State air

quality permitting systems, mandated by Title V, in Title 40 of the Code of

Federal Regulations (CFR), Part 70 (Part 70). EPA stated, in the preamble to Part

70, that the Title V program would generally clarify which requirements apply to

a major source by incorporating them into a single document. They further stated

that the program would enable the source, States, EPA, and the public to identify

the requirements to which the source was subject, and whether the source was

meeting those requirements. (See Appendix D for EPA, State, and local agency

roles and responsibilities in implementing Title V.) Although the 1990 CAA

Amendments and the 1992 publication of Part 70 set the Title V program into

motion, it took several years before State and local permitting authorities began to

issue Title V permits. 
1

See Sierra Club v. Envtl. Protection Agency, 322 F.3d 718 (D.C.Cir. 2003); Public Citizen v. Envtl.

Protection Agency, 343 F.3d 449, 454 (5th Cir. 2003).

3

Current Status of the Title V Program

According to the time line established by the CAA Amendments in 1990, all

initial Title V permits should have been issued by 1997, and were to be renewed

every 5 years. As of June 30, 2004, State and local permitting authorities had

issued 91 percent (15,658 of 17,274) of the required Title V permits. While many

State and local permitting authorities have initially issued all their Title V permits,

other permitting authorities have issued as little as 57 percent of permits applied

for. Generally, those major sources that are not yet permitted are the largest, most

complex sources, and thus require more permitting authority resources to issue

those Title V permits. Further complicating issuing these Title V permits is that

many major sources throughout the country are approaching the 5-year renewal

time for their existing permits, so that now some permitting authorities must

juggle the task of initial issuances with that of permit renewals.

After EPA wrote the Part 70 rules governing implementing Title V, most States

received interim program approval for two years which allowed them to begin

issuing permits. For a number of States, EPA extended the interim approval

periods twice. Because the CAA states that interim approvals can only be for two

years and cannot be extended, the Sierra Club and the New York Public Interest

Research Group sued EPA on this issue. The lawsuit resulted in a settlement in

which EPA agreed to address issues in State rules related to Title V in order to

approve or disapprove their plans. EPA agreed to issue a Federal Register (FR)

notice requesting letters from citizens containing their comments about Title V.1 

According to Office of Air Quality Planning and Standards (OAQPS) officials,

after the FR notice was issued in December 2000, EPA received 34 letters from

citizens that contained 350 Title V-related issues of concern affecting 20 States. 

In response, EPA divided the issues into regulatory and implementation

categories. The regulatory category dealt with those issues regarding Federal and

State regulations and rules affecting Title V; the implementation category dealt

with issues related to administering and enforcing Title V. 

As a result of the public comment period, EPA issued Notices of Deficiency

(NODs) to certain permitting authorities to address the regulatory issues, and

obtained commitment letters from a number of State and local permitting

authorities to address the implementation issues. Ultimately, EPA issued NODs

to 8 States, 34 local permitting authorities in California, and the District of

Columbia, directing them to correct these regulatory issues. Many permitting

authorities addressed multiple implementation issues by providing commitment

letters to EPA. All 112 State and local permitting authorities’ Title V programs

have now received final approval from EPA.
4

Scope and Methodology

To address questions regarding the adequacy of permit clarity and whether

permits contained provisions that were consistent with key Title V requirements,

we interviewed officials from OAQPS, environmental and industry groups, key

air and enforcement officials in all 10 EPA Regions, and State permitting

authorities. We conducted extensive Internet literature searches of Title V-related

issues. We supplemented these searches by reviewing public petitions detailing

citizen complaints against State Title V programs and individual permits, and

lawsuits filed against State permitting authorities and EPA. We also analyzed

EPA and State guidance on Title V permit writing and reviewing, including

guides designed to aid the public in effectively participating in the Title V

program. Our approach included a detailed review of selected permits in New

York, North Carolina, Ohio, and Texas. We used a data collection instrument to

review 40 permits (10 permits in each State), representing a range of industries,

including all supporting documentation and compliance reports. Appendix B

provides a more detailed discussion of our data collection instrument and the

sampling methodology we used.

To assess the effectiveness of EPA oversight and guidance, we examined EPA

regional efforts to review individual permits and conduct evaluations of their

respective State and local agencies’ Title V permit programs, according to their

agreements with the Office of Air and Radiation (OAR). We also sought to

determine if the issues raised in NODs and commitment letters had been

addressed and resolved by the relevant permitting authorities. We accomplished

this objective through reviewing selected permits and other documentation,

interviewing OAQPS and EPA regional officials, and reviewing the status of EPA

Title V guidance and rules with key stakeholders.

To determine whether Title V improved the implementation of the CAA, we

interviewed representatives from all 10 EPA regions using a structured interview

form. We also interviewed representatives from multiple additional stakeholder

groups, including OAQPS, the Office of Enforcement and Compliance Assurance

(OECA), permit writers and reviewers from selected State permitting authorities,

environmental groups, and industry representatives. Using the data collection

instrument discussed above, we also reviewed actual permits from a selected

number of States and compared their content and requirements to pre-Title V

State permits, where available. Because empirical data on benefits has not been

maintained, the information we collected on Title V implementation was largely

testimonial; however, we incorporated empirical evidence wherever possible. 

Appendix B provides more details on the structured interview form and

methodology used. 

We performed this evaluation in accordance with the Government Auditing

Standards, issued by the Comptroller General of the United States. We conducted

our fieldwork from September 2003 to October 2004.
5

Prior Audit/Evaluation Coverage - See Appendix B for a detailed list of prior

OIG and Government Accountability Office (GAO) audits and evaluations related

to Title V issues.

Results in Brief

Adequacy and Completeness of Title V Permits Needs Improvement

Substantial improvements are needed in the clarity and adequacy of Title V

permits. According to our analysis, the clarity of Title V permits, the sufficiency

of monitoring provisions incorporated into permits, and the adequacy of

statements of basis (SBs) and annual compliance certifications (ACCs) varied

significantly across permitting authorities. Factors such as extensive use of

incorporation by reference, failure to fully cite applicable regulations, complex

permit format, and lack of detail in source requirements for testing, monitoring,

and reporting negatively affected permit clarity. The sufficiency of monitoring

provisions in Title V permits was frequently a function of the underlying State

and Federal regulations. Our review of 40 State-issued Title V permits found that

90 percent of those permits included some type of gap-filling provision(s) where

the underlying regulations contained either no monitoring or insufficient

monitoring requirements. This condition indicated a potential lack of sufficient

monitoring requirements in State and Federal regulations. The ability of

permitting authorities to improve monitoring provisions in Title V permits has

been affected by court rulings on periodic monitoring and by EPA’s recent

umbrella monitoring rule.

The content of permit statements of basis varied substantially between permitting

authorities and, in some cases, within permitting authorities. EPA responses to

public petitions and EPA regional guidance provided a limited basis for the

content of the statements of basis. However, EPA has made no successful attempt

to provide consistency for statement of basis content. We noted a similar trend

with respect to the criteria regarding ACCs under Title V. The adequacy of ACCs

varied among permitting authorities. Our review also revealed evidence of

problems related to the practical enforceability of permits. Overly general

monitoring and testing requirements potentially affected the practical

enforceability of some of the permits we reviewed. 

EPA Oversight Could Be More Effective

EPA’s oversight of Title V activities has resulted in some improvements in State

Title V programs; however, more improvements are needed. Until Fiscal Year

(FY) 2003, EPA’s OAR emphasized, through Memorandums of Agreement, EPA

regional office review of permits. The EPA regions largely met or exceeded this

review initiative in FY 2002 and 2003 and frequently commented on permits

reviewed. However, most EPA regions did not issue formal objections resulting
6

from these reviews, citing that, instead, they worked with permitting authorities

early in the permitting process to avoid issuing objections to permits. In 2003,

OAR shifted emphasis from EPA regional permit reviews to program evaluations

of State Title V programs. Thirty-one such evaluations were completed in 2003

and 2004; however, only 14 final reports on these evaluations have been issued. 

In addition, EPA has not responded to public petitions filed against Title V

permits in a timely manner. Although the CAA mandates that EPA respond to

many of these petitions within 60 days, the average EPA response time to public

petitions has been approximately 12 months. EPA region and OAQPS officials

attributed the delays to a shortage in resources, and to the time required to

coordinate efforts between multiple offices within EPA to formulate responses to

the petition. One key official at OECA indicated that responding to public

petitions has not been a high priority within EPA.

In 2001 and 2002, EPA issued 10 NODs to permitting authorities to address

regulatory problems in their Title V programs. EPA also received 23 commitment

letters from State and local permitting agencies during this period to address

implementation problems in their Title V programs. States have resolved the

majority of issues identified in NODs and commitment letters, with remaining

issues unresolved in Ohio, Hawaii, and Texas. The resolution of the majority of

NOD and commitment letter issues has resulted in improvements to various

aspects of Title V programs and permits, including improved definitions of

“prompt reporting of deviations” in regulatory language, improved statements of

basis, and clearer citations to the origin of authority for permit terms and

conditions. Although NOD issues are tracked and their status is noted in the FR,

OAR does not track or monitor the resolution of commitment letter issues. 

OAR has issued very limited formal guidance and rules on Title V in the past

several years. In lieu of formal guidance, the Agency has relied on public petition

responses and letters to regions and permitting authorities to convey its position

on key Title V issues. Many of the key stakeholders we interviewed cited a need

for greater national consistency in the Title V program and indicated a desire for

guidance on periodic monitoring, as well as the minimum required content of

statements of basis and ACCs.

Benefits of the Title V Program

Overall, Title V has improved implementing the CAA. Most stakeholders told us

that Title V has been partially successful in meeting seven congressional Title V

goals (better emissions inventories, consolidated regulations, facility operator

certainty, public participation, faster implementation of control requirements, fee

programs, and periodic compliance reporting). However, industry representatives

held a different view of Title V, stating that it has not accomplished its intended

goals and has, instead, imposed a substantial cost on facilities. Most key

stakeholders also cited a number of additional benefits of Title V, including

enhanced implementation of key CAA provisions, significant improvements in

listing all requirements in one document, requirement for ACCs, and Federal
7

enforceability of permits. Our comparison of pre- and post-Title V permits for

our sample of 40 permits in 4 States found that pre-Title V permits generally did

not record all CAA requirements in one document, contain an ACC requirement,

provide for public participation, or grant the public the right to object to permits.

Recommendations

We are making a number of recommendations to the Assistant Administrator for

Air and Radiation, the Assistant Administrator for Enforcement and Compliance

Assurance, and the EPA Regional Administrators to improve Title V

implementation and enforcement and better ensure that program goals are

realized. Specific recommendations are at the end of each chapter.

EPA’s Office of Air and Radiation provided us with a response to our draft report

that consolidated its comments with those of EPA regions and the Office of

Enforcement and Compliance Assurance. The Agency generally disagreed with

our findings, conclusions, and recommendations related to issuing nationwide

guidance on the Title V program, but largely agreed with our findings that the

Title V program could benefit from improvements in permit content and EPA

oversight.

Our evaluation called for EPA to issue nationwide guidance on statement of basis

(SB) and annual compliance certification (ACC) content to assure that permitting

authorities are consistently incorporating key elements in both documents. EPA,

however, stated that guidance for SB content could be found in public petitions

responses and should be kept flexible to allow for differences in source

complexity. They also stated that they have not seen widespread problems with

either SB or ACC content. We maintain our position that national guidance is

needed in each of these areas. Our findings indicated that permitting authorities

may not have been aware, or may have been reluctant to follow, “guidance” that

was not issued nationally (such as EPA statements issued in response to Title V

permit petitions). 

EPA agreed to follow through on various actions recommended in our report,

including issuing the draft rule on intermittent versus continuous compliance

monitoring, completing its commitment to develop periodic monitoring guidance,

reviewing the adequacy of monitoring provisions in state implementation plans,

and promulgating the order of sanctions rule. The Agency also agreed to develop

five-year plans combining oversight with permit review and audits to ensure

proper implementation of the Title V program, and to work to devise a procedure

to reduce response times to public petitions. 

We revised the report based on EPA’s February 7, 2005, consolidated response

and updated information, as appropriate. The Agency’s consolidated response

and our evaluation of that response are in Appendix F. 
2

Interpretation of permit clarity can vary depending on individual perspective. For the purposes of our

evaluation and this report, we interpreted permit clarity as referring to the extent to which specific key permit

elements, by their adequacy or lack thereof, affect the ability of outside reviewers to determine what requirements

apply to a source and what is expected of the source in terms of meeting emissions limitations. Translating complex

regulations into source-specific requirements such that the facility personnel, EPA and State regulators, and the

public could clearly identify what is expected and how it would be measured, were among the original goals of

having Title V permits.

8

Chapter 2

Improvements Needed In Clarity and Completeness

of Title V Permits If Goals Are To Be Realized

Various officials in EPA, and in environmental and industry groups, identified

several problems concerning the clarity and content of key elements of Title V

permits: 

• the clarity of Title V permits, 

• the content and adequacy of statements of basis (SBs), 

• the adequacy of monitoring provisions, 

• the content and adequacy of annual compliance certifications (ACCs), and 

• the practical enforceability of permits. 

We found similar problems in each of these areas while reviewing a sample of

Title V permits in four States. Inadequate monitoring requirements in some State

and Federal regulations and a lack of clear EPA guidance on certain key Title V

elements contributed to permit problems. Collectively, these problems can

hamper the ability of EPA, State and local regulators, and the public to understand

what requirements sources are subject to, how they will be measured, and

ultimately to hold them accountable for all applicable air quality requirements.

Improvements Needed in Permit Clarity

Officials in OAQPS, OECA, 9 of 10 EPA regional air offices, and environmental

and industry group representatives told us they had concerns about various

elements of permit clarity nationwide.2

 Comments from officials in these groups

included the following: permits lack sufficient detail, do not clearly cite applicable

requirements, and are difficult for the public to understand. In reviewing State

permits, we also found many permit clarity-related problems, including:
3

Incorporation by reference (IBR): The process in which a permitting authority lists only a reference, or

citation to, the underlying requirement that the source is subject to instead of providing both the citation and a

narrative description of the requirement. To determine what the source must actually comply with, the reader must

refer to the citation in the State or Federal regulations.

4

See page 39 for more information on permit review provisions in MOAs between OAR and EPA regions.

9

C extensive incorporation by reference (IBR),3

C failure to fully cite underlying regulations,

C lack of specificity of source requirements for testing, monitoring, and

reporting, and 

C complex permit format.

Permit clarity was also affected by a lack of identifying, or explaining,

streamlining in the permit’s statement of basis (SB). Officials in some of the

States we visited asserted that Title V permits are complex engineering

documents, and are thus, by their nature, not easy documents to read and

understand. We found that problems with these key elements in Title V permits

can negatively affect the clarity and adequacy of already complex documents. 

These problems make it more difficult for EPA, State, and local regulators,

industry and environmental groups, and the general public to readily discern

which CAA requirements apply to a facility and what the facility must do to

demonstrate compliance with emissions limitations.

Title V Stakeholders Identified Problems in Permit Clarity

Officials at OAQPS expressed concern about the effect of permit clarity problems

on public participation and on permit reviews. According to one key OAQPS

official, permits in some States can be “incomprehensible,” making them difficult

and confusing to review. He also noted that permits are more complex in States

such as California, that have complex and extensive State-level environmental

regulations. According to another key OAQPS official, in some States the

extensive use of IBR is a significant problem. A key OAQPS official also

asserted that the public regularly complains about the lack of permit clarity and

complex permit format.

During FYs 2002 and 2003, most EPA regions reviewed samples of Title V

permits issued by one or more of their respective permitting authorities pursuant

to provisions in memorandums of agreement (MOAs) between OAR and EPA

regions4 and provided comments regarding the adequacy of permit content. 

Given their experience with Title V permits, we asked EPA regional officials

what patterns, if any, appeared in their review comments. Officials from six

EPA regions said that they had commented on one or more of the following

permit clarity problems:

C permits lacked sufficient detail, 

C use of streamlining needed to be explained more clearly,
5Many EPA regional officials indicated that they were hesitant to describe permit elements as weaknesses,

focusing instead on areas that need improvement.

10

C permits included inappropriate permit shields,

C permits did not clearly cite State Implementation Plan (SIP) requirements,

and

C permits were missing applicable requirements.

We also asked EPA regional officials to assess the strengths and weaknesses of

various aspects of Title V permits, including permit clarity, for permitting

authorities within their respective regions.5 While EPA regional officials told us

that permit clarity is generally adequate among most permitting authorities, they

also identified some problem areas. Some EPA regional officials cited permit

clarity as a strength in certain permitting authorities, noting that their permits

were well-written, formatted in a user-friendly manner, and easy to read. 

However, as shown in Table 2.1 below, EPA officials in nine regions noted some

general permit clarity problems as well as some specific permit clarity problems

among permitting authorities. These problems included extensive use of IBR,

vague permit language, and complex permit format.
6

Including the format of general operating permits; these permits have a condensed application and

permitting process. Sources with similar operations, emissions units, and requirements can apply for general

operating permits in lieu of an individual permit. See page 13 for further discussion of general operating permits.

11

 Table 2.1: Examples of Permit Clarity Problems Identified by EPA Regional Officials

EPA

Region

Permitting

authority

EPA regional officials’ comments to OIG

1 NA None

2 General - Permit clarity could be improved; however, it is difficult to develop 

 “user-friendly” documents because of the amount of information 

 required by Title V.

3 General - States fail to provide adequate justifications for streamlining.

District of 

Columbia

- Use of unknown, unexplained acronyms.

4 LouisvilleJefferson Co.,

Kentucky

- Use of IBR makes permits confusing.

5 Illinois - Some general permit language makes it unclear whether

 requirements apply to a source; permit structure complicates review.

Indiana - Does not always clearly label combined Title V/construction

 permits.

Ohio - Origin and authority of terms left out - will be addressed upon permit 

 renewal; some vague permit language.

6 Texas - Extensive use of IBR can make permits difficult to follow; frequently

 requires going back to the application for information.

7 Iowa

Missouri

- Sometimes fail to clearly cite SIP requirements.

8 North Dakota - Permits need more detail in applicable requirements.

Utah - Permit language can be vague.

9

Arizona 

California

- In some permitting authorities in Arizona and California, permit

 format can be complex and difficult to follow.

10 Washington:

Industrial

Section

- Permit format causes clarity issues.

Source: Comments provided by EPA regional air officials in their written and oral responses to OIG’s

structured interview questions.

Nine out of the 10 environmental groups we interviewed cited problems with the

clarity of Title V permits. These problems included permits that are incomplete

or lack sufficient detail, extensive use of IBR, confusing permit format,6 and

issuing multiple Title V permits to a single source. Two environmental group

representatives told us they found permits in some States to be

“incomprehensible.” One representative told us that the permit format in one

State was so complex that the permit information essentially had to be reorganized and re-written in order for the group to review the permit. Several of

the environmental groups we contacted contend that the ability of the public to

exercise their right to enforce a permit may be jeopardized if the permit is written

in a way that cannot be understood by the public.
7

In most cases, we did not review requirements concerning each individual emissions unit in the Title V

permits. Rather, we selected three to four emissions units at a source and reviewed the applicable requirements and

corresponding monitoring provisions listed in the permit. In selecting units to review, we focused on capturing the

major emissions units at a source, as well as a variety of units.

8

The Texas permits we reviewed included a description of the emissions limitation for each emissions unit;

however, they did not do the same for monitoring, testing, record keeping, or reporting. These columns included

only a citation to a State or Federal regulation. 

12

The industry representatives we interviewed also identified problems with the

clarity of Title V permits. They stated that the Title V program is too complex

and that permits are written in such excess detail that it is impossible to read

them unless the reader has a very detailed knowledge of the individual source’s

operations. One industry representative also cited problems with clarity that

arise from overlapping Federal and State rules and regulations. Representatives

noted that streamlining can minimize the overlap and make permits less

complex. However, they also stated that the process to streamline can be timeconsuming and burdensome for the source. They also expressed the belief that

too much detail exists on certain provisions, such as requirements for

insignificant emissions units (IEUs), which adds to permit complexity.

Results of State Permit Review

We reviewed a sample of permits in four States to address the following clarity

issues: using IBR, whether the permits correctly reflected underlying regulations,

using permit shields and streamlining, and overall clarity.7 We found that these

elements were incorporated into Title V permits to varying degrees, and that

overall, permit clarity varied widely in most of the States we visited. 

Using Incorporation By Reference 

Almost all of the permits we reviewed incorporated applicable CAA

requirements by reference to some degree. North Carolina, Ohio, and New York

generally followed references or citations to a requirement with a narrative

section paraphrasing the requirement. We found a few instances in each of these

States where the reference to a requirement (usually in 40 CFR) was too general

to determine which part specifically applied to the section. However, for the

most part, the use of IBR in the North Carolina, Ohio, and New York permits we

reviewed was reasonably discernable, provided the reader had access to the State

regulations and/or 40 CFR. In Texas, citations for all requirements specific to

emissions units at the source were listed in an applicable requirements summary

table with minimal or no narrative description8. For the 10 Texas permits we

reviewed, in order to determine what monitoring, testing, record keeping, and

reporting the requirement entailed, the reader had to review each citation in the

State regulations or 40 CFR. We found this to be a time-consuming process

because of the State’s reliance on IBR for all emissions unit-specific

requirements. A reader or a reviewer is especially challenged when the citation
9

Public Citizen, 343 F.3d at 454. The IBR decision was part of a more extensive ruling on a case brought

by Public Citizen against EPA for approving the Title V program in Texas and for failing to issue notices of

deficiency on several issues. EPA conceded to the court that it had previously provided guidance stating that

requirements should first be restated on the face of the permit before IBR is used, however, EPA contended that such

guidance was not binding and the Court agreed.

13

is general and does not clearly reference a specific paragraph or subsection. In

those cases, a reader may have to review lengthy State or Federal regulations to

find the applicable paragraph. 

Texas also extensively uses IBR in general operating permits. General operating

permits are intended to provide a condensed application and permitting process

for sites that are similar in terms of operations, emissions units, and applicable

requirements. Instead of receiving an individual permit specifically identifying

each emissions unit and its requirements, eligible sources fill out an application

and then receive a letter granting them operating status under the general

operating permit. General operating permits are not unique to Texas. However,

they were used more frequently there than in the other States we visited. 

According to Texas officials, approximately 40 percent of Texas Title V permits

were issued through general operating permits as of May 2004. The general

operating permit we reviewed, which Texas officials stated was representative of

the State’s other general operating permits, did not specifically identify the actual

emissions units at a given source. 

To determine what requirements a general operating permit source is subject to,

the reader must request access to the permit application to identify the source

specific emissions units in the application, then locate the emissions units and

operations listed in the general operating permit applicable requirements

summary table, and locate the corresponding State or Federal regulation citation. 

For example, Texas general operating permits for oil and gas sources consist of

76 to 108 pages of applicable requirements tables – all with extensive IBR. 

Finally, the text of the State or Federal regulation must be located and the details

of the requirement identified. 

In 2002, several environmental groups filed a lawsuit challenging, among other

things, Texas’ use of IBR in incorporating minor New Source Review (NSR)

permits into Title V permits. On August 15, 2003, the 5th Circuit Court of

Appeals ruled against the petitioners on this issue and found that nothing in the

CAA prohibits the incorporation of applicable requirements by reference.9 

Using IBR in permits thus does not violate any Title V requirement. However,

extensive use of IBR without narrative description, and particularly without a

citation to a specific subsection, can negatively affect the clarity of the permit,

especially for members of the public. Table 2.2 below shows the use of IBR in

the four States reviewed. 
14

Table 2.2: Use of IBR in State Permits Reviewed 

 State Number of

permits

with IBR

Number

reasonably

discernable

OIG comments related to IBR

New

York

10 10 1. Generally paraphrase requirements; however, in a 

 few cases it was necessary to reference 40 CFR.

North 

Carolina

9 7 2. Generally IBR was followed by paraphrasing; 

 however, not always for 40 CFR citations.

3. In two cases, cites to 40 CFR were not specific 

 enough to determine which section was 

 applicable.

Ohio 10 9 4. Generally paraphrase requirements; however, in 

 most permits it was necessary to reference 40 

 CFR or State regulations for at least one 

 requirement.

5. One instance where a citation was not specific 

 enough to determine applicable section.

Texas 10 6 6. Texas permits relied extensively on IBR. 

 Requirements can be reasonably discernable if

 readers can access State regulations and 40 

 CFR; however, citations were often not specific 

 enough to identify the applicable section of the 

 regulation.

7. Difficult to discern which general operating permit

 

 requirements apply to a source without a list of 

 emissions units at a specific site.

8. In general, extensive IBR complicates permit

 reviews because the applicable requirements are 

 not clearly stated on the face of the permit.

Total 39 (98%) 32 of 39 

(82%)

Source: OIG analysis of State Title V permit information. Note: See Appendix B for details of our permit

review work in the above four States.

How Well Permits Reflected the Underlying Regulations

In North Carolina and New York, the permit text for the requirements we

reviewed matched that of the underlying State or Federal regulation. In Texas,

the permits had very little narrative, so only a limited amount of text was

available to compare with the regulations. For those we were able to crosscheck, we did not discover such discrepancies. 

We were not able to answer this question for several Ohio permits, though, 

because the permits did not include a citation to the underlying regulation–they

provided a narrative description only. If the underlying regulation is not

identified, it is difficult to determine whether the State is correctly incorporating

the requirement. In a letter to EPA Region 5 officials in January 2002, Ohio

committed to address this issue upon permit renewal and to incorporate the

origin of authority for each permit term and condition. In all States, permit

citations that were general, rather than specific, made it difficult to verify

whether or not the content of the permit matched the underlying regulation. 
10Permits typically contain permit shield language in the general terms and conditions. Some also

incorporate provisions shielding certain emissions units from specific requirements.

11In its response to our draft report, Texas explained that since the permit in question was issued, the

specific regulation cited had changed. The permit shield citation was not updated when the regulation changed,

therefore the permit text was no longer consistent with the specific regulatory citation.

12Ohio began identifying whether streamlining existed in permits in their SBs in 2002.

15

Using Permit Shields and Streamlining

Of the 40 permits we reviewed, 7 included specific permit shield provisions

beyond the language in the general terms and conditions10--2 in North Carolina

and 5 in Texas. Based on our review of how well the SBs explained the shields,

the two shields in North Carolina, and four of those in Texas, did not appear to

be misapplied. One permit in Texas listed the rationale for the permit shield

through a general IBR. The citation referred to in the Texas State regulations did

not provide enough information to determine whether the shield was

appropriately applied.11

Streamlining in Title V permits occurs when an emissions unit is subject to

overlapping regulations and the permitting authority condenses the multiple

requirements into one requirement in the permit, which should be the most

stringent. We asked the States we visited general questions about streamlining

and looked for evidence of streamlining in the permits. However, unless the

permit or its SB explicitly discussed streamlining, it would have been difficult

for us or the public to determine whether streamlining provisions applied. Ohio

was the only State we reviewed that identified streamlining in its SBs.12 The

State did not, however provide a side-by-side comparison of requirements to

justify which requirement was selected as the most stringent. Without clearly

identifying streamlining and discussing the requirements, it is difficult for the

public and other outside permit reviewers to determine whether the streamlining

process is being used correctly. 

Overall Permit Clarity

Generally, we noted inconsistencies in the clarity of the permits we reviewed in

New York, Ohio, and Texas. To determine whether the permit provisions were

clear, we reviewed the permit requirements for specific emissions units and

attempted to identify what was expected of the source in terms of meeting

emissions limitations. Besides taking into account the clarity elements discussed

above, and the extent to which outside research was required to identify these

requirements, if any, we also considered how these elements affected the

monitoring, testing, and reporting requirements in permits. Most provisions and

requirements in the permits from these States were clearly incorporated;

however, some were not. Among the permits we reviewed, the specific factors

that we determined affected overall clarity included:
13New York’s permits are generated automatically by a computer program created to process Title V

permits. According to New York officials, changes to the computer generated permit system are difficult and would

require a significant outlay of funds to the contractor. The State spent an estimated $8-10 million to develop the

system in 1992.

14See page 18 for further discussion of monitoring requirements.

16

• Extensive use of IBR made permit provisions more difficult and time

consuming to review (Texas), which could deter members of the public

facing a limited comment period from reviewing permits.

• In New York, requirements for a specific emissions unit may be scattered

throughout a permit, some of which are more than 100 pages in length.

making it difficult to get a complete picture of a unit’s requirements,13

• Using vague permit requirements, such as emissions testing is “upon

request,” or “if required,” made it unclear what conditions would trigger a

source to be tested unless additional information was provided (New York

and Ohio).

• In States that frequently incorporated AP-42 emissions factors to determine

compliance, or relied on surrogate monitoring, it was not always clear how

these alternate methods would satisfy the underlying requirements (Ohio and

North Carolina).14

As indicated above, problems involving a number of different permit elements

impacted the clarity of permits, potentially affecting the ability of the public to

clearly understand what is expected of a source. OAQPS addressed several

clarity issues, including when it is appropriate to reference requirements in a

permit and the proper use of streamlining, in guidance documents issued in 1995

and 1996 (White Papers Number 1 and 2). A series of “Title V Permit Writers’

Tips” developed by EPA Region 3 also addressed clarity elements, such as

streamlining and permit shields. As discussed on page 13, the 5th Circuit Court

of Appeals found that nothing in the CAA prohibits incorporation of applicable

requirements by reference. EPA regions have sometimes addressed other clarity

issues through permit reviews and responses to public petitions. For example, in

response to a public petition, Region 5 officials stated that they would work with

Ohio to clarify vague permit language. 

Some Statements of Basis (SBs) Missing Key Elements

Generally, EPA officials believe SBs in many States have problems. Officials in

8 of 10 EPA regions told us that inadequate or missing SBs were a problem in

some of their State or local permitting authorities. Environmental groups also

told us that SB inadequacy problems and missing SBs were an issue in a number

of public petitions. Although our review of SBs in the States we visited indicated

that SBs have improved, we identified incomplete SBs in all of the States we

reviewed. Ohio questioned the need for detailed SBs since they asserted that

much of the same information was found in their permits. Although EPA’s

Region 5 issued SB guidance to Ohio, OAQPS has not issued nationwide
15Additional EPA petition responses and court decisions have addressed the requirement that SBs be

included with permits. 

17

guidance on SB content. Officials in six EPA regions identified the lack of EPA

guidance as a problem for SBs. We believe complete SBs not only provide a

legal and factual basis for permits, but also improve permit clarity and allow for

better public participation. 

The regulatory basis for SBs is found in 40 CFR 70.7 (a)(5), which states that the

permitting authority must prepare a statement for each draft permit to provide the

legal and factual basis of the permit. The OAR has not issued any guidance on

what should be included in an adequate SB. EPA’s position is that permitting

authorities could obtain information on the contents of acceptable SBs by

reviewing prior court case decisions and EPA’s responses to public petitions. 

(See Chapter 3 for a more complete discussion of this issue.) However, not all

concerned officials in EPA Regions may be aware of applicable court decisions

or public petitions. A memorandum from the Chief of EPA Region 5's Air

Programs Branch to the Chief of Ohio’s Division of Air Pollution Control, dated

December 20, 2001, and an EPA Region 9 petition response in FY 2004, were

the most complete and recent EPA documents we located that provided specific

guidance on what information should be included in an adequate SB.15 The EPA

Region 5 memorandum referred to above stated that the following information

should be in the SB:

• discussion of the monitoring and operational requirements,

• discussion of the regulatory applicability determinations,

• explanations of any conditions from previously issued permits that are not

being transferred to the Title V permit,

• discussion of streamlining requirements, and

• other factual information including a listing of prior Title V permits issued to

the same applicant at the plant, attainment status, construction, and

permitting history of the plant and compliance history of the plant.

EPA Region 9 provided additional guidance on the contents of SBs in a recent

response to a public petition. According to a key OAQPS official, issued EPA

regional guidance and EPA responses to public petitions drafted by EPA regional

offices, and issued by the Administrator, should be considered guidance for SB

content. However, we believe a regulation explaining the content requirements

of an adequate SB should be issued because not all EPA regions may be aware of

guidance issued through petition responses or other EPA regional guidance. For

example, during the course of our review, we noted one instance in which one

EPA region was unaware that EPA’s Region 9 had provided additional guidance

on SB content.

EPA regional officials and environmental groups identified problems with SBs. 

EPA regional officials we interviewed identified 20 permitting authorities that
1640 CFR 70.6(a)(3)(i)(B)

18

either did not prepare SBs or had inadequate SBs. For example, officials in

Region 1 identified three States that did not prepare SBs because these States

believed that their permits contained information on the legal and factual basis of

permits sufficient to meet Title V’s requirements. Officials in two EPA regional

offices cited the lack of rationales for monitoring decisions in SBs as a recurring

problem. Officials from three environmental groups we contacted believed that

inadequate SBs were a problem. From these officials’ perspectives, the main SB

problem was the excessive disparity in SB content from State to State. 

Our review of SBs (or equivalent documents) in the four States we visited

indicated that each SB was missing at least one or more of the suggested key

elements identified above in the EPA Region 5 memorandum. The key

information in the SBs we reviewed was not consistently presented in each

permit in each of the four States. SBs or equivalent documents prepared by these

permitting authorities have evolved over time and the more recent SBs generally

included more of the key elements suggested in regional guidance. However,

none of the SBs contained all of the key elements suggested in the Region 5

memorandum mentioned above. For example, 2 of the 10 permits we reviewed

in New York did not have a corresponding SB because New York did not

prepare SBs for their early Title V permits. Texas originally prepared “Technical

Summaries”, but later began using SBs that were more complete. These

improvements in SBs resulted from EPA NODs and commitment letters. (See

Chapter 3 for a more detailed discussion of NODs and commitment letters.) 

However, further improvements in consistency could be made if nationwide

guidance existed on the key elements necessary in SBs. Our observations on

SBs, or equivalent documents, for the States we reviewed are discussed in

Appendix C.

Monitoring Provisions In Permits Varied, Adequacy Questioned

Problems exist in the adequacy of monitoring provisions in Title V permits in

many States. Officials at OAQPS, all 10 EPA regions, and a number of

environmental groups identified problems with monitoring provisions in permits. 

Similar problems were identified in our review of a sample of Title V permits in

four States. Title V regulations (40 CFR Part 70.6) contain two provisions

requiring monitoring in permits. These provisions are intended to provide

sufficient information to enable emitting sources, permitting authorities, EPA,

and the public to determine whether or not facilities are meeting applicable

requirements. The first provision referred to above, the periodic monitoring

provision, requires, in the absence of other applicable requirements, “...periodic

monitoring sufficient to yield reliable data from the relevant time period that are

representative of the source’s compliance with the permit...”16 The second

monitoring provision, sometimes referred to as the “sufficiency,” or “umbrella”

monitoring provision, requires that each permit contain “monitoring, reporting
1740 CFR 70.6(c)(1)

18While some Federal and State air quality regulations include specific monitoring requirements, others

have “gaps” in monitoring requirements and do not specify the type or frequency of monitoring for certain emissions,

or both. 

19

and record keeping requirements sufficient to assure compliance with the terms

of the permit.”17 Some underlying air quality requirements in Federal

regulations or approved SIPs explicitly require facilities to perform a specific

type of monitoring; however, many do not. Prior to Title V, there was no Federal

requirement to add monitoring to permits if the underlying regulations applicable

to the source did not specify the type or frequency of monitoring. Both the

periodic and umbrella monitoring provisions have been subject to numerous

interpretations by EPA and the courts. We believe this has contributed to

inconsistencies in the adequacy of monitoring nationwide and has affected the

ability of stakeholders to determine source compliance with applicable

regulations. 

Stakeholders Identified Problems With Monitoring Provisions

Officials at OAQPS identified overall problems with the adequacy of monitoring

requirements in Title V permits. One key OAQPS official told us that permits

are sometimes issued without monitoring provisions. For example, Texas

generally did not include periodic monitoring provisions in Title V permits until

2002. Another key OAQPS official noted that there is a substantial range in the

adequacy of provisions which State permitting authorities insert in permits to fill

monitoring gaps in the underlying requirements applicable to a source.18 OAQPS

officials stated that State permitting authorities vary significantly in the quality of

the monitoring provisions they include in permits, and that substantial Title V

monitoring problems exist in some cases. OAQPS officials also expressed

concern that oversight in some EPA regions does not focus enough on ensuring

the adequacy of monitoring provisions in permits. OECA officials told us that

inadequate monitoring provisions in permits can hamper enforcement efforts. 

They stressed the importance of sufficient monitoring provisions in the effective

enforcement of Title V permit requirements, noting that monitoring is the key to

ensuring that sources comply with air quality rules and regulations.

Officials from all 10 EPA regions indicated that they provided permit review

comments on the adequacy of monitoring provisions in Title V permits in one or

more of their permitting authorities. Officials from several EPA regions stated

that comments they provided related to monitoring provisions were frequent, and

were among the most common problems observed in permits. Some officials

noted that many of the comments provided were made early in the Title V

program, and that improvements in monitoring provisions have been made over

time. Some EPA regional officials also noted that most review comments are

resolved in the draft phase of the permit, and few formal objections to proposed

permits are issued. 
20

EPA regional officials also assessed the strengths and weaknesses of monitoring

elements in permits issued by permitting authorities in their respective regions.

Most EPA regional officials indicated that the majority of permitting authorities

include adequate monitoring provisions in their permits. However, as shown in

Table 2.3 below, EPA officials in nine EPA regions identified permitting

authorities in their area that have had problems with incorporating inadequate or

minimally acceptable monitoring provisions in permits, particularly periodic

monitoring provisions. Several regions noted that the subjective nature of air

pollution monitoring, together with the lack of EPA guidance on appropriate

monitoring, leads to inconsistencies in permit provisions and essentially requires

a case-by-case determination of appropriate monitoring. 
21

Table 2.3: Examples of Monitoring Problems In Title V Permits Identified By Regions 

 EPA

Region

Permitting

authority

EPA Regional officials’ comments to OIG

1 Maine - Inappropriately labeled monitoring as ‘State-only’ enforceable in 

 some draft permits.

2 General - Monitoring is progressing; work closely with States to determine 

 adequate monitoring; lack of guidance leads to inconsistencies.

3 Maryland - State has difficulty with streamlining; sometimes leaves out 

 requirements that are still applicable, which impacts monitoring.

Pennsylvania - Monitoring in synthetic minors needs strengthening. 

4 Mississippi - Region provides training, working with State to improve permits.

LouisvilleJefferson Co., 

Kentucky

- Some problems with monitoring provisions.

Shelby, Tenn. - Region is providing training to new staff.

5 Indiana - Lack of sufficient monitoring requirements in some permits; 

 more monitoring detail needed in SBs.

Illinois - Inadequate monitoring provisions; fail to specify frequency of testing 

 (“upon request” is not sufficient).

Minnesota - Inadequate periodic monitoring in some permits.

Ohio - Should include more detail regarding monitoring decisions in SBs.

6 Texas - Monitoring provisions generally adequate, but IBR can make them 

 unclear.

Louisiana - Lack of sufficiency in opacity monitoring.

7 Kansas - Adequate, but require minimally acceptable level of testing and 

 monitoring.

Iowa - Require the barest minimum level of testing and monitoring.

Nebraska

(including

local

permitting

authorities)

- Adequate, but problems with PM and opacity monitoring.

8 Colorado - Periodic monitoring issues; CAM deficiencies.

Montana - CAM deficiencies in renewal permits.

Utah - Inadequate/missing periodic monitoring; CAM deficiencies.

Wyoming - Periodic monitoring issues; CAM deficiencies. 

9 Arizona - Sufficient monitoring is an issue, but improving recently due to EPA 

 comments and objections. 

Bay Area Air

Quality

Management

District

- Early problems with periodic monitoring were addressed, but some 

 issues remain.

10 Idaho,

Oregon

Washington 

- Need to improve monitoring.

Source: Comments provided by EPA regional officials in their written and oral responses to OIG’s structured

interview questions.
19Environmental group representatives contended that some permits do not declare which type of

monitoring a facility must use, but rather provide several different options. We found one example of this practice in

an Ohio permit. The source was provided the option of either conducting continuous SO2 monitoring or coal

sampling to determine compliance. 

20Baron, David; et al., National Environmental Trust, “Title V Operating Programs in Texas, Ohio and

Georgia,” June 11, 2001.

21OAQPS and EPA regional officials stated that the majority of issues raised in public petitions are denied.

22In its response to the draft report, EPA commented that it did not always disagree with monitoring issues

raised in New York petitions against individual permits.

22

Representatives from 8 of the 10 environmental groups we interviewed also

expressed concerns regarding the incorporation of monitoring provisions into

Title V permits. Several representatives stated that permits, in general,

frequently lack the appropriate monitoring requirements. Representatives also

expressed concern regarding the clarity of monitoring provisions from the

general public’s perspective. They noted that when monitoring provisions are

included in permits, factors such as extensive IBR and listing several different

monitoring options in the permit, instead of specifying one monitoring

requirement, can limit permit clarity for the public.19 According to one group,

permitting authorities have particular trouble filling gaps in monitoring

provisions in permits when monitoring requirements are not expressly prescribed

by the SIP. 

A number of environmental groups contributed to a June 2001 report on the Title

V programs in Texas, Ohio, and Georgia.20 The authors of this report contended

that none of these State programs required sufficient monitoring provisions in

permits, particularly with regard to opacity requirements. Additionally, a number

of public petitions filed by environmental groups against proposed permits and/or

State permitting programs cited inadequate monitoring provisions as a concern. 

Some of these petition issues were granted by EPA; others were denied because

EPA did not find a basis for the specific complaint.21 For example, EPA issued a

NOD to Texas in response to public petition concerns that monitoring provisions

were not adequately incorporated into the State’s general operating permits. 

EPA disagreed with monitoring concerns raised in public petitions against the

New York and Ohio permitting programs, stating that while they would watch

for individual problems in permits, overall the programs included adequate

monitoring and met the minimum requirements of 40 CFR Part 70.22

EPA Guidance on Monitoring in Title V Permits

Title V’s monitoring requirements have been subject to multiple interpretations. 

OAR first issued guidance on periodic monitoring requirements (40 CFR section

70.6(a)(3)) in 1998. This guidance suggested that permitting authorities review

each applicable underlying requirement to determine if the monitoring included

in permits was sufficient to determine source compliance with the CAA. If
23Appalachian Power Co.v Envtl. Protection Agency, 208 F.3d 1015, 1028 (D.C. Cir. 2000)

24Utility Air Regulatory Group, Inc. v. Envtl. Protection Agency, 320 F.3d 272, 276 (D.C. Cir. 2002)

25Environmental Integrity Project v. Envtl. Protection Agency No. 04-1083 (D.C. Cir. Filed Mar. 19,

2004).

23

monitoring provisions were insufficient, then additional monitoring provisions

could be added. 

The validity of this guidance was challenged in court and in the 2000

Appalachian Power case, the D.C. Circuit Court of Appeals set the EPA

guidance aside, ruling that the Agency had overextended its authority.23 Under

the Court’s ruling, if the underlying State or Federal standard requires a source to

perform a specific type of monitoring or testing more than one time, this satisfies

the periodic monitoring language of Title V. Further, the ruling specifies that

more frequent monitoring can only be added if the underlying standard requires

no periodic testing, specifies no frequency, or requires only a one-time test. In its

ruling, the court noted that Congress did not authorize EPA to require States, in

issuing Title V permits, to revise monitoring requirements in existing Federal

emissions standards. EPA has not issued any additional periodic monitoring

guidance since 1998.

The Court’s 2000 ruling did not address the “sufficiency monitoring” provision

of Title V (40 CFR section 70.6(c)(1)). On September 17, 2002, EPA proposed

rule on sufficiency monitoring. The proposed rule stated that where applicable

State or Federal requirements already require periodic testing or monitoring, but

that monitoring is not sufficient to assure compliance, the permit must meet the

requirements for sufficiency monitoring. This proposed rule was also challenged

in court.24 As part of a subsequent legal settlement with industry plaintiffs, EPA

revised its sufficiency monitoring rule and released a final rule, now referred to

as “umbrella monitoring,” on January 22, 2004. In this final rule, EPA

determined that Title V does not establish a standard for requiring or authorizing

reviewing and enhancing existing monitoring provisions. States may only add

monitoring provisions in permits, or “gap-fill,” where the underlying regulations

are silent on either the type or frequency of monitoring required, or where

monitoring is not periodic. A coalition of environmental and public health

groups petitioned the Court to review this final rule on March 18, 2004. This

latest case is pending in the D.C. Circuit Court of Appeals.

25

Officials from six EPA regions told us that the lack of EPA guidance on Title V

periodic monitoring requirements is a problem and indicated that such guidance

is needed. Officials in two regions noted that the Court ruling in the 2000

Appalachian Power case negatively affected the ability of EPA to provide

periodic monitoring guidance. Officials in another two regions stated that the

lack of EPA guidance on monitoring requirements increased the burden on the

regions to make case-by-case determinations of monitoring adequacy in permits. 

Officials in another region told us that the lack of EPA periodic monitoring
26As part of the 2004 umbrella monitoring rule, EPA committed to three future rulemaking actions,

including (1) improving source monitoring for opacity and particulates by providing monitoring guidance input to

the upcoming implementation of the National Ambient Air Quality Standards (NAAQS) for fine particulate matter

(PM) 2.5; (2) identifying and considering improving possibly inadequate monitoring in Federal rules and SIPs by

issuing an advance notice of public rule-making (ANPR) calling for public comment; and (3) publishing a separate

proposed rule to address what constitutes “periodic monitoring” under section 70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B).

27For the purposes of our review, we considered surrogate monitoring to be using means other than direct

emissions monitoring or testing to measure a source’s compliance with an applicable State or Federal requirement.

See Table 2.5 for examples of surrogate monitoring we noted during State permit reviews.

28Our assessment of the sufficiency of monitoring provisions was based essentially on the inclusion and

clarity of these key permit elements. We did not independently assess the appropriateness of the technical or

engineering aspects of each monitoring provision.

24

guidance caused inconsistencies among States and delayed permit issuance. 

OAQPS officials indicated that they have plans to issue a rule clarifying what

constitutes periodic monitoring. However, these officials were uncertain of the

time frame for rule issuance and noted that previous efforts to address

monitoring guidance needs have been subject to legal challenges and lengthy

delays.26

 

Some EPA regional officials also commented on the possible effect of the new

umbrella monitoring rule – that the new rule could limit the ability of State and

local permitting authorities and EPA to require adequate monitoring in Title V

permits. For example, prior to this rule, Region 4 officials worked extensively

with Florida’s Title V program officials to improve monitoring provisions in

permits because they determined that certain requirements in the SIP did not

contain monitoring sufficient to assure compliance. Region 4 officials noted

that, at the time, EPA’s interpretation was that States could supplement

monitoring requirements with additional periodic monitoring when the existing

requirements were found to be inadequate. As discussed above, EPA has a

different interpretation in the new umbrella monitoring rule. OAQPS officials

stated that they plan to release an advance notice of proposed rulemaking

(ANPR) calling for public comment on potential monitoring inadequacies in

SIPs and Federal regulations.

Monitoring Issues Identified In Reviewing State Permits

In reviewing State permits, we assessed the adequacy of the following elements

of monitoring provisions:

• inclusion of periodic monitoring;

• inclusion of compliance assurance monitoring (CAM); 

• gap-filling underlying State and Federal regulations; 

• use of surrogate monitoring;27 and 

• the overall sufficiency of permit requirements to determine compliance.28
29For the purposes of our review, we defined periodic monitoring as monitoring of applicable regulated

emissions required more than once during the term of the permit. The frequency of monitoring in the permits

generally reflected either the underlying State or Federal regulation. In some cases, the monitoring frequency was

added as gap-filling where the underlying regulation was silent.

25

While all of the permits we reviewed included monitoring on a periodic basis for

at least some applicable requirements, we found that, in general, the permits did

not consistently incorporate periodic monitoring for all requirements. The

majority of the permits gap-filled at least one requirement by adding the

frequency and/or type of monitoring where this was not specified in the

underlying regulation. The majority of the permits we reviewed also included

some type of surrogate monitoring for one or more requirements, the adequacy of

which varied. Overall, we found that many of the permits we reviewed contained

monitoring provisions sufficient for an outside observer to determine compliance

with the underlying requirements. However, more than half of these permits

contained both sufficient and insufficient monitoring requirements.

Provisions for Periodic Monitoring

All of the Title V permits we reviewed contained periodic monitoring provisions

for at least some permit requirements.29 Periodic monitoring was not, however,

consistently incorporated into each requirement we reviewed in each State. To

varying degrees, we found examples of a lack of periodic monitoring in permits

in all of the States we reviewed. In some cases, State officials explained that

periodic monitoring was not necessary because the type of material used by the

source reduced the incidence of pollutant emissions to below regulated levels. In

these cases, permits required the source to maintain records of the material makeup, but not to directly monitor the output of emissions from the unit. For

example, 

• North Carolina provided this type of rationale in permit statements of basis. 

• Several Texas permits contained few periodic monitoring provisions because

the State did not start including them for all applicable requirements until

December 2002. 

• In New York, monitoring for some pollutants from some emissions units was

required only once during the permit term, or upon request by the permitting

authority. New York statements of basis did not provide clear rationales for

these monitoring decisions and the permit format made it difficult to track all

of the requirements for an emissions unit. 

• In Ohio, we found some cases where the frequency of monitoring was not

specified or where State officials asserted that monitoring was not necessary

because of the type of material used, however, explanations for these

decisions were not always contained in the statements of basis.

Compliance Assurance Monitoring

In 1997, EPA promulgated new regulations to implement CAM for major

stationary sources subject to Title V that rely on pollution control devices. CAM
30One permit we reviewed in Texas submitted its Title V application in 1999. However, the facility’s

emissions units were not reliant on emissions control devices and were therefore not subject to CAM.

26

requires owners or operators of sources to conduct monitoring that provides a

reasonable assurance of compliance with applicable requirements. Sources with

Title V applications completed before April 1998 were not required to

incorporate CAM into their permits until renewal of their Title V permit

application. All but one of the Title V permits we reviewed submitted their

initial applications by April 1998 and thus were not required to address CAM.30

CAM provisions are required to be added upon permit renewal. OAQPS

officials anticipate that, once implemented, the new requirements in CAM will

improve monitoring in a large number of Title V sources. Officials from several

Regions noted that CAM inclusion is one of their criteria elements for permit

review in order to ensure that these provisions are incorporated adequately.

Gap-filling Underlying State/Federal Regulations

We found examples of States adding monitoring provisions, or “gap-filling,”

where the underlying requirements were silent on either the type or frequency of

monitoring in 90 percent of the permits we reviewed. As shown in Table 2.4

below, in these permits, the type/method or frequency of monitoring for at least

one requirement we reviewed exceeded the provisions in either the underlying

State or Federal regulation. Under EPA’s current interpretation of periodic

monitoring, as specified by the D.C. Circuit Court in the Appalachian Power

case, a permitting authority may add monitoring requirements to the Title V

permit if the underlying State or Federal standard requires no periodic testing,

specifies no frequency of testing, or requires only a one-time test. In the permits

we reviewed, specifying the frequency of monitoring when the underlying State

regulation was silent was the most common type of gap-filling used by States.

Table 2.4: Permits That Added Monitoring Requirements to Fill Gaps in Underlying 

 Regulationsa

 State Number of permits that

added gap-filling

monitoring

Number that added

monitoring type

Number that added

monitoring

frequency

New York 8 3 7

North 

Carolina

9 5 9

Ohio 9 7 7

Texas 10 2 10

Total 36 (90%) 17 of 36 (47%) 33 of 36 (92%)

Source: OIG analysis of State Title V permit information

a Note: Some permits added both the type and frequency of monitoring. See Appendix B for details

concerning our permit reviews in the above 4 States.
31The name of the air pollution control program in Ohio is the Ohio Environmental Protection Agency.

32The EPA AP-42 manual states that the Agency does not recommend the use of AP-42 factors as sourcespecific permit limits and/or as emission regulation compliance determinations.

33“Summary of Emissions Factors Improvement Project Fact Finding Survey,” prepared by EC/R

Incorporated of Chapel Hill, NC for OAQPS, June 2004.

27

Surrogate Monitoring

In 29 of the 40 permits we reviewed (73 percent), sources were permitted to use

surrogate monitoring, rather than direct emissions monitoring or testing, to

measure compliance with a State or Federal requirement. Some of the most

frequently observed types of surrogate monitoring or surrogate methods to

determine compliance included fuel certificates to verify the sulfur content of the

fuel, AP-42 emissions factors, and using opacity monitoring to measure

particulate matter. Surrogate monitoring was more commonly found in our

sample of North Carolina, New York, and Ohio permits than in Texas permits. 

The emissions factors used as surrogate measures in the permits we reviewed

ranged in quality. Some were considered acceptable for use in estimating an

individual facility’s emissions, while other factors were less reliable. For

example, AP-42 emissions factors were identified as surrogates for determining

compliance with applicable requirements in six Ohio permits we reviewed, and

in four North Carolina permits. An EPA Region 5 official noted that AP-42

factors are sometimes used to determine instances where periodic monitoring

provisions are not necessary–for example, when the emissions factors indicate

that the source’s potential to emit is not big enough to ever exceed the applicable

emissions limit. 

In a November 2001 letter to Ohio EPA,31 Region 5 officials commented that

Ohio’s Title V permits often rely on AP-42 factors as the compliance method. 

The Region stated that they do not believe that AP-42 factors are meant to be a

basis for compliance.32 However, they also stated that they believe Ohio EPA’s

use of these factors through a ranking system is appropriate. Ohio EPA ranks

eight emissions factors from best to worst; AP-42 type factors are considered the

least reliable on the list. In a June 2004 EPA report identifying where the

emissions factors program needs to be improved, government, industry and

environmental group stakeholders commented that EPA guidance is needed as to

when it is appropriate to base or enforce permit and enforcement limits with

emissions factors.33 See Table 2.5 below for types of surrogate monitoring

identified by State.
28

 Table 2.5: Surrogate Monitoring Or Compliance Determination In Permits

 State Number of permits

that include

surrogates

Type of surrogate monitoring or compliance determination

New

York

10 - Certification of SO2 content of fuel

- Opacity testing to measure PM

- Temp/pressure gauges for VOCs

North 

Carolina

8 - Certification of SO2 content of fuel

- AP-42 emissions factors (4)

- Record weights of raw materials

Ohio 9 - Fuel testing to determine S02 content

- AP-42 emissions factors (6)

- Measuring volume to estimate VOCs

- Source specific non-AP-42 emissions factor

- Computer software program (Tanks 4.0)

- Measure H2S to estimate SO2 emissions

Texas 2 - Requirement to use a specific fuel

- Source test performed on similar sources

Total 29 of 40 (73%) 33 of 36 (92%)

Source: OIG analysis of State Title V permit information. Note: See Appendix B for details concerning our

permit review results in the above 4 States.

Many Monitoring and Reporting Requirements Sufficient To

Determine Compliance

We considered whether the monitoring and reporting provisions included in the

permits we examined appeared to be sufficient for Government officials and

members of the general public to determine source compliance with permit

requirements. Taking into account the monitoring elements and permit clarity

factors discussed previously, we found that many requirements in the permits we

reviewed contained sufficient provisions to enable an outside party – with ample

time and effort – to determine the source’s compliance with the applicable

regulation. However, in over half of the permits, we noted that while provisions

for one emissions unit/pollutant were sufficient, provisions for another

requirement in the same permit appeared to lack clarity or key information. (See

Table 2.6 below). For example, a permit may contain comprehensive monitoring

provisions for visible emissions, yet not specify the monitoring frequency for

another pollutant. In some cases, a clearer permit format or a discussion of the

monitoring decision in the SB could address potential insufficiencies. 

Overall, areas that we found potentially affected requirement sufficiencies

included:

• The monitoring frequency was not specified or no periodic monitoring

included.

• The IBR to general rules did not clearly specify monitoring and reporting

requirements.

• General operating permits did not identify emissions units at a source.

• Monitoring and reporting were “upon request by the agency” with no specific

conditions.
29

• Reliance was on less reliable AP-42 emissions factors instead of actual

emissions.

Table 2.6: Overall Sufficiency Of Monitoring Requirements In Title V Permits

 State Number of permits where all

requirements reviewed were

sufficient to determine

compliance

Number of permits where some

requirements were potentially not

sufficient to determine

compliance

New York 5 5

North Carolina 6 4

Ohio 3 7

Texas 3 7

Total 17 of 40 (43%) 23 of 40 (58%)

Source: OIG analysis of State Title V permit information. Note: See Appendix B for details concerning our

permit review results in the above 4 States.

As indicated above, the overall sufficiency of monitoring provisions in Title V

permits is impacted by a number of different factors. Our evidence suggests that,

given the high rate of gap-filling in permits, there may be a significant lack of

sufficient monitoring requirements in State and Federal regulations. State and

local permitting authorities incorporated periodic monitoring in permits on a

case-by-case basis, with inconsistent results. Region officials frequently

commented on monitoring problems in their review of permits, however

problems remain. Region efforts to review monitoring requirements in permits

were impacted by the lack of national policy on key issues. OAR efforts to

establish national guidance on monitoring met with limited success and were

subject to court challenges. The January 2004 rule on umbrella monitoring may

limit the ability of State and local permitting authorities to improve underlying

monitoring provisions. However, it contains OAR commitments to issue

periodic monitoring guidance and to address monitoring insufficiencies in State

and Federal regulations. 

Improvements Needed in Annual Compliance Certification Content

Title V requires that responsible officials at permitted sources sign ACCs. The

ACC is an important compliance tool that provides a statement of the source’s

compliance status with respect to its permit terms over a 1-year reporting period. 

Congress included the ACC provisions in Title V to ensure that the responsible

official certify that they have knowledge of the plants’ CAA obligations and

whether the plant met these obligations. Non-compliance with ACC provisions

can result in penalties including fines and imprisonment. 

The ACCs submitted by the Title V permit holders in the four States we visited

differed substantially as to completeness from State to State and did not

consistently address compliance for the same terms and conditions in the
30

permits. OAR has not issued guidance that explains the required terms and

conditions that should be certified for compliance in an ACC. As a result, Title

V sources have not been required to report their compliance status consistently

throughout the country. 

The requirements for ACCs are found in 40 CFR Part 70.6(c)(5)(i) . Part 70

requires that ACCs be signed by a responsible official and submitted annually to

both EPA and the permitting authority. In general, the ACCs should include

each of the requirements listed in Table 2.7 below.

Table 2.7: Key Requirements Of Annual Compliance Certifications Under Title V

Key Annual Compliance Certification Provisions and Requirements

Must identify and list each term or condition of the permit that is the basis of the compliance certification.

Must identify the method(s) or other means used by the owner or operator to determine compliance

status with each term and condition during the certification period.

Must identify the status of facility compliance with the terms and conditions of the permit for the period

covered by the certification, including whether compliance during the period was continuous or

intermittent. 

The certification shall identify each deviation and take it into account in the compliance certification. The

certification shall also identify, as possible exceptions to compliance, any periods during which

compliance is required and in which an excursion or exceedance occurred as defined under part 64 of 40

C.F.R.

Any other facts as the permitting authority may require to determine the compliance status of the source.

Many of the key stakeholders we interviewed cited problems with ACCs. EPA

officials from four of the 10 regional offices cited the lack of EPA guidance for

ACCs as an underlying cause for the problem. Also, four environmental group

representatives believed that problems were associated with ACCs. The lack of

completeness of ACCs was cited as the main problem because ACCs lacked

adequate compliance reporting requirements. An industry representative we

interviewed believed that ACCs required sources to certify compliance on too

many parameters. As noted in Chapter 3, a key OAQPS official told us that

OAR no longer issues nationwide guidance. Instead, guidance has been issued

by some EPA regions, and there have been associated rulings in court cases and

EPA responses to public petitions. A key OAQPS official told us that future

OAQPS guidance will require a rulemaking.

Certifications Received By the States Were Inconsistent

We reviewed, when possible, the most recent ACCs submitted for the permits

in our samples in four States to determine whether the ACCs submitted by the

sources met the requirements in 40 CFR Part 70.6. In some instances, a year

had not passed since the permit had been issued and an ACC was, therefore, not

due. In all, we reviewed 30 ACCs; 10 in New York, 7 in North Carolina, 7 in

Ohio and 6 in Texas. In one instance, an ACC which was due had not been

submitted to Texas for activities in the past year. As a result of this source’s

failure to submit an ACC, a State of Texas official said that an enforcement

action will be taken against the source. 
34Natural Resources Defense Council, Inc.v Envtl. Protection Agency, 194 F.3d 130 (D.C. Cir. 1999).

31

In general, we found problems with (1) consistency in ACC reporting

requirements for the permits we examined in the four States we visited and (2)

completeness of ACCs submitted by permitted sources in Texas and Ohio. We

believe the problems were at least, in part, attributable to the lack of adequate

EPA guidance on ACC content. The differences we found related to whether the

facilities certified compliance in the ACC with each permit term and condition 

or whether the facilities simply certified compliance with the entire permit

except for any identified deviations. In the October 22, 1997, preamble to Part

70 revisions - Compliance Certification Requirements (62 FR 54937), EPA

allowed the certification to be a short, concise compliance statement that does

not restate detailed information that had already been provided. However, two

States we visited required their sources to certify compliance in ACCs with each

permit term and condition. Since these two States have successfully required

comprehensive ACCs from their sources for some time, we believe a similar

nationwide requirement would not be unduly burdensome. The results of our

review of ACCs in the four States are provided in Appendix C. 

Guidance and Rules on Compliance Certifications Not Issued

The OAR has not issued sufficient guidance or rules on ACC content. First,

EPA has not issued drafted guidance that identifies what terms and conditions

should be certified in ACCs. Second, EPA issued a rule in June 2003 to address

a court decision related to defining terms in ACCs and inadvertently left out

wording related to credible evidence. EPA has not issued the rule to correct the

error, but it is OIG’s understanding that a revised rule is going to be issued.

OAQPS officials we talked with recognized that the ACCs received by the

States were inconsistent with respect to the content of the ACCs. However,

EPA has not issued any guidance that would make ACC requirements uniform

among the States. (See Chapter 3 for additional information on unissued

guidance.)

On October 29, 1999, the United States Circuit Court of Appeals in Natural

Resources Defense Council considered the Agency’s ACC requirements for its

final operating permits program and concluded that these requirements did not

address whether the permittee had been in “continuous or intermittent”

compliance.34 In June 2003, EPA issued a final rule that removed the text that

requires responsible officials to identify whether the compliance determination

methods provide continuous or intermittent data. EPA replaced the text with a

requirement to state whether compliance was continuous or intermittent during

the period covered by the ACC.

EPA amended 40 CFR 70.6 (c)(5)(iii)(B) and 40 CFR 70.6 (c)(5) (iii)(C) to

state that continuous or intermittent compliance referred to the compliance

status during the year, and not the nature of the data obtained by the monitoring
35To be enforceable as a practical matter, a permit condition should provide a clear explanation of how the

limit or requirement applies to a facility and make it possible to determine whether the facility is complying with the

condition. 

32

method. However, a mistake was apparently made in this rule by excluding a

key clause on credible evidence. The following sentence related to credible

evidence in ACCs was left out of the current regulations in 40 CFR

70.6(c)(5)(iii)(B),

“If necessary, the owner or operator also shall identify any other material

information that must be included in the certification to comply with section

113 (c) (2) of the Act, which prohibits knowingly making a false certification

or omitting material information.” 

According to a key OAQPS official, the omission was inadvertent and occurred

due to an administrative error. The OAQPS official stated that this provision is

strongly disliked by industry. OAQPS has attempted to place this language back

into Part 70. This revision had not been completed at the time we finished our

field work.

Practical Enforceability Concerns With Some Permits

The enforcement of Title V permit provisions is affected by the manner in

which the requirements are written into the permit. Monitoring, record keeping,

and reporting provisions in permits should be written in sufficient detail to limit

interpretation or ambiguity in meaning. Provisions that are imprecise or unclear

can cause problems with enforcing permits. OECA and EPA regional officials

identified potential practical enforceability problems in permits. Environmental

groups provided similar comments in a number of public petitions. 

A key OECA official noted that practical enforceability is a significant part of

Title V permit enforcement.35 According to the official, a permit is not

practically enforceable if it does not contain adequate provisions for monitoring,

record keeping, and reporting. An absence of these elements or the presence of

vague permit language (for example, requirements to test emissions “as

required” or “per manufacturer’s specifications”) makes a permit virtually

unenforceable, or not practically enforceable. The official also noted that vague

permit language or vague phrases are problematic because they force the reader

to have to go to another source to identify applicable requirements. In addition

to problems with vague language, the official noted that periodic monitoring

requirements that may be technically legal under the Appalachian Power

decision (see page 23), may present enforcement problems as a practical matter. 

For example, monitoring twice during the 5-year term of the permit meets the

current interpretation of periodic monitoring; however, it may not be frequent

enough to verify compliance.
36Title V permit conditions cannot limit the types of data or information (e.g., credible evidence) that may

be used to prove a violation of any applicable requirement.

33

The officials we interviewed from EPA regional air offices stated that most

permitting authorities issued permits that were generally adequate in terms of

practical enforceability. However, officials in 8 out of the 10 regions told us

that problems in some permits potentially affect practical enforceability. They

identified specific enforceability problems in a number of permitting authorities

(see Table 2.8 below). Examples of practical enforceability problems cited by

EPA regional officials included incorrect labeling of requirements as State-only

enforceable, vague or unenforceable permit language, improper use of permit

shields, and permit language preventing the use of credible evidence.36 Officials

in one region noted that certain provisions in underlying regulations may have

practical enforceability problems that the region cannot address because the

current Title V program limits their ability to add additional requirements to

permits. (See discussion of the Appalachian Power decision and EPA’s

umbrella monitoring rule on page 23)
34

Table 2.8: Examples of Practical Enforceability Problems Identified by EPA Regionsa

EPA

Region

Permitting

authority

EPA regional officials’ comments to OIG

1 Maine - Inappropriately labeled monitoring requirements as State-only 

 enforceable.

2 General - Significant number of conditions in each Title V permit, not all of which 

 are adequate with respect to practical enforceability. 

3 NA - Generally adequate in all permitting authorities.

4 LouisvilleJefferson 

Co.,

Kentucky & 

Shelby 

Co., Tenn.

- Practical enforceability in permits needs improvement.

5 Indiana - Needed anti-credible evidence “buster” language in permits.b

Minnesota - Need to use placeholders when a compliance schedule may be 

 pending due to enforcement actions.

Illinois - Included inappropriate permit shields for Federal regulations.

Ohio - Vague permit language (“testing if required”).

6 Louisiana - Some problems with practical enforceability.

Texas - Some enforceability problems identified with monitoring, record

 keeping and reporting in applicable requirements.

7 NA - Adequate in all permitting authorities.

8 Montana - Allowed State air Director’s discretion on testing.

Utah - Vague or unenforceable permit language.

9 Arizona - Blanket permit shield language problematic; allowed State air 

 Director’s discretion on some issues. 

San Joaquin 

Valley

- Not enough detail provided for enforceability of permit limits.

South Coast - IBR led to some problems with enforceability.

10 Washington: 

Industrial 

Section

- Permit format causes clarity and enforceability problems.

Source: Comments were provided by EPA Region officials in their written and oral responses to OIG

structured interview questions.

a

 Region officials noted that some problems were identified earlier in the program and either have been

resolved or are in the process of being resolved.

b Anti-credible evidence buster language states that nothing in the permit shall be construed to limit the use

of credible evidence. In its response to our draft report, EPA noted that this issue has been resolved and

Indiana now includes an anti-credible evidence buster language condition in each permit.

Environmental groups cited potential problems with practical enforceability in

permits in a number of public petitions. The issues they expressed concern

about included:

C having permits that contain provisions not enforceable as a practical manner;

C improperly limiting using credible evidence, 

C improperly using permit shields, and

C having permit conditions that are too vague to be enforceable.
37See Chapter 3 for additional information regarding NODs and commitment letters.

38As noted in footnote 21, OAQPS and EPA regional officials told us that the majority of issues raised in

public petitions are denied.

35

EPA responded to several of these comments by soliciting commitment letters

from the States, and in four cases, by addressing the issues in NODs.37 For

example, EPA agreed with public petition concerns that permits in Ohio

contained conditions that were too vague to be enforceable as a practical matter

and stated they would work with Ohio to improve enforceability of the permit

language. In most other cases, EPA did not agree with the assertions in the

petitions and denied those claims.38 For example, EPA did not find a basis for

practical enforceability concerns raised in a New York public petition and

denied those issues in the petition. 

Results of State Permit Review

As shown in Table 2.9 below, we identified potential practical enforceability

problems in 22 of the 40 permits we reviewed in New York, North Carolina,

Ohio, and Texas. 

Table 2.9: Practical Enforceability Concerns In Permits Reviewed

 State Number

of

permits

reviewed

Number of

permits with

practical

enforceability

concerns

Description of Concern(s)

New

York

10 6 1. Some permits contained references to 

 “manufacturer’s specifications” without listing 

 what, at a minimum, this should entail.

2. Monitoring and/or reporting “upon request” by 

 the Agency. 

North 

Carolina

10 2 3. IBR to 40 CFR in general not specific enough to 

 reasonably determine applicable section. 

Ohio 10 7 4. Testing frequency not specified.

5. Some permits contained references to 

 “manufacturer’s specifications” without listing 

 what, at a minimum, this should entail.

6. One case where citation not specific enough to 

 determine applicable section of regulations. 

Texas 10 7 7. General operating permit did not list the actual 

 emissions units at the specific source on the face

 of the permit. 

8. General IBR to lengthy regulations made it 

 difficult to identify the section applicable to the 

 source. 

9. Monitoring frequency not specified.

Total 40 22 (55%)

Source: OIG analysis of State Title V permit information. Note: See Appendix B for details concerning our

permit review results in the above 4 States.

We considered provisions with vague language, such as reporting “promptly”

and inspecting and maintaining equipment “as suggested by manufacturer’s
36

specifications” – where not followed up with more specific detail – to

potentially limit the ability of enforcement staff to clearly hold sources

accountable for compliance with permit conditions. We also noted possible

problems with practical enforceability where requirements were incorporated by

reference in an overly general manner, making it difficult to determine what

requirements the source was actually subject to. For example, under reporting

requirements, a permit may reference an entire 40 CFR subpart. Without a

specific citation to the relevant paragraphs, the reviewer must examine the entire

subpart to locate the requirement; in some cases this means examining more

than 80 pages of requirements. In some cases, the lack of a specified

monitoring frequency could make it difficult for officials to enforce such

monitoring provisions and hold a source to specific emissions limitations. 

Conclusions

Our analysis of Title V permits indicated that the clarity of permits, the

adequacy of monitoring provisions incorporated into permits, and the adequacy

of the content of SBs and ACCs varied significantly among State permitting

authorities. 

• Permit clarity was negatively affected by a number of different factors,

including extensive use of IBR; failure to fully cite underlying regulations;

lack of specificity of source requirements for testing, monitoring, and

reporting, and complex permit format. 

• Evidence suggested that insufficient monitoring provisions in Title V

permits is a problem in a number of different State and local permitting

authorities. Monitoring is a critical aspect of Title V; however, State and

Federal regulations often do not provide for sufficient monitoring, and EPA

lacks guidance on periodic monitoring. 

• The adequacy of SBs and ACCs content varied significantly in the State

permits we reviewed; EPA regional officials indicated that SB and ACC

content adequacy varied nationwide as well.

EPA has not clearly established what the minimum level of acceptable SB or

ACC content should be. Without such nationwide guidance, significant

inconsistencies have resulted. Evidence indicates that problems with vague

permit language and insufficient monitoring provisions have posed potential

practical enforceability problems for Federal and State enforcement officials.

Our review of 40 State-issued Title V permits found that 90 percent of these

permits included some type of gap-filling where the underlying regulations

contained either no monitoring, or insufficient monitoring provisions. These

results suggest that a substantial lack of sufficient monitoring requirements may

exist in State and Federal regulations. EPA’s decision to re-write its draft

sufficiency monitoring rule, and issue instead the more narrow January 2004
37

final umbrella monitoring rule, could limit the ability of State and local

permitting authorities and EPA regions to use Title V permits to correct

monitoring deficiencies. EPA did, however, recognize the need to address

monitoring in underlying regulations in the umbrella rule. In this rule, EPA

committed to taking several actions to improving monitoring, including issuing

periodic monitoring guidance and issuing an advanced notice of public

rulemaking, calling for public comment on monitoring inadequacies in SIPs and

Federal regulations. 

Collectively, the problems with permit clarity and the adequacy of permit

content undermine a basic tenet of the 1990 CAA Amendments – that of

transparency, openness, and full and effective public involvement. Problems

with permit clarity make it more difficult for Title V stakeholders to identify

what requirements sources are subject to. Without sufficient monitoring

provisions, it is difficult to measure whether or not a source is complying with

applicable requirements on a regular basis. When permitting authorities include

only minimal information in SBs, they miss an opportunity to make permits that

are essentially complicated engineering documents more understandable to

stakeholders by including explanations for permit decisions. ACCs that contain

insufficient information reduce the source’s level of accountability to EPA,

State and Federal regulators, and to the public. 

Recommendations

We recommend that the Assistant Administrator for Air and Radiation:

2-1. Develop and issue guidance or rulemaking on annual compliance

certification content which requires responsible officials to certify compliance

with all applicable terms and conditions of the permit, as appropriate.

2-2. Issue the draft rule regarding intermittent versus continuous monitoring as

it relates to annual compliance certifications and including credible evidence.

2-3. Develop nationwide guidance or rulemaking, as appropriate, on the

contents of statements of basis (SB) which includes discussions of monitoring,

operational requirements, regulatory applicability determinations, explanations

of any conditions from previously issued permits that are not being transferred

to the Title V permit, discussions of streamlining requirements, and other

factual information, where advisable, including a listing of prior Title V permits

issued to the same applicant at the plant, attainment status, and construction, 

permitting, and compliance history of the plant.

2-4. Through its periodic discussions with EPA regions and State and local

permitting authorities, emphasize improvements in Title V permit clarity by

minimizing using incorporation by reference (IBR), clearly citing applicable

underlying regulations, emphasizing conciseness in permit format, and using

statements of basis to identify and explain permit decisions related to

streamlining.
38

 

2-5. Expeditiously follow through on its commitment in the January 2004

umbrella monitoring rule to develop periodic monitoring guidance. 

We recommend that the Assistant Administrator for Air and Radiation and the

Assistant Administrator for Enforcement and Compliance Assurance jointly:

2-6. Develop and implement a training program and use their oversight

authority to help EPA regional offices and State and local permitting authorities

in preventing practical enforceability problems in Title V permits.

We recommend that the Assistant Administrator for Air and Radiation and the

EPA Regional Administrators jointly:

2-7. Establish and implement a plan to review the adequacy of monitoring

provisions in SIPs. 

We recommend that the EPA Regional Administrators:

2-8. Ensure that State and local permitting authorities consistently apply

periodic monitoring provisions to all applicable permit requirements, and ensure

that permitting authorities use AP-42 emissions factors in permits only after

other more reliable methods for determining compliance have been considered.

Agency Comments and OIG Evaluation

EPA made several comments on the material presented in Chapter 2, and we

made revisions to the Chapter where appropriate. The Agency did not fully

agree with our findings that national guidance could provide further consistency

and completeness in ACCs and SBs. Specifically, the Agency disagreed with

recommendations 2-1 and 2-3 regarding these issues. However, we continue to

believe that national guidance on ACCs and SBs would better ensure

consistency among the States and regions. We found that States may be

unwilling to follow (or be unaware of) guidance that is not national in scope,

therefore diminishing EPA’s claim of the adequacy of “guidance” issued in the

form of public petition responses. Further, in response to EPA’s disagreement

with our draft recommendation to issue nationwide guidance to address

problems with practical enforceability in Title V permits, we changed our

recommendation to address potential practical enforceability weaknesses in

permits through training and more effective oversight. The Agency’s

consolidated response and our evaluation of that response are in Appendix F.
39

Chapter 3

EPA’s Oversight and Guidance Have Improved

 State Title V Programs, But Gaps Remain

Our review of OAR and EPA regional office efforts to provide Title V program

oversight and guidance to State and local permitting authorities found the

following:

• While most EPA regional offices met OAR program goals for permit reviews,

they have generally not issued timely reports in evaluating permitting

authorities’ Title V programs.

• EPA generally does not respond to Title V public petitions in a timely manner. 

• While the majority of issues identified in EPA’s NODs and State and local

commitment letters have been resolved, important issues remain unresolved in

Texas, Hawaii, and Ohio. 

• Many EPA regional offices and other key stakeholders wanted additional

guidance from OAR regarding a number of key Title V elements. However,

OAQPS has had limited success in recent attempts to issue Title V guidance.

Regional Reviews of Title V Permits Generally Met OAR Goals

Expectations for regional oversight of Title V permits are documented in the

annual memorandums of agreement (MOAs) between OAR and the EPA regional

offices. In FYs 2001 and 2002, MOAs between OAR and the EPA regional offices

indicated that

• five EPA regions committed to reviewing 10 percent or more of Title V permits

drafted by permitting authorities in their respective regions,

• two EPA regions agreed to annually review at least 5 percent of permits, 

• two EPA regions agreed to annually review a set number of permits (25 and 50,

respectively), and

• one EPA region noted that because permit review was not identified as a high

priority in OAR guidance, the region would conduct “a few spot checks” of

permits and generally limit review activities to responding to citizen petitions.

Most EPA regional offices met OAR program goals for conducting permit reviews

as outlined in the MOA’s for FYs 2001 and 2002.

According to OAQPS officials, beginning in FY 2003, the Agency modified the

MOA process such that the agreements primarily addressed the Assistant

Administrator (AA) for Air and Radiation’s priorities. The EPA regional offices

needed to certify only that they would work to meet general annual performance

measures, rather than providing a specific, point-by-point analysis of each

provision. As a result, specific commitments to review individual permits were

largely removed from the MOAs as OAR emphasis shifted to overall evaluations
39The FY2003 MOA for one region (Region 6) retained a permit review statement - the region committed to

reviewing five percent of permits.

40EPA and State Progress in Issuing Title V Permits, Report No. 2002-P-00008, March 29, 2002. 

4140 CFR 70.8(c) states that the Administrator will object to the issuance of any proposed permit that EPA

determines is not in compliance with Title V.

40

of permitting authority Title V programs.

39 The program evaluations were

developed, in part, in response to recommendations in a March 2002 EPA OIG

report.40

Based on data provided by EPA regional officials, regional permit review rates in

FY 2002, and continuing into FY 2003, generally met, and in most cases exceeded,

10 percent. As shown in Table 3.1, regional permit review rates for 9 regions

ranged from 9 percent to 90 percent. One EPA region reviewed only one permit

during this time. 

Table 3.1: Number and Percent of Title V Permits Reviewed by EPA Regions - FY02-03a

Region FY02 MOA

permit review

commitment

FY02-03 total

proposed

permits

Number reviewed

by region FY02-03

Percent

reviewed by

region FY02-03

1 At least 10% 157 110 70%

2 At least 10% 275 110 40%

3 50 253 130 51%

4 5 - 10% 486 80 17%

5 At least 10% 1035 148 14%

6 At least 10% 858 78 9%

7 25 244 35 14%

8 10% 298 268 90%

9 Less than 5% 458 97 21%

10 Citizen petitions

only

181 1 0.5%

Source: MOAs between OAR and EPA regions. Permit review data provided by EPA region officials in their

written and oral responses to OIG’s structured interview questions

a

 EPA regional permit review data was collected for the combined FY02-03 period; most EPA regional offices did

not break review data down by individual year. 

Regions generally provided informal comments to permitting authorities on the

permits they reviewed; most reviews did not result in EPA issuing formal

objections to permits.41 As shown in Chart 3.1, since the Title V program began,

two EPA regions have each issued objections to at least 50 permits based on their

reviews or on public comments filed against a permit. Four EPA regions issued

objections to 3 or fewer permits; and four EPA regions have never formally

objected to a Title V permit.
42As of December 2004. This number includes a program evaluation completed in Louisiana prior to the

development of the OAQPS program evaluation questionnaire. 

41

Chart 3.1: Formal Objections to Title V Permits by EPA Regions 

Officials from all 10 EPA regions, including those that objected to permits, stated

that they typically prefer to avoid issuing formal objections to permits. Officials

from most regions told us that they work to resolve issues early in the permitting

process. Officials from two EPA regions stated that they have threatened to issue

permit objections to State and local permitting authorities on several occasions, but

instead were able to resolve the issues to the regions’ satisfaction.

In FY2003, OAR shifted its focus from encouraging EPA regional offices to

review individual permits to performing Title V program evaluations. According

to OAQPS officials, EPA regional offices conducted Title V program evaluations,

including on-site reviews, of 31 permitting authorities between October 2002 and

December 2004. Most EPA regional offices indicated that they plan to complete

all Title V program evaluations by the end of FY 2006. One EPA regional office,

citing limited resources, stated that they would not have all of the evaluations

completed until 2008. As shown in Appendix E, of the 31 program evaluations

conducted, only 14 have resulted in final reports issued.42 The remaining 17

reports are still in process. 

According to OAQPS guidance on conducting and completing these evaluations,

final reports on the reviews should have been issued not later than 90 days after

completing each on-site visit. A key OAQPS official told us that some of the

regions with outstanding reports have not met this 90-day completion target. The

delays in issuing the reports prevents EPA and other government officials, as well

as the general public, from becoming aware of problems with Title V programs as

they are identified. OAQPS officials explained that they have requested that the

regions complete and submit their assessments of the permitting authorities, but
42

that some regions appear to be waiting until the problems are corrected before

completing their final reports. OAQPS officials also told us that they do not have

direct authority to require regions to complete the delayed reports. In responding

to our draft report, EPA indicated that regions take a significant amount of time to

prepare program evaluation reports and that the regions also provide time for State

and local permitting authorities to comment on the draft reports. 

EPA Responsiveness to Public Petitions Needs to Improve

EPA review of Title V permits can also occur as a result of public petitions. 

According to section 505(b)(2) of the CAA, if EPA does not object to a permit, any

person who submitted comments during the relevant public comment period may

petition EPA to reconsider its decision. Public petitions must be filed within 60

days after the end of EPA’s 45-day review period. If the petition is filed within

these guidelines, EPA must grant or deny the petition within 60 days. 

Our review found that EPA does respond to public petitions concerning Title V

permits, but generally does not do so in a timely fashion. According to an online

EPA database (updated in October 2004), EPA received 162 public petitions

regarding Title V programs or permits between July 1996 and July 2004. Of those

petitions received, EPA has responded to over two thirds (70 percent), averaging

approximately 12 months to respond to each petition. As shown in Table 3.2, the

range of response times to these petitions varies from 2 months up to nearly 4

years. EPA still has not responded to some petitions, dating back as far as May

1998. In recent years, EPA’s petition response rate has been relatively low. Since

January 2002, EPA has only responded to 35 percent of the petitions filed.
43Sierra Club v. Whitman, 1:01-cv-01991 (D.C.Cir. Filed Sept. 19, 2001); and Suit Filed Against EPA Over

Permits for Illinois Coal-Fired Power Plants, Daily Environment Rep. (BNA) No 179, at A-7 (Sept. 16, 2004),

discussing, American Lung Ass’n of Metropolitan Chicago v. Leavitt, No.04 C 5966 (N.D. Ill. filed Sept. 13, 2004)

43

Table 3.2. Summary of EPA Responses to Title V Petitions - 1996 to 2004

Year filed Number

of

petitions

Number of petitions filed

that EPA eventually

responded to

Average time

from filing date

to EPA

response

(months)

Range of

EPA

response

times

(months)

2004 7 2 4 2 - 6

2003 13 1 9 9

2002 28 14 11 7 - 25

2001 27 23 14 5 - 31

2000 54 48 13 3 - 37

1999 7 6 19 4 - 47

1998 7 4 16 5 - 29

1997 1 1 4 4

1996 5 5 7 2 - 10

Total 149a 104 

(70 % of total petitions filed)

12 2 - 47

Source of data: EPA Region 7 Air Program, Title V Petition Database;

http://www.epa.gov/region07/programs/artd/air/title5/petitiondb/petitiondb2004.htm

a

 In 2003 EPA dismissed 13 public petitions. Those petitions are not included in Table 3.2, as they do not

reflect typical EPA responses to public petitions. In each of the petitions dismissed by EPA, the Agency had

already initiated the process to reopen the permits for the facilities that the petitions were based on. 

Because of this, EPA dismissed these petitions as “unripe.”

Although the Act required EPA to respond to at least 53 public petitions listed in

the EPA database we reviewed within 60 days of the filed date, EPA did not

respond to any within the required 60 days. EPA did respond to 45 of the 53

petitions; however, the average response time was almost 17 months. EPA had not

responded to the other eight petitions at the time our fieldwork ended in October

2004. These eight petitions have been awaiting EPA response for an average of

over 26 months. For 92 petitions in the database we could not find sufficient

information to determine whether EPA was required to respond within the 60 day

time frame. We found only four instances where EPA deemed petitions filed as

untimely, therefore releasing EPA from a duty to respond within 60 days. EPA

region and OAQPS officials attributed the delays to a shortage in resources, and to

the time required to coordinate efforts between multiple offices within EPA that is

necessary to formulate responses to the petitions. A key official at OECA

indicated that responding to public petitions is not a high priority within EPA. 

EPA’s delay in responding to public petitions has prompted some environmental

and citizen groups to file lawsuits against the Agency, occasionally forcing the

Agency to act through a court ruling. The Georgia Chapter of the Sierra Club filed

one such suit in September 2001 and as recently reported, a “coalition of

environmental groups” sued EPA for their failure to respond to petitions against

Title V permits for several Illinois based coal-fired power plants.43
44See discussion of the Agency’s Title V guidance later in this chapter.

45See, Sierra Club,, 322 F.3d at 718(D.C.Cir. 2003); Public Citizen, 343 F.3d at 449, 454.

44

EPA’s timely response to applicable public petitions is also important due to the

Agency’s lack of adequate Title V guidance over the past several years.44 Agency

officials told us that informal guidance provided through public petition responses

has served as a means of providing EPA Title V guidance. EPA’s responses to

public petitions should not be a substitute for formally issued EPA guidance on

Title V. Nonetheless, since these responses have served as informal Title V

guidance, EPA’s untimely responses may have exacerbated the problems that have

arisen from the lack of formally issued guidance.

Most NOD and Commitment Letter Issues Have Been Resolved

The OAR and EPA regional offices exercise oversight by issuing NODs for

program deficiencies. State and local permitting authorities had resolved the

majority of the issues identified in NODs issued by EPA. Most of the

commitments made by the four State agencies we visited were adequately

addressed by the States. In general, in these four States, we noted improvements in

their Title V programs as a result of NOD and commitment letter resolutions. 

However, NOD deficiencies remain in Texas, Hawaii, and Wisconsin and

commitment letter issues remain in Ohio and Texas. The deadline for resolving

the NOD issue in Texas has passed. According to the NOD provisions, sanctions

against the State were a possibility if the issues in the NOD were not resolved

within 18 months. However, EPA had not yet published a rule on the Title V

applicability of sanctions for unresolved program deficiencies. This “order of

sanctions” rulemaking is a first step before EPA can take sanctions against a State. 

EPA drafted a proposed rule on the applicability of sanctions related to these

unresolved NODs, but the proposed rule has not been issued for comment in the

FR.

After EPA wrote the Part 70 rules governing implementing Title V, most States

received interim program approval of their Title V programs from EPA for two

years. This EPA interim approval allowed them to begin issuing permits. On May

22, 2000, EPA extended the interim approvals for 86 State and local operating

permits programs a second time. Because the CAA states that interim approvals

can only be for two years and cannot be extended, the Sierra Club and New York

Public Interest Research Group Inc. (NYPIRG) sued EPA over the extended

interim approvals in the Court of Appeals for the District of Columbia. The

lawsuit resulted in a settlement in which EPA agreed to address issues in State

rules raised by the Sierra Club and NYPIRG in considering whether to approve or

disapprove their Title V programs. EPA agreed to issue a FR notice requesting

citizens’ comments concerning deficiencies in the States’ Title V programs. 45

According to key officials in OAQPS, after the above-mentioned FR notice

requesting public comment was issued in December 2000, EPA received 34 letters
45

from citizens that contained 350 issues affecting 20 State Title V programs. In

response, EPA divided these issues into regulatory and implementation categories

and issued NODs to permitting authorities that it deemed as having regulatory

issues, and obtained commitment letters from States and local permitting

authorities addressing the implementation issues. The regulatory issues required

changes in the permitting authorities’ regulations, while the implementation issues

required changes in implementing the permit authorities’ programs to resolve these

issues. Ultimately, EPA issued NODs to 8 States, 34 districts in California, and

the District of Columbia, directing them to correct these regulatory issues. At least

23 permitting authorities addressed multiple implementation issues in their

commitment letters to EPA. As of October 2004, all State and local permitting

programs have received final approval from EPA, although some NOD and

commitment letter issues were still outstanding.

Notices of Deficiency

According to provisions in the CAA, State and local permitting authorities that

receive EPA NODs have 18 months to address their Title V program deficiencies. 

EPA must publish resolutions of these deficiencies in the FR. EPA issued NODs

to 8 States, 34 local permitting authorities in California, and the District of

Columbia, directing them to correct program deficiencies. NOD issues have been

resolved with all States except for Texas, Hawaii, and Wisconsin. Appendix E

provides details on the status of all NODs issued by EPA as of October 2004.

According to EPA, Texas has resolved all issues in its NOD except for final EPA

approval of a SIP revision related to excess emissions resulting from facility

malfunctions. This SIP revision was included in a Texas regulation amendment on

January 2, 2004. EPA proposed approval of Texas’ SIP revision on March 2,

2004, but has not yet granted final approval of the SIP revision. Consequently,

because EPA has not officially approved the SIP revision, EPA has not issued a FR

notice granting its final approval of Texas’ action to correct its NOD. In the

opinion of a key EPA Region 6 official, the SIP revision has not received final

approval because EPA officials in OECA and OGC believe the Texas regulation

allows too many excess emissions. Consequently, the statutory deadline for

resolving NOD issues within 18 months had not been met since the NOD was

issued in January 2002. A permitting authority may face sanctions if the deficiency

is not resolved within 18 months. According to OAQPS officials, sanctions have

not been proposed for Texas because EPA guidance on implementing sanctions

has not been proposed. OAQPS officials stated that the unresolved NOD issue is

SIP related and that Texas was required only to propose a SIP revision within the

deadline in the NOD. OAQPS officials believe the deficiency was resolved since

Texas has amended their regulations. However, the Texas regulation amendment

will expire on June 30, 2005. 

EPA issued an NOD to Hawaii in April 2002 because its SIP rules did not

adequately address IEUs. According to an OAQPS official, Hawaii had revised its

SIP rule related to this issue effective November 14, 2003. However, EPA has not

issued a FR notice to propose approval of Hawaii’s actions to resolve the NOD
46See page 17 of our report for a discussion of the Region 5 2001 memorandum to Ohio.

46

issue. Officials in OAQPS and EPA Region 9 told us that the issue was resolved

and that the FR notice would be issued shortly. According to a Region 9 official,

the draft FR notice had not been issued because he had not been in the office

during the period in question. The Region 9 official indicated that the Agency

planned to issue the draft FR notice in December 2004.

EPA issued an NOD to Wisconsin on March 4, 2004. The issues cited against

Wisconsin’s Title V program in this NOD included (1) not collecting sufficient

Title V fees, (2) improperly using Title V funds, (3) untimely issuing Title V

permits, and (4) other issues, related to the supersession of terms and conditions

from prior permits to Title V permits, issuing permits that did not contain all

applicable requirements (such as IEUs), and including terms in their permits that

were not federally enforceable and lacked origin of authority. Wisconsin’s NOD

deadline for correcting their program deficiencies is September 2005.

Commitment Letters

As discussed above, State and local permitting authorities sent letters to EPA

committing to certain actions that they would take to resolve Title V program

implementation issues identified by EPA. If the issues addressed in the

commitment letters were not addressed in a timely manner, EPA could then issue

NODs against permitting authorities. We reviewed actions taken by New York,

Ohio, and Texas to determine the extent to which their commitments to EPA to

resolve Title V implementation deficiencies were met. Except for the issues

related to ACCs in Texas and the SB issues addressed in Chapter 2 of this report,

the commitments appeared to be adequately resolved or the States were generally

taking appropriate actions to implement the changes. In its commitment letter,

Ohio committed to issuing SB guidance and we noted that limited guidance had

been placed on the their SB form. However, Ohio SBs still do not contain key

elements such as facility descriptions that include summaries of the operating

processes; therefore, we believe Ohio SBs need further improvement. Ohio also

committed to continue to work with EPA to improve the SBs. However, Ohio has

not incorporated several key elements in its SBs recommended by Region 5 in its

2001 Memorandum46 reasoning that “There is no national guidance, policy, or

preamble documentation in either the Clean Air Act or proposed and final versions

of Part 70 supporting the SB elements listed in the EPA [Region 5] memorandum.” 

Texas reported in its commitment letter that the State had modified its ACCs to

meet EPA Region 6's concerns. As explained in Chapter 2, we identified

deficiencies in Ohio’s SBs and Texas’ ACCs which we believe still have not been

adequately resolved. 

For State and local permitting authorities with commitment letters which we did

not visit, we did not verify whether the applicable commitments were completed. 

For example, one commitment by the State of Washington required the State to

improve monitoring requirements in its permits. Although EPA Region 10
47See footnote 40.

47

officials indicated that they believed improvements in the State’s permit

monitoring provisions were made, a key EPA Region 10 official could not verify

the extent of these improvements with certainty because the Region had not yet

evaluated Washington’s Title V program. OAQPS could not verify whether the

commitments were adequately addressed by the permitting authorities because

OAQPS relied on the EPA regional offices to ensure that all the commitments

were met and did not track resolution of the commitments. We were told by a key

OAQPS official that OAQPS’ early efforts to track resolution of commitment letter

issues received little cooperation from EPA regional offices.

EPA has not issued a rule to address instances when permitting authorities have

continuing unresolved deficiencies in their Title V programs. As part of the

Agency’s corrective action plan in response to our March 2002 OIG report,47 EPA

drafted a proposed rule to establish the order in which sanctions should apply for

untimely resolution of NOD issues that are required under the mandatory sanctions

provisions of Title V. Concerned that the Agency was not following through on its

action plan to address this recommendation from the 2002 report, the OIG issued a

memorandum to OAQPS in November 2003 and subsequently met with the

Agency to discuss their progress. However, at the time we completed our field

work in October 2004, this order of sanctions draft rule had not been proposed. 

State Title V Programs Improved as a Result of NODs 

and Commitment Letters

Resolving the issues raised in EPA NODs and commitment letters from State and

local authorities have resulted in improving Title V permitting authority programs. 

As stated in Chapter 2, the States we visited have taken steps to significantly

improve permit-related documents, due in part, to this resolution process. Though

additional steps need to be taken, Texas has substantially improved its SBs. Texas

also adopted a new section in its regulations requiring that the legal and factual

basis of its permits be set forth in its SBs. New York began preparing Permit

Review Reports for its permits. In addition, the States we visited have also

improved their permits through this resolution process. For example, several

States, including New York and Ohio, changed their regulations to improve their

definition of prompt reporting of deviations due to excess emissions; also, both

States subsequently included corresponding provisions in their permit terms and

conditions. Ohio has been improving its permits by including provisions stating

the origin of authority for each permit term and condition. 
48The director of OAQPS typically signs official EPA Title V guidance. Guidance reflects EPA’s policy

position on a given issue; however, it is not legally binding. Guidance differs from rules, which must go through the

formal rulemaking process in the Federal Register, since rules are subject to public notice and comment and must be

adhered to once promulgated. 

49EPA regional officials provided us with responses from their perspectives, as well as related impressions

received from their respective State and local permitting authorities.

48

Stakeholders Identified Needs for Title V Guidance48

Officials from most EPA regional offices, and other Title V stakeholders, wanted

additional EPA guidance regarding key Title V permit elements including:

monitoring, SB content and ACC content. Chart 3.2 below summarizes the views

of EPA regional stakeholders we contacted on the adequacy of EPA’s Title V

guidance.

 Chart 3.2: Regional View on Adequacy of Title V guidance

 Source: EPA regional responses to OIG structured interviews

EPA regional officials discussed the adequacy of EPA guidance in terms of the

range of Title V program issues addressed and the actual content.49 Officials from

five EPA regions indicated that the Title V guidance that EPA has issued is

beneficial, however they also noted problems with timeliness and/or the lack of

guidance in certain key areas. EPA regional officials listed areas where they

believe Title V guidance is still needed. Officials from six EPA regions stated that

guidance was needed on periodic monitoring, and would have been especially

useful earlier in the Title V implementation process. However, officials from two

EPA regions also pointed out that the Appalachian Power case decided in 2000

had a substantial negative impact on the ability of EPA to address monitoring

issues.
50An additional rule related to ACCs was approved, however OAR is working to correct a substantiative

error in wording before promulgating. For more discussion of monitoring guidance/rules see page 21 of this report.

49

Officials from six EPA regions stated that EPA guidance on the content of SBs

would be beneficial; officials from four EPA regions expressed interest in guidance

on the content requirements of ACCs. Officials in one EPA region noted that

while they appreciated the Agency’s hesitance to “micro-manage” requirements,

the lack of content direction for ACCs and SBs meant that no minimum floor for

such content was set. Officials in another region indicated that this has resulted in

significant inconsistencies between States in what is included in ACCs and SBs. 

They expressed interest in EPA guidance on content requirements for ACCs and

SBs. According to OAQPS officials, while OAR declined to act on issuing ACC

guidance, enforcement officials in OECA were interested in issuing guidance. 

However, to their knowledge, and that of a key OECA official we interviewed,

efforts to draft ACC content guidance in OECA did not progress. Another OECA

official told us that inadequate EPA guidance has hampered the effectiveness of

the Title V program.

Industry representatives we interviewed indicated that they would like to see more

consistency in Title V permits and more focus on national cohesion from EPA. 

These representatives commented on the difficulties that policy variations between

States and EPA regional offices pose for businesses. They also noted what they

perceive as a lack of effort on the part of EPA to push for national consistency.

EPA Guidance Efforts Limited In Recent Years

OAR is responsible for developing national Title V regulations and guidance and

for providing technical assistance on Title V program implementation. OAR

guidance has been minimal since the DC Circuit Court of Appeals overturned

EPA’s periodic monitoring guidance in its 2000 ruling on the Appalachian Power

case. A final rule on umbrella monitoring was promulgated in January 2004;

however, three draft guidance documents and one draft rule have been awaiting

approval at the OAQPS Division and/or AA for Air and Radiation level since

2002.50 These draft documents are related to processing program revisions, permit

renewal application forms, and ACCs. The draft rule addresses the order of

sanctions that can be applied to permitting authorities if they fail to correct EPAidentified Title V program deficiencies. Table 3.3 below shows the status of

OAR’s issuance of draft rules and guidance since 2002. 
50

Table 3.3: Status of OAQPS Draft Rules and Guidance Since 2002

Draft Document Date Submitted Status

Final rule on umbrella monitoring Sept. 4, 2002 Promulgated Jan. 22, 2004

Proposed rule on order of sanctions 2002 Cleared OAQPS Division 

office; with AA for review

Final rule on 40 CFR Part 70 

amendments to ACC requirements

June, 2003 Approved by AA; however 

OAR staff is working to 

correct an error in wording

Guidance on processing program 

revisions

May 17, 2002 Awaiting OAQPS Division 

office and AA review

Guidance on permit renewal 

application forms

 March 26, 2002 Awaiting OAQPS Division 

office and AA review

Guidance on ACCs August 28, 2002 Awaiting OAQPS Division 

office and AA review

Source: OAQPS officials, information provided as of October 2004.

In the absence of formal guidance, EPA’s Title V “policy” has, in recent years,

been conveyed through letters to permitting authorities and responses to citizen

petitions. This has resulted in two “guidance” databases: one official, and one

unofficial. Official signed guidance and policy memoranda are found on EPA’s

Technology Transfer Network (TTN), while letters and other communications that

may contain case-specific decisions are available in a database maintained by EPA

Region 7. The Region 7 database includes letters from EPA regions and

incorporates most, but not all, of the documents on the TTN list. According to

OAQPS officials, the TTN database is the official source for Title V guidance;

however, stakeholders are also referred to the Region 7 database because of the

additional information it contains. 

To identify all EPA written policy positions on a given Title V issue, one needs to

review both the TTN and the EPA Region 7 databases for relevant information. 

OAQPS staff provided OIG with a copy of a document they prepared summarizing

the Agency’s position on a number of key Title V issues. This document identifies

references where EPA positions and supporting information can be found. For

example, the Agency’s position on the content of SBs is extracted from responses

to numerous citizen petitions, rather than one guidance document. As of

September 2004, this document, or similar summary index, was not available on

EPA’s public Title V website.

OAQPS officials pointed out that even when guidance has been issued, OAR does

not have the ability to enforce this guidance. Guidance may provide a structure

and framework for EPA regional offices and State and local permitting authorities;

however, it is not legally binding. OAQPS officials stressed that they to do not

have the authority to force permitting authorities to follow EPA guidance. Thus,

even if EPA issued additional guidance, OAQPS officials expressed concern that

EPA regional offices and permitting authorities would continue to carry out Title V

inconsistently.
51

Challenges to Issuing Title V Guidance 

OAR faces several obstacles to issuing Title V guidance besides that posed by the

legal impact of the 2000 Appalachian Power ruling. OAQPS, EPA regional office,

and State officials noted that reaching a level of consensus among all of the various

Title V stakeholders can be challenging. For example, (1) North Carolina and New

York officials noted examples of OAR and EPA regional offices disagreeing with

each other on the correct course of action regarding permit questions; (2) New

York officials also pointed out disagreements between the EPA regional office and

OECA regarding the State’s efforts to change certain permit provisions from a

reporting to a notice requirement; and (3) environmental and industry groups have

both sued the Agency because they disagreed with Title V guidance and rules. In

addition, we were told that issuing guidance is subject to various political pressures

surrounding the Agency. Further, OAR does not have the authority to enforce

guidance that is successfully issued. Nonetheless, our work suggests that this lack

of guidance has contributed to program deficiencies and implementation

inconsistencies. Such guidance shortcomings make it more difficult for industry to

develop Title V permit applications and for enforcement officials to determine

compliance, potentially leading to inconsistent environmental protection.

Conclusions

Various problems and potential problems with specific elements of Title V permits

were identified by officials in OAQPS, officials in all 10 EPA regional air offices,

representatives from environmental and industry groups, and in our review of a

sample of Title V permits. These problems, combined with the inclusion of CAM

in permit renewals as well as the on-going incorporation of MACT requirements

into permits, point to a pressing need for greater EPA regional office review of

individual permits and action to correct permit deficiencies, as appropriate. Some

potential areas of deficiencies, such as periodic monitoring and SB and ACC

content, also illustrate a need for more EPA guidance on Title V. While EPA

regional offices and permitting authorities are not legally required to adhere to

EPA guidance, such guidance does provide the framework for improving adequacy

and consistency, and reduces the need for individual EPA regions to develop their

own policies on key Title V issues. EPA guidance would also provide EPA

regional offices with more support for Title V permit review and enforcement

efforts. Unless resolved, Title V program inconsistencies will likely continue to

hamper industry and State and local agencies’ efforts to meet Title V program

goals as permits are renewed for another 5 years.

Recommendations

We recommend that the Assistant Administrator for Air and Radiation:

3-1. Promulgate the draft order of sanctions rule which provides notice to State

and local agencies, as well as the public, regarding the actions that will be taken
52

when Notices of Deficiency are not timely resolved by State and local Title V

permitting authorities.

3-2. Provide a document guide on the EPA public website which would assist the

public in identifying and locating published EPA statements on key Title V

program issues.

3-3. In conjunction with EPA Regional Administrators, jointly develop a strategy

to ensure that EPA regional oversight and review of Title V permit adequacy

continues beyond the scheduled program evaluations. EPA regional review of

permits should include an analysis of clarity-related issues and appropriate

inclusion of CAM and MACT provisions in any permit renewals. 

3-4. In conjunction with EPA Regional Administrators, jointly coordinate and

streamline the review and response process for Title V public petitions to meet the

response requirements specified in the CAA.

Agency Comments and OIG Evaluation

The Agency largely agreed with our findings, conclusions, and recommendations

in Chapter 3 of the report. We made revisions to Chapter 3 where appropriate. 

EPA sought to clarify some information, specifically regarding program

evaluations conducted by the regions, and public petition responses. EPA stated

that the regions work closely with permitting authorities in conducting air program

evaluations and also serve as a mediator between permitting authorities and

petitioners during the public petition process. While there may be reasonable

justifications for the more lengthy delays in EPA’s issuance of written program

evaluations and public petition responses, we remain concerned about the

timeliness of the Agency’s actions on these matters. EPA, as a whole, should

streamline their issuance and response process with regard to both program

evaluation reports and public petition responses. The Agency disagreed with parts

of our recommendation to issue Title V program guidance and also our

recommendation to provide a document guide to assist the public in identifying

EPA statements on key Title V issues. We agree that it may not be necessary to

issue all guidance now in draft, particularly guidance on permit renewal application

forms and processing program revisions. However, we believe that guidance on

ACC content is still needed to provide consistency among States and permitting

authorities. We also believe that a brief guide summarizing EPA’s position on key

Title V issues would be beneficial to both permit writers and the general public. 

Such a guide will be important to the public as Title V facilities seek permit

renewals. The Agency’s consolidated response and our evaluation of that response

are in Appendix F.
51Six State Title V program evaluation reports were provided to us by the end of our fieldwork. However,

only five of the reports addressed benefits resulting from Title V. See page 41 for additional information on program

evaluations.

52In this comparison, we assessed the extent that permits included compliance reporting requirements,

enforceable terms, public participation provisions, and monitoring, testing, and recordkeeping requirements.

53

Chapter 4

Despite Some Problems, Title V Has Generally Improved

Implementation of the Clean Air Act

Available evidence suggests that, in general, establishing Title V has improved

implementing the CAA, and that the Title V program has been successful in

partially meeting most of its congressionally-envisioned goals. Interviews with

key officials from EPA’s 10 regional offices, the four States we visited,

stakeholders from environmental groups, as well as the results of five EPA

evaluations51 of State Title V programs, suggest that – despite implementation

problems – Title V has improved the implementation of the CAA. Stakeholders

from large companies with many Title V facilities, and industry representatives

viewed Title V as a costly and burdensome program that had not achieved its

intended goals. Although actual emissions reductions have not been tracked by

EPA and insufficient evidence is available to determine whether Title V has

resulted in cleaner air nationwide, most Title V stakeholders we contacted said that

significant benefits have been achieved as a result of implementing the Title V

permitting program. For example, while not an explicit goal of Title V, a number

of stakeholders said that implementation of key Title V provisions, such as

requiring facility owners/operators to annually certify compliance with applicable

clean air requirements, has had the indirect benefit of reducing facility emissions.

Our comparison of State permits issued prior to Title V with federally-enforceable

Title V permits showed that, in most cases, not only were requirements from preTitle V permits incorporated into the Title V permits, but many new and significant

requirements were incorporated into these permits.52 However, EPA has not

conducted an in-depth study of Title V benefits, nor have data been maintained by

EPA that would allow an empirical analysis of these benefits. Also, due to the data

limitations and the inability to isolate the impact of Title V on enforcement as

opposed to other Agency enforcement initiatives, we were unable to determine

whether CAA enforcement and compliance was improved as a result of Title V’s

implementation, although anecdotal evidence suggests that many facilities had

placed a greater emphasis on compliance as a result of Title V.
53Clean Air Facts is a Congressional record document that provides background information on legislation.

54

Expected Benefits of Title V

During consideration of the 1990 CAA Amendments, U. S. Senate and House

Committee reports dated October 26, 1990, and October 27, 1990, and the May 3,

1990, Clean Air Facts53 identified benefits that Congress expected to be realized

from the Title V program. Table 4.1 shows the nine expected benefits from Title

V, as enumerated in the Congressional record.

Table 4.1: Nine Primary Benefits Expected From Implementing Title V

Expected Benefit

1

Improve States’ air pollution programs due to better emissions inventories.

2

Provide resources through Title V fees.

3

Provide a vehicle for implementing the air toxics and acid rain programs.

4

Improve enforcement.

5

Achieve faster compliance.

6

Require compliance certifications from facility operators.

7

Include all the applicable regulatory requirements in one document.

8

Provide regulatory certainty for sources.

9

Improve public participation.

To analyze the impact of Title V relative to these Congressional goals, we

categorized the nine benefits into results associated with (1) improving States’ air

pollution programs, (2) improving enforcement and achieving faster compliance,

(3) consolidating all the applicable requirements listed in one document and

providing regulatory certainty, and, (4) improving public participation. Although

not an explicit goal of Title V cited in the Congressional record, we also sought to

determine whether emissions reductions or cleaner air resulted from implementing

the Title V program. This was a subsequent goal added by the CAA Advisory

Committee, which was established to report on the state of Title V implementation.

Most Stakeholders Cited Anecdotal Benefits of Title V

In general, benefits cited by stakeholders varied according to their different

perspectives, with environmental groups, EPA headquarters and regional officials,

and State permitting authorities citing multiple benefits from Title V. Industry

representatives we contacted viewed Title V as a costly program that has not

provided many benefits in its present configuration. Due to the lack of available

evidence, we were unable to determine whether CAA enforcement and compliance
55

was improved as a result of Title V’s implementation, although anecdotal evidence

existed that many facilities had placed a greater emphasis on compliance. 

Also, the benefits of placing all applicable CAA requirements in one document and

providing regulatory certainty to facility operators were not always recognized by

stakeholders due, largely, to permit clarity issues (see Chapter 2 of this report). 

However, representatives from environmental groups indicated that Title V has

significantly improved public participation. The results of interviewing key

stakeholders and reviewing State Title V program evaluation reports are discussed

in greater detail below. 

The following charts summarize the responses received from EPA regional

officials and the benefits identified in EPA’s evaluation reports on State Title V

programs.

 Chart 4.1: Title V Benefits Cited by EPA Regional Officials 
56

Chart 4.2: Benefits Cited in EPA’s Evaluation Reports of State Title V Programs

Improved Air Pollution Control Programs

Three anticipated Title V benefits cited in the Congressional record were related to

improved air pollution programs operated by permitting authorities, as follows:

• improved emissions inventories were expected to contribute to improved air

pollution control strategies for meeting CAA standards.

• the collection of Title V fees were expected to provide a source of revenue to

permitting authorities sufficient to support their efforts to issue permits, and

• Title V could be a vehicle for States to take over administration, subject to

Federal oversight, of significant parts of the air toxics and acid rain programs. 

For example, MACT standards developed under the air toxics programs were to

be included in Title V programs. 

Improved Emissions Inventories

Permitting authorities identified improved emissions inventories as one of the most

significant benefits that they received from the Title V program. State officials

indicated that Title V permits have provided a more comprehensive inventory of

controlled pollutant emissions. Officials from two of the four States we visited and

four of the five State Title V evaluation reports identified improved emissions

inventories as a benefit of Title V. Also, officials from 5 of the 10 EPA regions

cited improved emissions inventories as a Title V benefit. Further, State officials

reported that as a result of Title V, they identified non-permitted sources and were

better able to quantify their emissions units. 
57

Mixed Views of Fees

State officials identified establishing a Title V fee program as a benefit in four of

the five State Title V program evaluation reports. For example, an EPA evaluation

report on one State Title V program reported that fees collected through the State’s

Title V program provided a stable funding source and more resources for equipment

and onsite travel. Another State also reported that Title V fees was a benefit of the

Title V program, noting that

The increase in revenue as a result of Title V permit fees has allowed DNREC

to significantly increase its permitting and enforcement staff levels, as well as,

provided funds for other related expenses. Increased staff has allowed for

more frequent inspections, greater timeliness in permitting, and greater ability

to provide more compliance assistance. 

Officials in 4 of the 10 EPA regions cited establishing a Title V fee program as a

benefit. However, none of the State officials in the four States we visited identified

the Title V fee program as a benefit to them. According to a key OAQPS official,

“loose” guidance from EPA has impacted the fee provisions of Title V. Title V fee

collections were supposed to fully cover the costs of each State’s permitting

program, including compliance assurance, monitoring, reporting, and recordkeeping. Further, since the fees were based on amount of pollution emitted in a

year, the fees provided an incentive to facilities to reduce their emissions. 

There have been instances reported where the amount of fees collected by

permitting authorities have not been adequate to sustain the corresponding Title V

programs. For example, Wisconsin’s NOD issued by EPA in March 2004 stated

that Wisconsin, “ ... failed to demonstrate that its title V program of Part 70 sources

requires owners or operators ... to pay fees that are sufficient to cover the costs of

the State’s title V program . . .” Similarly, in our prior Title V report on the EPA’s

and States’ progress on issuing Title V permits, we noted that States sometimes

chose to charge less than the recommended rate per ton of pollutant emitted. For

example, although Congress set a presumptive minimum fee of $25 per ton in 1990

when the Act was passed, in our 2002 report we noted that, for the 6 States

reviewed, the fee per ton of emissions ranged from about $18 per ton in Colorado to

$43 per ton in Pennsylvania. Additionally, EPA officials told us then that they

believed that insufficient fee revenue had a negative impact on issuing Title V

permits in a timely manner. 

Administration of Air Toxics and Acid Rain-Related Programs Not

Cited

Although we saw Title V permits that contained air toxics and acid rain-related

requirements, none of the stakeholders we talked with cited the use of Title V as

beneficial in administering significant parts of these programs.
58

Improved Enforcement and Faster Compliance

Three additional expected benefits cited in the Congressional record related to

improved enforcement and faster compliance, as follows:

• By listing all the applicable requirements in one document, Title V permits

would “... provide inspectors with specific information about regulated

equipment, performance standards, emissions limits, and other operating

parameters to facilitate their determination of the compliance status of ...” the

facility.

• With greater agreement between industry and EPA, State, and local regulators

on the equipment that should be in place, performance standards, emissions

limits, and other operating parameters, this reduced uncertainty about what

applies, where, and when would help Title V facilities achieve compliance more

quickly.

• Submitting periodic compliance reports to EPA and the States, certifying that

the facility complies with all applicable CAA requirements, or specifying those

requirements that the facility did not comply with, under severe penalties. It

was anticipated that Title V sources would be made more accountable for their

emissions if the facility owners/operators were required to identify instances of

non-compliance with any applicable requirements. 

Title V benefits associated with better enforcement and faster compliance could not

be definitively determined because of a lack of empirical data. However, some

stakeholders stated that Title V permits assisted inspectors in the performance of

their responsibilities and that the requirement to certify compliance resulted in

companies being more concerned with their facility’s compliance. A key State

official and an official with a public interest group pointed out that it may be too

early to assess Title V’s results associated with enforcement as initial Title V

permits are still being issued. Also complicating this assessment was that CAA

enforcement data can be interpreted two ways. Increased enforcement actions may

indicate that more violations are found because of Title V; conversely, reduced

enforcement actions may indicate better compliance and fewer violations due to

effective implementation of Title V. 

Improved Enforcement Cited By Some Stakeholders

Improved CAA enforcement was cited as a benefit by officials in 3 of the 10 EPA

regions and in 2 of the 5 State Title V program evaluation reports. Benefits cited

included the ability of States to better target their enforcement and to provide their

inspectors with more useful information. In one State Title V program evaluation

report, the State indicated that, “Information from Title V operating permit program

is used to target inspections and/or enforcement.” The State also reported that their

Title V permit program has improved the implementation of their program by, “ ...
59

identifying source categories or types of emission units with pervasive or persistent

compliance problems, ...”

Faster Compliance Cited By Some Stakeholders

Faster CAA compliance was cited as a Title V benefit by officials in 3 of the 10

EPA regions and in 3 of the 5 State Title V program evaluation reports. We also

saw anecdotal evidence that, in some instances, faster compliance was achieved as a

result of Title V. Table 4.2 below illustrates these benefits.

 Table 4.2: Anecdotal Illustrations of Compliance Benefits From Implementing Title V

Cited Compliance Benefits

State evaluation reports cited instances where emissions units needing control devices were identified

during the Title V permit issuance process.

State officials identified instances where facilities made operational changes to reduce emissions to

avoid being subject to the Title V program. 

One industry representative and one EPA regional official said that Title V helped pollution prevention

efforts.

Another State indicated in a Title V program evaluation report that CAA compliance was improved and

resulted in actual emissions reductions.

One State reported that a permit writer found a source without an approved Volatile Organic Compounds

(VOC) Reasonable Available Control Technology (RACT) plan, which, when corrected, led to a decrease

in the source’s emissions.

In another State, a source decreased their emissions from approximately 250 tons per year to 65 tons

per year to avoid Title V applicability.

Source: OIG Interviews of State officials and reviews of Title V program evaluation reports.

Some State officials indicated that Title V has resulted in facilities becoming more

conscious of CAA compliance issues involving their facilities. In one State Title V

program evaluation report, the State indicated that compliance behavior has

improved as a result of the Title V program. The State reported:

The following changes in compliance behavior on the part of sources have been seen

in response to the Title V operating permitting program: increased use of self-audits,

increased use of environmental management systems, increased staff devoted to

environmental management, increased resources devoted to environmental control

systems (e.g., maintenance of control equipment or installation of improved control

devices), increased resources devoted to compliance monitoring, and increased

awareness of compliance obligations. Overall, industry is paying more attention to

environmental issues. In some cases this awareness was pushed by the Title V

compliance certifications and making sure the responsible offices know what they

were signing.

Another State reported that their Title V program has assisted the State in

identifying compliance issues. The report stated that:

The Title V program has also been a means to bring compliance issues to light. 

CDPHE [Colorado Department of Public Health & Environment] believes that
60

potential compliance problems were encountered during review of approximately

40%-60% of the total permits. The compliance problems were most often identified

prior to issuance of the draft permit and after the final permit was issued. The

majority of these problems are related to NSPS, SIP, and minor NSR requirements.

Sources have responded to these compliance problems with increased self-audits,

increased use of environmental management systems, increased staff devoted to

environmental management, increased resources devoted to environmental control

systems, increased resources devoted to compliance monitoring, and better

awareness of compliance obligations.

Annual Compliance Certifications Focus Attention On Compliance

Officials from 6 of 10 EPA regional offices identified the submission of signed

ACCs as a benefit of Title V. Three of the five State evaluation reports indicated

that Title V sources providing verification of compliance with permit terms was a

Title V benefit. State officials reported that sources have spent more time and

resources on compliance matters. One industry official believed that the ACC

required too much reporting. Representatives from environmental groups believed

that the requirement for ACCs was a benefit of Title V. Our work similarly

suggests that these signed annual certifications have resulted in a greater emphasis

on compliance. 

Consolidation of Requirements and Regulatory Certainty

Facilities that are large enough to be Title V sources are often subject to many

different CAA control requirements, such as those under the hazardous air

pollutant, nonattainment, and acid rain programs. Two benefits expected to be

achieved through the inclusion of all applicable CAA requirements into each

facility’s Title V permit were:

• to allow the public and other stakeholders to identify all applicable

requirements for the facility, and

• regulatory certainty for facility operators. 

The results of our stakeholder interviews and reviews of State Title V program

evaluation reports indicate that the benefits associated with having permit

requirements in one document and providing regulatory certainty have been mixed. 

In general, industry representatives did not agree with most other stakeholders.

Benefits of Consolidating Requirements Cited By Many Stakeholders

Officials from 4 of the 10 EPA Regions indicated that placing all the requirements

in one permit have been beneficial. This benefit was also cited in two of the five

State Title V program evaluation reports. State officials also indicated that Title V

has assisted their staffs in their understanding of applicable air pollution control

requirements. In a State Title V program evaluation report, one State reported that

their:
61

... Title V staff has a better understanding of NSPS requirements, the SIP

stationary source requirements, the minor NSR program, the major NSR/PSD

program, how to design monitoring terms to assure compliance, and how to

write enforceable permit terms. 

Another State similarly noted that:

Permit writers improved their skills in devising monitoring terms that assure

compliance and writing enforceable permit terms, as well as their knowledge

of applicability criteria for NSPS, NSR, and other Clean Air Act programs.

IDEQ [ Idaho Department of Environmental Quality] believes these skills will

carry over into its other air permitting programs.

Contrary to the views of other stakeholders, industry officials indicated that

consolidating requirements in permits is an admirable goal, but that it has not been

accomplished because the requirements for many emissions units at large facilities

are subject to frequent changes, and that these changes are not easily incorporated

into Title V permits.

Regulatory Certainty Cited By Most Stakeholders

Though not identified as an expected benefit in the Congressional record, regulatory

certainty for permitting authorities was often cited as an expected benefit. 

Regulatory certainty for facility operators was cited as a benefit by officials in 4 of

10 EPA Regions and 2 of the 5 State Title V program evaluation reports we

reviewed. Officials from 6 of the 10 EPA Regions cited regulatory certainty for

permitting authorities as a benefit. This benefit was also cited in 4 of the 5 State

Title V program evaluation reports and by State officials in two of the four States

we visited. Contrary to views of other stakeholders, industry representatives did not

agree that regulatory certainty had been accomplished because regulations changed

frequently and because of issues associated with permit clarity. 

Benefits to Public Participation

Improved public participation was also a key expected benefit from Title V. By

requiring that both the permit and source compliance reports be made available to

the public, it was anticipated that interested citizens would be able to review and

help enforce a source’s CAA obligations.

The extent of Title V benefit related to public participation cited in our interviews

of key stakeholders and State evaluation reports depended on the stakeholder’s

perspective. Increased public participation was cited as a benefit by officials in all

10 of EPA’s regions and by officials from public interest groups. One EPA Region

wrote to us that:

Title V provides much-needed public access to the permitting process and

transparency in CAA requirements that apply to industry. This has given the
62

public an opportunity to be involved in the process of attaining and

maintaining clean air. This has also provided the public considerable

knowledge about a facility’s operation and its obligation to keep the

environment clean.

Officials from another region agreed by writing:

The public comment process has benefitted the public by enabling it to review

proposed permits, request public hearings, and petition the administrator if its

concerns are not addressed by the permitting authorities. These added

provisions have spurred public participation in the permitting process and

increased the public’s awareness of federal, state, and local requirements. 

Through the comment process, the public has raised relevant issues that were

overlooked by the permitting authorities and the Region.

Although EPA has generally not responded to public petitions in a timely manner,

there appeared to be a significant amount of public interest in Title V programs and

permits based on the number of petitions filed by public interest groups. Industry

officials we interviewed told us that they believed that permits are written to a level

of detail which makes it very difficult to understand them unless the reader has a

detailed knowledge of the source’s operations.

EPA and Industry Views of Title V Differed

Regional Officials Saw Substantial Improvements In Permits

All 10 EPA regional air offices noted that significant improvements have occurred

in a number of key elements in State permitting programs since the implementation

of Title V. The recording of all relevant CAA requirements in one document and

the ACC requirement were the most significant improvements identified. 

EPA regional staff were asked to rank how successful permitting authorities were

with regard to six permit elements. These elements included: recording all relevant

CAA requirements in one document; requiring regular reporting of monitoring

results; requiring emissions monitoring, testing, and record-keeping; requiring

ACCs; encouraging public participation; and making terms federally enforceable. 

Each element was ranked on a scale of 1 to 5, where 1 equaled “not at all” and 5

equaled “to a great extent,” for a possible total cumulative rank of 30. Cumulative

rankings by EPA regions for pre-Title V efforts overall ranged from a low of 9 to a

high of 17, with an average of 14.2. Rankings by EPA regions for post-Title V

efforts were significantly higher, ranging from 24.2 to 29.7, with an average of 27. 

Average ranking responses to individual program elements ranged from 1.1 to 3.4

before Title V and from 4.1 to 4.8 after Title V. 

Several regional officials noted that the permit elements they ranked as improving

the most, recording all relevant CAA requirements in one document and requiring

ACCs, were elements that were not required in the NSR or PSD programs, or any
63

other permitting program prior to Title V. They noted that some pre-Title V permits

issued by permitting authorities may have included one or more of the six permit

elements on an individual basis, but that there was no systematic requirement to

address these elements prior to Title V. EPA regional officials also noted that a

handful of permitting authorities with operating permit programs prior to Title V

did do an adequate job implementing certain elements, such as including limited

monitoring, reporting, and record keeping requirements in their permits. 

Industry Officials Viewed Title V as Costly and Burdensome

The industry representatives we interviewed represented large companies from

various industrial sectors with facilities located throughout the United States. These

individuals cited several potential benefits that could be achieved by the Title V

program including (1) placing all requirements in one document, (2) increasing

communications between source and permitting authority, and (3) streamlining of

permit requirements. However, in general, these benefits were largely described as

benefits only in theory. These representatives believed that the size and complexity

of Title V permits and the changing nature of their applicable regulations made it

impossible to achieve the goals of putting all the requirements in one document and

achieving regulatory certainty. The representatives also said that streamlining

requirements was difficult to achieve. Their statements were generally followed

with a caveat stating that, in practice, the benefits are not seen because of other

factors that make the Title V program a high cost, high burden program. They

claimed high financial costs of the Title V permits and the administrative backlogs

caused by permit modifications and renewals were detriments to the Title V

program. In addition, industry officials expressed concern over the inconsistencies

among EPA regions and State permitting authorities in their implementation of 

Title V programs and the permitting process. 

Results of OIG Review of Pre- and Post-Title V permits

Our review of a sample of Title V permits in four States included an analysis of preTitle V permits issued to sources in our sample. All of the sources we reviewed

were issued some type of permit prior to the beginning of the Title V program. PreTitle V permits issued to these sources included State permits to construct or

operate, NSR permits, and PSD permits. In the majority of cases, the pre-Title V

permit was available for our review. As shown in Table 4.3, we found that the

content of the pre-Title V permits varied; however none of the permits contained all

the elements required in Title V permits. 
64

 Table 4.3: OIG Analysis of Pre-Title V Permits for Sources In Our Sample

NC TX NY OH Total Percent

Pre-Title V permit issued 10 10 10 10 40 100%

Pre-Title V permit available for review 10 10 8

b

10 38 95%

Pre-Title V permit contained the

following elements (of those permits 

available for review):

1. All CAA requirements 1 0 0 1 2/38 5%

2. Monitoring, testing, record keeping 10 9 4 9 32/38 84%

3. Periodic monitoring 9 7 3 8 27/38 71%

4. Annual compliance certifications 0 0 1 0 1/38 3%

5. Public participation & objections 0 0 3 0 3/38 8%

6. Terms federally enforceablea4 0 3 0 7/38 18%

7. Regular reporting 6 2 2 7 17/38 45%

Source: OIG analysis of Title V permit information

a

 In some cases, the pre-Title V permits provided were NSR permits. Rules governing NSR permitting are

federally enforceable when approved into a SIP. The information in the table above reflects only whether or

not the permits stated that they were federally enforceable on the face of the permit.

b Prior permits were not provided for two New York permits. In one case, the files could not be located; in

the other case, the old permit files had been purged. 

Generally, the pre-Title V permits we reviewed did not record all CAA

requirements in one document. They also did not require ACCs or provide for

public participation and public right to object to permits. The terms of the pre-Title

V permits were not explicitly federally enforceable in most cases. Most permits

contained provisions for at least some monitoring, testing, and record keeping;

however, they did not always require periodic monitoring or regular reporting. In

addition, the application of monitoring, testing, and record-keeping provisions were

not consistent for all requirements in pre-Title V permits. In general, non-Title V

permits issued after the Title V program was in place (but before the source

received their Title V permit) were more complete than earlier permits.

We also reviewed the extent to which the limited requirements found in pre-Title V

permits were incorporated into the Title V permits. In the majority of cases, the

Title V permits contained all of the requirements found in the prior permits. In

some cases, however, it was difficult to track requirements from the prior permit to

the Title V permit. For example, in Texas a facility may have one NSR permit and

two or more Title V permits. It was not possible to determine if all the NSR

requirements were incorporated without reviewing all of the Title V permits for a

source. Our methodology, however, limited us to reviewing one permit per facility. 

In addition, in Ohio, changes between the pre-Title V permit and the Title V permit

sometimes made it challenging to compare requirements. Ohio State officials

provided explanations for these discrepancies upon request. 
65

Conclusions

Despite implementation and oversight problems with Title V permits, legal

setbacks, and some industry resistance, the Title V program has generally resulted

in significant benefits. Benefits have been recognized by State pollution agencies in

significantly improving their knowledge of air pollution sources which they believe

has improved their efforts to reduce air pollution levels in their States. Although

the adequacy of compliance certifications is inconsistent among the States, the

States have improved enforcement tools as a result of the requirement that source

compliance be certified periodically by a responsible official and submitted to the

State agency and EPA. Responsible officials generally have a better knowledge of

their plants’ operations and are placing more emphasis on compliance with the

applicable regulations, according to officials in State enforcement offices.

In addition to identifying the specific benefits of Title V, officials in all 10 EPA

regions cited significant improvements overall in State and local permitting since

the implementation of Title V. We found similar results as a result of our review of

pre-Title V permits issued to sources in our State samples. The most significant

improvements identified by EPA regional officials were recording all relevant CAA

requirements in one document and the requirement for ACCs. These requirements

are key factors in providing all stakeholders with the information needed to

understand the air pollution requirements which major emitting sources are subject

to, as well as how well they are meeting those requirements. 

Recommendations

We recommend that the AA for Air and Radiation:

4-1. Consider forming a stakeholder advisory group, possibly in conjunction with

the CAA Advisory Committee, to solicit input on needed Title V guidance and rules

from selected State and local agencies, and industries or industry associations,

environmental groups and other interested stakeholders.

Agency Comments and OIG Evaluation

EPA agreed with recommendation 4-1 but disagreed with our recommendation 4-2. 

Upon further consideration, we decided to remove recommendation 4-2 from the

final report. EPA Headquarters and regions agreement to continue long-term

oversight of Title V implementation, including permit reviews and comprehensive

Title V program reviews, should provide sufficient information to identify Title V

areas still in need of improvement. The Agency’s consolidated response and our

evaluation of that response are in Appendix F.
54A major source is defined in 40 CFR Part 70 as any stationary source belonging to a single major industrial grouping

that meets any of the following criteria: 1) emits, or has the potential to emit, 10 tons per year (tpy) or more of any hazardous air

pollutant (as defined in section 112(b) of the CAA), 25 tpy of any combination of hazardous air pollutants, or 100 tpy of any air

pollutant; 2) is located in an ozone nonattainment area with the potential to emit 100 tpy or more of volatile organic compounds

or oxides of nitrogen in areas classified as “marginal” or “moderate,” 50 tpy or more in areas classified as “serious,” 25 tpy or

more in areas classified as “severe,” or 10 tpy or more in areas classified as “extreme;” 3) is located in ozone transport regions

with the potential to emit 50 tpy or more of volatile organic compounds; 4) is located in a nonattainment area classified as

“serious” with the potential to emit 50 tpy or more of carbon monoxide; or 5) is located in a nonattainment area classified as

“serious” and has the potential to emit 70 tpy or more of PM-10. 

66

Appendix A

Definition of Major Stationary Sources

Passage of the CAA Amendments of 1990 also brought new definitions of major stationary sources

that varied depending on the type of pollutant, the attainment status of the area where the pollutant

is emitted, the synergistic effects of multiple airborne pollutants, the ability of some pollutants to

travel long distances, and other factors. As a result, simple definitions of what sources are and are

not major sources of air pollution are difficult to find. Generally, a major source is any source

with annual emissions that meet or exceed levels specified in the Act.54

Table A.1 shows the annual emission levels, in tons of pollution, that define a major source of any

of the National Ambient Air Quality Standard pollutants under the Act:

 Table A.1: Categorization of Major Sources

Attainment

Status

of Area

Where

Source Is 

Located

Potential to Emit (Tons/Year)

Carbon

Monoxide

(CO)

Lead

(Pb)a

Nitrogen

Dioxide

(NO2) a

Nitrogen

Oxides

(NOx)

Particulate

Matter

(PM-10)

Sulfur

Dioxide

(SO2) a

Volatile

Organic

Compounds

(VOCs)

Attainment

Areas

100 100 100 100 100 100 100 

Nonattainment Areas

Marginal b100 100

Moderate 100 100 100 100

Serious 50 50 70 50

Severe b25 25

Extreme 10 10

Northeast

Ozone

Transport

Region 

50 -

marginal

100-

moderate

 50 -

marginal

100-

moderate

a

 The Act did not establish additional major source classifications for these pollutants based on an area’s attainment status.

b

 Nonattainment areas for carbon monoxide (CO) and particulate matter (PM–10) are classified as either moderate or serious.

The 1990 Act also added new definitions for major sources of hazardous air pollutants, generally
67

referred to as air toxics. The act listed 188 such air toxics, including the airborne emissions of

such things as arsenic, asbestos, benzene, dioxin, formaldehyde, mercury, and perchloroethylene. 

By definition, any source is a major source if it emits 10 or more tons annually of any one of these

188 air toxics, or 25 or more tons of any combination of these 188 air toxics. Facilities emitting

these 188 air toxics are regulated under the National Emission Standards for Hazardous Air

Pollutants.

Additionally, engaging in or undertaking certain activities can cause a source to become a major

source. These generally involve sources that are subject to one or more of the following:

 • EPA’s New Source Performance Standards limitations for new sources of pollution.

 • Prevention of Significant Deterioration provisions or the nonattainment area New

Source Review provisions for expanding or changing sources.

 • Selected sources with potential to contribute to acid rain problems.

 • Solid waste incinerators.

According to EPA, over 35,000 sources in the United States have the potential to emit pollutants in

sufficient amounts to be a major source, and thus be required to obtain a Title V permit. However,

about 17,000 sources have chosen to limit their hours of operation, install pollution control

equipment, or take other actions to avoid being subject to the Title V requirements.
55Selection of State permits was random within the context of certain parameters.

68

 Appendix B

Details on Scope and Methodology

Objective 1

To assess the adequacy of Title V operating permits, we conducted interviews with officials in

OAQPS and OECA, representatives from 10 environmental groups and 5 industrial concerns, and

key officials in all 10 EPA regional offices. The EPA regional officials we interviewed included

air office directors or managers, Title V program managers, State coordinators, permit reviewers,

enforcement staff, and regional counsel. We also interviewed Title V program managers, permit

writers, permit reviewers, and enforcement staff in four selected States we visited: New York,

North Carolina, Ohio, and Texas. In addition, we reviewed 40 Title V permits; 10 in each of the 4

States we visited. We created a structured interview form and a data collection instrument to

document the data collected and facilitate in analysis. Information on these follows.

Structured Interview Form

Based on issues identified in our preliminary interviews of key stakeholders, a structured interview

form was created for use in interviews of EPA regional officials. This form was sent to region air

program officials in preparation for interviews via video or telephone conference. The structured

interview form contained questions regarding Title V implementation and oversight, regional

assessment of permit adequacy, regional assessment of permitting authority progress, the impact of

Title V, and the resources available for the Title V program. In addition to responding to the

questions orally, all 10 regions supplemented their interviews with written responses to the

questions outlined on the structured interview form. EPA regional interviews were conducted

from December 2003 to March 2004.

Data Collection Instrument

In addition to the structured interview form, a data collection instrument was created to aid in the

State permit review aspect of our field work. Questions were developed for the data collection

instrument by researching Title V guidance and policy documents, and Title V issues identified in

preliminary interviews and in publicly available literature on Title V issues. Documents used to

generate review areas and questions included EPA white papers, guides to aid the public in

reviewing Title V permits available on EPA’s website, the EPA Region 3 Title V permit writer’s

guide, and various permit training and issue-related documents.

Sample Selection

Due to the large number of permits needed to create a sample statistically representative of the

universe of Title V permits nationwide, and limitations on OIG resources, we decided to

judgmentally select four States and randomly select 10 permits to review from within each State.55

The four States selected for permit review included: New York, North Carolina, Ohio, and Texas. 

Three States (New York, Ohio, and Texas) were identified by OAQPS, EPA regions, and
56Based on 1998 State-level emissions and rank for CO, NOX, VOC, SO2 and PM10 (EPA Report

“National Air Pollutant Emission Trends, 1900 -1998" (EPA-454/R-00-002), page 36). 

69

environmental groups as States with varying degrees of problems associated with their Title V

permits. Ohio and Texas had received NODs as a result of Title V program problems; Ohio,

Texas, and New York wrote commitment letters to EPA pledging to address problems with Title V

permit implementation issues. 

Permits in these States have received a number of public complaints. North Carolina was

recommended by OAQPS and EPA regional officials as a State that had not received such NODs

and few complaints. Another selection criteria we considered was the relative significance of major

source emissions on air quality. With the exception of North Carolina and Ohio emissions of

PM10, the States rank in the top 15 of emitting States for selected criteria pollutants.56 

We stratified our sample within each of the four States selected by reviewing industries in each

State. The top five industries were ranked by Standard Industrial Classification (SIC code)

according to annual tonnage of emitted pollutants (see Table B.1). 

 Table B.1: Top Five Emitting Industries (of Criteria Pollutants) In Each State

New York North Carolina Ohio Texas

1. Electric Services

2. Photo Equip & 

 Supplies

3. Cement 

 Hydraulic

4. Elec & Other 

 Services 

 Combined

5. Blast Furnaces 

 and Steel Mills

1. Electric Services

2. Paper Mills

3. Wood Furniture

4. Industrial Organic 

 Chemicals

5. Pulp Mills

1. Electric Services

2. Elec & Other 

 Services Combined

3. Blast Furnaces & 

 Steel Mills

4. Inorganic Pigments

5. Primary Aluminum

1. Electric Services

2. Petroleum Refining

3. Industrial Organic 

 Chemicals

4. Natural Gas 

 Liquids

5. Carbon Black

Source: OIG analysis of data from EPA NET Facility SIC Report. See www.epa.gov/air/data/geosel.html

The following steps were then taken to select industries for permit review: (1) all industries that

appeared in at least two of the States’ top five lists were included; and (2) the next two largest

polluting industries for each State were included. Step 1 resulted in selecting three industries –

electric services, blast furnaces, and industrial organic chemicals. Step 2 added another eight

industry types for a total of eleven selected industries. Table B.2 lists all 11 selected industries.
57In States that did not have 10 of the 11 industries selected, we randomly sampled additional permits from

the lists provided by the States until we had selected 10 permits in each State.

58All but seven Title V permitting authorities received at least interim program operating approval by 1997

(see EPA OIG Report No. 2002-P-00008 p.51 and www.epa.gov/air/oaqps/permits/approval). We started our

sample two years (January 1999) after all programs were approved to ensure that the permitting authorities had time

to get their programs operational and work through early implementation problems.

70

 Table B.2: Industries Selected For Permit Review

Selected Industries for Review

 (SIC- Industry Type)

New York North

Carolina

Ohio Texas

1. 4911 - Electric Services X X X X

2. 3312 - Blast Furnaces and Steel Mills X X (1)a X X

3. 2869 - Industrial Organic Chemicals, 

 nec 

X X X X

4. 2621 - Paper Mills Exc Building 

 Paper

X X (3) X X (3)

5. 2511 - Wood Household Furniture X X X (1)

6. 2911 - Petroleum Refining X (1) X (2) X

7. 1321 - Natural Gas Liquids X

8. 2816 - Inorganic Pigments X (1) X (1) X (1)

9. 3334 - Primary Aluminum X X (1) X (2)

10. 3861 - Photograph Equipment & 

 Supples

X X (2) X (1)

11. 3241 - Cement Hydraulic X X (3) X (2) X

Source: State info on Title V permits by SIC code received from NC, TX, OH, and NY officials. 

a

 Numbers in ( ) represent the number of facilities in a specific SIC if three or fewer. 

To select the sample of Title V permits from among the selected industries, we obtained a list of

Title V permits issued in each of the 11 SIC codes, identified in Table B.2, for New York, North

Carolina, Ohio, and Texas. The lists included permit number, source name, and date of permit

issuance. After assigning a chronological number to each permit, the team used a random number

generator to select one permit from each SIC code in each State.57 A total of 40 permits were

selected, 10 from each State. The permits had to meet the following criteria in order to be included

in the sample: (1) permit must be a valid Title V permit; (2) permit must be issued on or after

January 1, 1999;58 and (3) permit must not be a source on the same property as other permits in the

sample. 

Although the sample size was not large enough to be statistically projected nationwide, a broad

range of industries and Title V permits were reviewed. Our selection methodology allowed for

some cross-State comparison of Title V permit content and adequacy among specific industries,

and it also allowed us to review Title V sources in the largest emitting industries in each State. For

each source selected, the final Title V permit, SB, ACC, related enforcement documentation, and

the most recent pre-Title V permit were reviewed, if available. Data were collected in each State,

using our data collection instrument, from April to June 2004.
71

Limitations

Information received as a result of EPA regional officials interviews were based largely on regional

officials’ opinions and experiences with Title V, and generally not on in-depth program analysis. 

Because of the many possible technical approaches or methods to controlling and monitoring

emissions, certain aspects of Title V permits can be challenging to assess. Many of these

approaches and methods are subject to differing interpretations. Because of the complexity and

uniqueness of permits, we were not able to develop extensive comparisons by industry. 

Objective 2

To assess the effectiveness of EPA oversight and guidance, we examined EPA region efforts to

review individual permits and conduct program evaluations according to OAR guidance. Copies

of FY2001, FY2002, and FY2003 memorandums of agreement between the regions and OAR, and

program evaluation reports completed by the regions were obtained and reviewed. Testimonial

evidence regarding region permit review activity was obtained during interviews with EPA

regions. Responses were compared to the actual memorandums of agreement to see if they were

meeting the agreements with OAR.

To evaluate EPA responses to public petitions, the Title V petition database on EPA Region 7's

website was reviewed. The data, last updated in October 2004 and representing Title V public

petitions filed from July 1996 to October 2004, were analyzed to determine if EPA was obligated

to respond to these petitions within 60 days, under §505(b)(2) of the CAA. Also, using these data,

an EPA response rate to public petitions was calculated as well as an average time of response to

the petitions.

We also sought to determine if the issues raised in NODs and commitment letters had been

addressed and resolved by the relevant permitting authorities. NODs and commitment letters were

reviewed and the issues identified in each were followed up in three States we visited (North

Carolina did not receive an NOD or issue a commitment letter). We tracked the resolution of the

NODs through the FR and contacted OAQPS and EPA regional officials when there was not a FR

notice available. For commitment letters, we were not able to verify completion of all the

commitments for the States that we did not visit since the commitments were program

implementation issues and not State regulatory issues resolved through trackable rule changes. We

assessed the steps taken towards completing the commitment letters in the States we visited.

To assess the adequacy of guidance provided by OAR to regions and permitting authorities, two

separate EPA guidance databases were reviewed. The Technology Transfer Network, which

contains formal, signed guidance and policy memoranda, was accessed via the EPA Title V

Permits website. This database contained 70 documents. The other guidance database that was

reviewed was the searchable database found on the EPA Region 7 Air Program website, which

contains letters and responses to petitions. The Region 7 database contained more documents than

the Technology Transfer Network, with 220 guidance documents stored in the database. These

databases were reviewed to identify the body of Title V guidance available. Questions were

included in the structured interview form, and asked during interviews with EPA regions, to

determine if there was a need for further EPA guidance on specific Title V related issues.
72

Limitations

EPA issuance of guidance, regarding the Title V program, has been impacted by various court

decisions, making it difficult for the Agency to issue formal guidance on many issues. Informal

guidance, in the form of NODs, commitment letters, and responses to public petitions, is more

difficult to track than formally issued EPA guidance. OIG staff did not have resources to conduct a

comprehensive followup on all oversight and guidance issues, such as all permitting authorities’

resolution of all commitment letter issues. 

Objective 3

To determine whether Title V improved implementation of the CAA, we interviewed

representatives from all 10 EPA regions using the structured interview form. Specifically, we

asked regions to rate how well certain elements of the CAA were met both before and after the

Title V program was implemented. We also asked regions to provide specific examples of any

benefits experienced as a result of the Title V program. In addition, we interviewed representatives

from key stakeholder groups including OAQPS, OECA, permit writers/reviewers from selected

State permitting authorities, environmental groups, and industry representatives. Using the data

collection instrument, we also reviewed actual permits from a selected number of States and

compared their contents and requirements to pre-Title V State permits, where available. 

Limitations

No empirical evidence was available from EPA relating to this objective. Because of this, we

relied on anecdotal evidence to answer this objective. OMB had not evaluated EPA’s Title V

program under its Program Assessment Rating Tool as of the end of our fieldwork.

We conducted our fieldwork from September 2003 to October 2004. All work was done in

accordance with the Government Auditing Standards, issued by the Comptroller General of the

United States.

Prior Audit Coverage

Government Accountability Office

 • Air Pollution: EPA Data Gathering Efforts Would Have Imposed a Burden on 

 States - GAO/AIMD-95-160, August 1995 

• Air Pollution: Status of Implementation and Issues of the Clean Air Act

Amendments of 1990 - GAO/RCED-00-72, April 2000

• Air Pollution: Emission Sources Regulated by Multiple Clean Air Act Provisions -

GAO/RCED-00-155, May 2000

• Air Pollution: Implementation of the Clean Air Act Amendments of 1990

(Testimony) - GAO/RCED-00-183, May 17, 2000

• Air Pollution: EPA Should Improve Oversight of Emissions Reporting by Large

Facilities - GAO-01-46, April 2001
73

 EPA Office of Inspector General

• EPA and State Progress in Issuing Title V Permits (2002-P-00008), March 2002

• Public Participation in Louisiana’s Air Permitting Program and EPA Oversight

(01351-2002-P-00011), August 2002

• EPA Region 6 Needs to Improve Oversight of Louisiana’s Environmental Programs

(2003-P-00005), February 2003
74

Appendix C

Observations on Statements of Basis and Annual

 Compliance Certifications In Four States Reviewed

Statements of Basis 

New York

Up until December 2001, New York did not prepare SBs or equivalent documents for their

permits. In response to a public petition, New York issued a commitment letter to EPA dated

November 16, 2001, in which it agreed to prepare a document called the Permit Review Report for

each Title V permit. Permit Review Reports are New York’s version of SBs, and were prepared

for 8 of the 10 New York Title V permits we reviewed. With two exceptions, these Permit Review

Reports included (1) a description of the facility and the manufacturing process, (2) a summary of

emissions, emissions units, and control devices, (3) an explanation of why the source is subject to

Title V, (4) the attainment status of the area where the facility is located, (5) a summary of

applicable requirements, and (6) an explanation for applicability determinations. One of the Permit

Review Reports did not provide a description of the facility and the manufacturing process. One

other Permit Review Report did not explain regulatory applicability determinations. Six of the

eight Permit Review Reports provided the basis for periodic monitoring decisions. The other two

Permit Review Reports simply indicated that regulations were the basis for periodic monitoring

decisions without providing any specific explanation. 

North Carolina

North Carolina prepared Initial Title V Air Permit Application Reviews (Application Reviews) for

the 10 permits we reviewed, which were considered to be SBs by the State. All of the Application

Reviews included a description of the facility and the manufacturing process, and a summary of

emissions, emissions units, and control devices. Only two of the Application Reviews provided an

explanation as to why the facility needed a Title V permit. However, the most recent Application

Review completed in February 2004 identified the pollutants and the amount of emissions that

exceeded the major source thresholds. The Application Reviews did not indicate the attainment

status of the areas where the facilities were located, though we were told by State officials that

North Carolina did not have any areas of non-attainment at the time the permits were issued. All

10 of the Application Reviews provided a summary of applicable requirements. For eight of the

permits, the corresponding Application Reviews explained the regulatory applicability

determinations. Except for one instance, the Application Reviews provided the basis for periodic

monitoring decisions. 

Ohio

Following the issuance of the December 20, 2001, memorandum from EPA Region 5 to Ohio on

SB content, Region 5 informed a public interest group in a petition response that Ohio had

committed to working with the Region to improve their SBs. However, the SBs completed for the
75

Ohio permits we reviewed did not include several key elements identified in EPA Region 5's 2001

memorandum. State of Ohio officials told us they do not believe that a substantial amount of

resources should be devoted to preparing SBs. These officials believed that their resources should

be used instead to complete their unfinished permits and that much of the same information EPA

Region 5 believes that should be in a SB is already in Ohio permits. The 10 Ohio SBs we

reviewed included (1) a summary of emissions, emissions units, and control devices, (2) an

explanation of why the source is subject to Title V by identifying the major pollutants, and (3) a

summary of applicable requirements. Nine of the SBs included an explanation for the regulatory

applicability determinations. Two of the nine SBs prepared for the permits with monitoring

requirements provided the basis for periodic monitoring decisions. However, none of the SBs

provided an adequate description of the facility, the manufacturing process and the attainment

status of the area where the facility is located. 

Texas

Texas amended their regulations to require SBs for their Title V permits in response to an EPA

NOD issued on January 7, 2002. Texas prepared Technical Summaries for the six permits we

reviewed that were issued prior to 2003 and SBs for the four 2003 permits. We reviewed the SBs

and Technical Summaries for 10 permits. The Technical Summaries provided a description of the

facility and the manufacturing process and also provided summaries of emissions, emissions units,

and control devices. The Technical Summaries generally provided an explanation of why the

sources were subject to Title V and sometimes indicated the attainment status of the areas where

the facilities were located. The Technical Summaries did not provide a summary of applicable

requirements or an explanation for regulatory applicability determinations. Further, the Technical

Summaries did not provide a basis for periodic monitoring decisions. However, Texas’ SBs were

an improvement over Technical Summaries. These SBs provided (1) descriptions of the facilities

and manufacturing processes, (2) summaries of emissions, emissions units, and control devices, 

(3) explanations of why the sources are subject to Title V including charts of the emissions

thresholds for defining major sources, (4) the attainment status of the areas where the facilities are

located, (5) summaries of applicable requirements, and (6) explanations for applicability

determinations. Two of the four SBs provided the basis for periodic monitoring decisions.

Annual Compliance Certifications

New York

All of the New York ACCs we reviewed met the 40 CFR Part 70 requirements. All 10 of the

compliance certifications addressed the general terms and conditions in the permits to varying

degrees. The individual terms and conditions for the emissions sources were identified in the

ACCs. However, generally, we believed the ACCs we examined in New York were more complete

than those we examined in the other three States.

North Carolina

The seven North Carolina ACCs we reviewed met the applicable requirements of 40 CFR Part 70. 

ACCs were not yet due from three Title V permitted facilities since their permits had been issued
59Public Citizen, 343F.3d at 449.

76

within the prior year. We noted that not all of the ACCs included a certification of compliance

with each of the permit general terms and conditions. Prior to FY 2004, the State required the

facilities to report only on compliance with the monitoring, reporting, and record keeping 

requirements in the permits. The facilities were not required to report on compliance with the

general terms and conditions listed in the permit. According to officials in North Carolina, EPA

Region 4 officials requested that all States in the Region require their facilities to address

compliance with the general terms and conditions in ACCs. In FY 2004, three of the seven ACCs

addressed compliance with all of the permit requirements, including the general terms and

conditions. According to North Carolina officials, some confusion still remained among their

permitees regarding their new requirements. 

Ohio

All of the Ohio ACCs we reviewed met the 40 CFR Part 70 requirements. Ohio does not require

identifying the individual general terms and conditions when permittees certify annual compliance. 

Rather, the Ohio ACC form requested only that the facility identify any deviations from the general

terms and conditions. All of the Ohio sources required to have submitted an ACC submitted their

ACC in a timely manner. We noted one instance when the certifying official for the source did not

understand the meaning of continuous and intermittent compliance. A note attached to the ACC

stated, “The facility submitted the report. This is the first year that the facility is reporting. 

Although there are many ‘I’ for intermittent - the facility did not have any deviations in the

permit...” As explained in our report, there was confusion as to how the terms “intermittent and

continuous compliance” should be interpreted. The State official we interviewed said that it

appeared that the official did not understand the form and that the State would work with them.

Texas

In early 2002, Texas sent a commitment letter to EPA Region 6 officials promising to modify their

ACCs to clarify how material information other than the required monitoring should be reported. 

The Texas ACCs we reviewed did address the issue of reporting other material information, but the

forms submitted by facilities in Texas were not as complete as those received by the other States

we visited. The ACCs submitted by facilities in Texas consisted of a cover form that addressed the

overall compliance with the terms and conditions of the permits and included 6-month deviations

reports. The individual permit terms and conditions are not identified in the ACC cover form or in

the deviations report. The cover forms only state that the facility is in compliance or identifies any

deviations that occurred in the past year. The deviation reports are required to be submitted semiannually in accordance with the provisions found in the general terms and conditions section of the

Title V permits. The deviation reports are used to identify monitoring, reporting and recordkeeping deviations along with site-wide deviations associated with the general terms and

conditions. The ACCs do not identify whether there was continuous or intermittent compliance

with each individual permit term or condition. The method for determining compliance is also not

identified in Texas’ ACCs. In Public Citizen, the Court ruled that EPA had the discretion to

approve the ACCs received by Texas.59

Table C.1 shows the differences between the four States discussed above as to how permit terms
77

and conditions are addressed in compliance certifications. As noted in the chart, the content of the

annual certifications differed substantially by State.

 Table C.1: Permit Terms and Conditions From Permits Reviewed in Four States

State Individual general terms and

conditions identified in ACCs?

Individual terms and

conditions for emissions

sources identified in

ACCs?a

New York Yes, in all certifications Yes

North Carolina Beginning in 2004; 4 of the 7

certifications identified at least one

general term and condition

Yes

Ohio Reported deviations only Yes

Texas Facilities report deviations in the

attached deviation reports per Texas

officials

Reported deviations only in

attached deviation report

a

 The terms and conditions were monitoring, reporting, and record keeping requirements.
78

Appendix D

EPA, State, and Local Agency Roles and

 Responsibilities in Implementing Title V

EPA Promulgates Rules, Provides Guidance, Oversees Authorized Programs

EPA is responsible for promulgating regulations; establishing the minimum elements of a Title V

permit program; reviewing, approving, and overseeing permit programs; reviewing permits issued

by the State and local agencies; and providing guidance and technical assistance to State and local

agencies, industry, and others to facilitate achievement of program goals. EPA is also responsible

for implementing permit programs for any State and local agencies that do not implement their

own programs.

While State and local agencies primarily implement the Title V program, EPA has an important

oversight role. EPA reviews and approves each State and local agency’s operating permits

program; oversees implementation of the program; reviews proposed permits; and, if necessary,

objects to improper permits proposed. In addition to approving State or local agency programs,

EPA is responsible for ensuring that State and local agencies administer and enforce the programs. 

If EPA finds a State or local agency is not adequately administering and enforcing a part of the

Title V program, EPA is to notify the State or local agency of its finding. If the deficiencies are not

corrected, EPA can apply sanctions, withdraw the program, or administer a federal program in that

State.

Within EPA’s OAR, OAQPS is responsible for developing national regulations and guidance for

Title V and providing technical assistance to EPA regions and the States. Regions are responsible

for reviewing proposed permits, conducting Title V program evaluations, assisting State and local

agencies in getting initial permits issued, and monitoring permit renewal requirements. Every two

years, OAR and the regions negotiate a Memorandum of Agreement (MOA) identifying, among

other things, the Title V oversight activities that EPA regions are to perform.

States, Local Agencies Authorized to Implement Title V

Once approved by EPA, State and local agencies are responsible for establishing and implementing

their permit programs, issuing permits to major sources of air pollution located within their

geographical jurisdictions, collecting fees to cover the cost of the programs – including the initial

costs of issuing permits to sources – and ensuring that sources comply with their permit limits. 

Under the CAA, State and local agencies that do not adequately implement the Title V permit

program may lose their authorization to continue administering the program.

There are 112 State and local agencies in the United States approved by EPA to administer the

Title V permitting program. In some States, local agencies are responsible for implementing air

pollution control programs, such as Title V. To have an approvable program, State and local

agencies must be able, through fees, to recoup all reasonable costs of developing and administering

the program, including the reasonable costs of emission and ambient monitoring, modeling, and

reviewing and acting on permit applications. The objective of the fee is to ensure the State or local

agency has all necessary resources to administer the permit program with a minimum of delay. 

Other key provisions that must be part of a Title V program before EPA will approve it include:
79

• Monitoring and reporting requirements.

• Authority to terminate, modify, or revoke and reissue permits for cause.

• Authority to enforce permits, permit fee provisions, and the requirement to obtain a permit.

• Public notification and opportunity for comment for every new permit and when permits are

renewed or significantly revised.

• The requirement that sources provide emission reports to their permitting authorities at least

semi-annually and certify compliance status annually. 

Also, Title V permits are to contain all air pollution control requirements that a source must meet

under the CAA. This includes requirements established by EPA, State, and local agencies as part

of a federally approved program, as well as State and local agencies that are not required by the

Act and are not federally enforceable.
80

Appendix E

Status of EPA Regional Evaluations and

 Notices of Deficiencies

 Table E.1: Status of EPA Regional Evaluations of Title V Programs

Region Number of

permitting

authorities to be

evaluated through

Sept. 30, 2006

Number

evaluated

through

December 31,

2004

Number

with reports

issued

Number of

completed

evaluations

without written

report as of

December 2004

1 6 3 1 2

2 4 2 1 1

3 7 3 2 1

4 17 4 3 1

5 6 4 1 3

6 5 2 2 0

7 5 4 0 4

8 6 4 2 2

9 6 2 1 1

10 10 3 1 2

Total 72 31 14 17

Source: Data provided by EPA OAQPS and region officials

 Table E.2: Status of Title V Notices of Deficiency - October 2004a

Permitting authority NOD issue date Date of proposed

approvalb

Date of final

approvalb

Indiana 12/11/01 5/16/02 5/16/02

Michigan 12/11/01 6/23/03 11/10/03

District of Columbia 12/11/01 4/16/03 4/16/03

Washington 1/2/02 6/28/02 12/2/02

Texas 1/7/02 3/2/04 Not Issued

Missouri 3/25/02 9/17/03 9/17/03

Hawaii 4/1/02 Not Issued Not Issued

Ohio 4/18/02 9/30/03 11/20/03

34 Local Agencies in

California

5/22/02 10/8/03 11/21/03

Wisconsin 3/4/04 Resolution Pending Resolution Pending

Source: Data provided by EPA OAQPS and region officials

aListed in chronological order from NOD issue date.

 bThe proposed and final approval dates are the dates EPA proposed or issued final approval of the action

taken by the permitting authority to correct the last deficiency in the NOD.
81

Appendix F

Consolidated Agency Response to Draft Report and OIG

Evaluation 

 

 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C. 20460

 

OFFICE OF 

AIR AND RADIATION

MEMORANDUM

SUBJECT: Response to Draft Report No. 2003-000339 “Substantial Changes Needed in

Implementation and Oversight of Title V Permits If Program Goals Are To Be

Fully Realized”

FROM: Jeffrey R. Holmstead 

Assistant Administrator

TO: J. Rick Beusse, Director for Program Evaluation, Air Issues

Office of the Inspector General

I am responding on behalf of my office, the Regional Offices, and the Office of

Enforcement and Compliance Assurance (OECA) to the Office of the Inspector General’s (OIG)

draft report of findings and recommendations concerning State Title V permit adequacy and EPA’s

oversight. We appreciate the insights the report provides in addressing the question: “Are Title V

permits clearly written and complete, and is the permitting program as a whole achieving its

mandated goals?” and agree with your findings that the program could benefit from improvements

to permit content in some areas. While the Agency has been - and continues- reviewing permit

content and program adequacy, we agree with the OIG’s findings that we can do more. Along

these lines, we are proposing to expand the use of our stakeholder workgroup as a means of

identifying what is working (and what is not working), to streamline the petition response process

where feasible, and to develop operating plans that combine oversight with permit reviews and

evaluations. In general, we disagree that guidance documents offer solutions to Title V program

implementation issues, especially now that a decade has passed since program approvals and

because almost all permits have been issued. We believe it is better to work with our Regional

Offices on improving the implementation of the Title V program when specific issues arises with a

given permitting authority.

Attached is our coordinated response, which includes a page-by-page editorial comment

section and a section with the OIG draft recommendations and our responses. If you have any

questions about this response, please contact Ray Vogel at 919-541-3153.
82

Attachments

cc: Beth Craig

Steve Page

Bill Harnett

Bill Wehrum

Scott Mathias

Rick Beusse

Jan Cortelyou Lee

Kay Holt

Laurie Trinca

Scott Voorhees

Ray Vogel
83

Substantial Changes Needed in Implementation and Oversight of Title V

Permits If Program Goals Are To Be Fully Realized

Comments on Report Content

Report Pages 6, 39 and 79:

EPA Comment: The numbers on pages 6 (Chapter 1), 39 (Chapter 3) and 79 (Appendix E) are

now out of date. The updated numbers through the end of 2004 are:

 Table E-1: Status of EPA Regional Evaluations of Title V Programs

Region Number of Permitting

Authorities to be

Evaluated Through

Sept. 30, 2006

Number

Evaluated

through Dec.

31, 2004

Number with

Reports

Issued

Number of

Completed

Evaluations

Without Written

Report as of

December 2004

1 6 3 1 2

2 4 2 1 1

3 7 3 2 1

4 17 4 3 1

5 6 4 1 3

6 5 2 2 0

7 5 4 0 4

8 6 4 2 2

9 6 2 1 1

10 10 3 1 2

Total 72 31 14 19

Note: After the Agency provided its response to our draft report, an OAQPS official notified us that there was an 

 addition error in the above Table. The corrected information is reflected above.

OIG Response:

Table E-1 and relevant references to the table have been changed in the report based on

information provided by OAQPS.

Report Page 15: 

EPA Comment: Regarding incorporation by reference (IBR), while Region 6 agrees IBR can lack

clarity and make the review of permit conditions time consuming, EPA believes IBR can be a very

effective tool when used properly.

Report Pages 15-17: The report states that EPA officials in 6 out of the 10 regions perceive the

lack of nationwide guidance result in inadequate statement of basis (SB). Environmental groups

also reported problems with SB in citizen petitions.

EPA Comment: The report does not explain that EPA investigated the problems, although in the

following sentence the report correctly states that SBs have improved.

OIG Response:

In Chapter 3 of the report, we noted that SBs in Texas improved and that New York started
84

preparing Permit Review Reports as a result of NOD and commitment letter resolutions between

EPA and the permitting authorities.

Report Pages 15-17: The report states that EPA’s position is that permitting authorities could

obtain information on the contents of acceptable SBs by reviewing prior court case decisions and

EPA’s response to public petitions. However, not all . . . officials in EPA Regions may be aware

of applicable court decisions.

EPA Comment: Because EPA responses are public documents, noticed in the FR and available on

EPA’s web page, it seems an unnecessary effort to rewrite them in additional guidance documents. 

In fact, citizen groups such as NYPIRG make use of our SB-related policy statements in their

lawsuits. The same objective could be accomplished more efficiently by promoting the reading of

pertinent documents, and by providing opportunities during conference calls to describe and

discuss these decisions, which the Agency currently does. This is explained in our

recommendation responses.

OIG Response:

We disagree with EPA over the reliance on petition responses for guidance. We believe the use of

petition responses in lieu of guidance is inefficient and results in duplicative work being performed

by permitting officials. As shown in our report, the current situation has resulted in

inconsistencies among the four States we visited. We also noted that in one case, an EPA official

was unaware that a petition addressing SBs had been issued. 

Also, States are reluctant to follow guidance that is not issued nationwide or through a rule. Thus,

in addition to the inefficiency noted above, lack of guidance may allow ineffective actions on key

permit provisions. In their response to our draft report regarding their SBs and the applicability

of the Region 5 guidance on SBs, Ohio EPA responded to us that the Region 5 memorandum dated

December 20, 2001 only included a list of desired elements and not required elements. They also

wrote “There is no national guidance, policy, or preamble documentation in either the Clean Air

Act or proposed and final versions of Part 70 supporting the SB elements listed in the EPA

memorandum.” We continue to believe that one document that provides these elements would

prevent these types of disagreements and better ensure consistency among the States and regions. 

Report Pages 15-17: The report states that a memorandum from Region 5 to Ohio and a Region 9

petition response were the only EPA documents that provided specific guidance as to what

constitutes an adequate SB.

EPA Comment: This sentence is misleading, first, by referring to two documents as the only EPA

guidance documents, and second, by minimizing the importance of guidelines on the contents of

SBs, found in a number of EPA petition responses.

OIG Response:

The wording in the report was modified.

Report Pages 15-17: The report recommends issuing guidance (or a rule revision?), citing

concerns that the lack of nationwide guidance on the contents of SB results in SBs that differ from

state to state, and suggests that SB lacking EPA suggested elements are incomplete.

EPA Comment: As noted in EPA’s responses to citizen petitions, EPA expects that “[e]lements

included in these reports may differ, depending on the type and complexity of the facility.” EPA
85

interprets that, in general, SB ought to contain, among other information, a list of anything that

deviates from a simple recitation of requirements, and in general should draw attention to items

that would be the highest priority for EPA and persons reviewing the permit, such as new

conditions. In its responses to petitions, EPA has also explained that there are circumstances when

information is not required, for example: when the simplicity of the source does not call for

additional detail to understand the legal and factual basis for the draft permit conditions, such as

national gas-fired turbines, where the norm is not to include additional monitoring for compliance

with the opacity standard. Also, in a response to a petition on the Seminole Road Municipal Solid

Waste Landfill, EPA stated that the regulation does not require that the SB contain the facility’s

compliance history.

OIG Response:

We noted more inconsistencies in the elements of the SBs between the four States we reviewed

rather than differences among the types of facilities located within the States. In general, each of

the four States had their own formats for their SBs. 

Report Page 21: The report states, in part, “EPA disagreed with monitoring concerns raised in

public petitions against the New York and Ohio permitting programs, stating that while they would

watch for individual problems in permits, overall the programs included adequate monitoring and

met the minimum requirements of 40 CFR part 70.”

EPA Comment: The Region (and ultimately, the Administrator) did not always disagree with

monitoring issues raised in New York petitions against individual permits and, in fact, granted

such petitions in some cases.

OIG Response:

The sentence referenced above discusses petitions specific to overall Title V programs, not to

individual permits. However, the report was modified with a footnote to acknowledge that EPA

did not disagree with all monitoring issues raised in New York petitions against individual

permits. 

Report Page 28:

EPA Comment: Please explain your concern about lack of completeness in Annual Compliance

certification, and please include a reference to the October 22, 1997 preamble to Part 70 revisions -

Compliance Certification Requirements (62 FR 54936) which allows the facility owner to crossreference the permit or previous reports to identify the various information elements required in a

certification. Also, the preamble states “This provision allows the actual certification to be a short,

concise compliance statement that is not a burden by restating detailed information that has already

been provided.” Therefore, it has been determined that a short and concise compliance statement

meets minimum legal requirements. 

OIG Response:

In the report, we noted that the short and concise compliance statements meet legal requirements

and made reference to the preamble to Part 70. However, we also note that not all permit terms

and conditions, such as the general terms and conditions, are specifically addressed in all ACCs

throughout the country. In addition, some States require that the facilities in their State address

each monitoring, record keeping, and reporting requirement in their ACC. We believe that the

guidance would be useful in avoiding inconsistencies that are now occurring nationwide.
86

Report Page 37: OIG states that Ohio committed to issuing SB guidance, but the OIG saw no

evidence that this was accomplished.

EPA Comment: Ohio's SB guidance is part of the SB form which was revised as a result of the

commitment letter.

OIG Response:

Wording was changed on page 46 to indicate that this issue was not completely resolved because

there is still an issue with SB guidance. 

Report Pages 39,40: 

EPA Comment: In the discussion on program evaluations, the OIG made no distinction about the

style, content or format of written reports between different Regions or how that may play into

timelines for completion. At least one Region has taken a position that it will create a report that

accurately reflects not only the Regional view of their State and Local air programs but also

reflects the State and Local opinion of their program. To that end, the Region provides the State or

Local agency the opportunity to comment on the draft Regional report, just as the OIG provides

EPA the opportunity to comment on its draft reports. Regions spend a significant amount of time

preparing the reports in the belief that a well-conducted evaluation will serve as an appropriate

baseline and serve as a blueprint between EPA and the State/Local agencies with respect to

targeting areas on which to focus the Agency’s attention. The Regions have received very positive

feedback to date from the states evaluated and have committed to develop an on-going evaluation

process that will continue after the initial evaluations. Region 4 requests that the report

acknowledge this.

OIG Response:

We remain concerned about the slow completion rate of program evaluation reports. However,

the report was revised to include some of the information provided in the comment above as

reasons why the reports may take longer to complete than originally anticipated.

Report Pages 40-42:

EPA Comment: This report should recognize that EPA does take steps to address a citizen’s

petition well before the Agency issues a final determination. In many cases, Regional Offices

work as a mediator between the state permitting authority and the concerned citizen or citizens’

group. Sometimes, as a result of a Region’s efforts, a State is willing to revise a permit before

receiving an official EPA determination. Although our information is anecdotal, it appears that

open communication between involved parties has helped facilitate resolution in some cases. Very

few citizens’ groups have actually followed through and filed lawsuits involving untimely

responses to petitions.

OIG Response:

While some regional offices may have facilitated informal communications between permitting

authorities and petitioners, the delay, or absence, of official EPA responses to petitions has also

continued. Further, although relatively few lawsuits have been “actually followed through and

filed” against EPA for untimely petition responses, we believe that the fact that such lawsuits have

been filed at all serves as an indication that the response process needs improvement. 
87

Report Page 41: The report states that “Additionally, a key official at OECA indicated that

responding to public petitions is not a high priority within EPA.” 

EPA Comment: Responding to public petitions is a high priority within some Regions, as

evidenced by the number of staff committed to the effort. For example, there are 5 regional staff

attorneys who spend at least part of their time reviewing title V petitions and there is one GS-15

attorney supervising this effort who spends approximately 75 percent of her time overseeing the

legal review of the title V petitions submitted to the Region.

OIG Response:

While responding to public petitions may be a high priority within some EPA regions, the overall

response rates, as well as interviews with EPA officials, indicate that petition response is not a

high priority within EPA as a whole.

Report Page 42:

EPA Comment: The EPA has prepared a draft Federal Register notice which identifies resolutions

to the remaining Notice of Deficiency issues in Texas. Region 6 expects the proposal to be

published in the spring of 2005.

Report Pages 42, 43: The report states on page 42 “However, NOD deficiencies remain in Texas,

Hawaii, and Wisconsin...” and on page 43 “NOD issues have been resolved with all States except

for Texas, Hawaii, and Wisconsin...”.

EPA Comment: Please update the report to reflect that State of Hawaii has corrected all of the

deficiencies identified in the NOD. Under the procedures outlined in 40 CFR 70.10(b), the State

had 18 months to correct the deficiencies identified in the NOD. Working closely with the EPA,

Hawaii adopted regulations that addressed all of the identified deficiencies. The adopted

regulations were signed by the Governor of Hawaii on November 4, 2003 and became effective on

November 14, 2003. All of the deficiencies have been corrected by the State and all that remains

to be done is for Region 9 to issue a FR notice proposing to approve Hawaii’s actions. Since the

State’s program has been revised to correct all of the deficiencies in accordance with 40 CFR

70.10(b), Region 9 believes that the references to the State of Hawaii should be removed from the

two sentences listed above.

OIG Response:

This information has been noted in the report. However, we do not consider the NOD to be

resolved until a final FR Notice has been issued. Also, as noted in the Agency’s response, EPA

Region 9 has not yet issued its proposal to approve the State’s actions and allowed an opportunity

for public comment on the proposal. A modification to the report was made to change the effective

date of the regulation to November 14, 2003.

Tables 2-1, 2-3 and 2-8: These tables show permitting authorities identified by the Regions as

having problems with clarity, monitoring and practical enforceability

EPA Comment: . The tables should be clarified either in the title or in the footnotes as examples

offered by the Regions and not necessarily an exhaustive list of programs or issues. These three

tables group individual permitting authority issues by EPA Region. It is difficult to discern

whether certain issues apply to only one permitting authority, or whether they apply to all

permitting authorities listed in that Region. It would be clearer if the table included distinct
88

rows for each permitting authority.

OIG Response:

We revised the table titles to clarify that the permit clarity, monitoring, and practical

enforceability problems identified by the regions are examples.

Table 2-3: Monitoring problems in Title V permits identified by regions.

EPA Comment: Indiana is noted as having a lack of sufficient periodic monitoring

requirements. This should be removed as an issue for Indiana. Although Region 5 noted to the

OIG that it had found some monitoring issues in permit reviews, the Region did not identify any

periodic monitoring concerns, and noted to OIG that monitoring for most units is adequate.

Minnesota is noted as having inadequate periodic monitoring. This is an overly broad

conclusion and should be removed. Region 5 noted to the OIG that, in the past, some Minnesota

permits have contained inadequate periodic monitoring. However, this was not considered a

significant problem in their Title V program. Currently, the Region has not found this to be a

prevalent issue in Minnesota Title V permits.

OIG Response:

The paragraph leading into Table 2-3 acknowledges that regions believe the majority of

permitting authorities include adequate monitoring provisions in their permits. However, we

believe it is important to identify the types of problems that have been found through region

permit reviews and oversight. To address Region 5's concerns, we deleted the reference to

“periodic” for Indiana, and revised the table to include the phrase “in some permits.” We also

revised the table to include the phrase “in some permits” for Minnesota. We believe this should

clarify to the reader that the problems are not widespread within these States.

Table 2-8: Practical enforceability problems identified by EPA regions.

EPA Comment: Indiana is identified as needing anti-credible evidence (ACE) buster language in

permits. This issue has been resolved and should be removed from the table. Indiana now

includes an ACE buster language condition in each permit.

Michigan is identified as lacking Federal enforceability. Although Region 5 did note this in

its talking points to the OIG, there was no basis for this statement and it should be removed.

Region 5's talking points to the OIG note that, in general, Michigan's permits are practically

enforceable.

OIG Response:

We revised Table 2-8 to include the updated information on Indiana. A footnote clarifies that

this was a prior problem that has been resolved, according to the Region. Because EPA Region

5 indicated that their description of Michigan permits as lacking Federal enforceability was an

error, we removed Michigan from the table. 
89

OIG Recommendations and EPA Responses

Recommendation 2-1. Develop and issue guidance on annual compliance certification content

which requires responsible officials to certify compliance with all applicable terms and

conditions of the permit.

Response: Three Regions agree with the recommendation to prepare guidance and a fourth

would also agree if the resulting guidance were properly focused and specific in nature. A fifth

Region noted that some States cannot go beyond EPA rules and therefore, if anything is needed,

it must be done by rulemaking. They did not express an opinion on the appropriateness of

rulemaking on this issue.

OAR disagrees with the recommendation that rulemaking guidance is needed to

clarify that responsible officials must certify compliance with all applicable terms and conditions

of the permit because the rules already contain an equivalent provision that requires the

identification of each permit deviation – sources experiencing deviations from their permit terms

must certify intermittent compliance. 40 CFR § 70.6 (c)(5) directly requires information as

follows: permit terms (which encompass the Clean Air Act requirements and their required

methods), other means (for example, compliance determination methods used voluntarily), the

compliance status (including identification of permit deviations) and other facts required by the

permitting authority. OAR agrees that, should States develop forms, these must be consistent

with the rules; however, variations in format from State to State are expected due to the

flexibility given in the rules – which allows the required information to be cross referenced from

the permit or previous reports. Issuing new guidance at this late date may undercut existing State

programs, especially those that are stricter than requirements in guidance. There is little or no

evidence of a fundamental problem with annual compliance certifications. Please elaborate on

the widespread problem that would be corrected with national guidance.

OIG Response:

Based on our discussions with and information obtained from EPA regional offices and many

outside stakeholders, and our examination of ACCs in four states, we continue to believe that

EPA national guidance or a rule on ACC content should be issued to maximize the effectiveness

of the Title V program. Region and State officials indicated that as a result of Title V, they have

seen greater compliance awareness by permittees which may be due, in large part, to

compliance certification requirements. As reported in Chapter 4, two States reported an

increased use of self-audits, increased use of environmental systems, increased resources

devoted to environmental control systems, increased resources devoted to compliance

monitoring, and increased awareness of compliance obligations – all as a result of ACCs. 

Consequently, we continue to believe that ACCs, when used properly, are an effective tool for

improved compliance and that permittees should be required to certify to each obligation

created by a permit term or condition. 

EPA regions indicated that there is a disparity in ACC content across the Nation. We noted that

one State we visited significantly improved their ACC completeness when asked to do so by EPA

regional officials, while another State we visited required that their permittees certify only to

overall compliance with the permit and to identify any deviations. The differences in State

requirements on ACC content may also place increased pressure on those States that have more

comprehensive ACCs to reduce their reporting requirements. For example, we were told by one

Region that one of their States is being pressured by industry to change their ACC form to one
60 EPA has described the necessary and suggested components of a statement of basis in numerous

previously issued title V orders responding to citizens’ veto petitions. See, e.g., In the Matter of Consolidated

Edison Co. Of NY, Inc. Ravenswood Steam Plant, Petition No. II-2001-08, at pages 39-45 (Sept. 30, 2003); In the

Matter of Port Hudson Operation Georgia Pacific, Petition No. 6-03-01, at pages 37-40 (May 9, 2003); In the Matter

of Doe Run Company Buick Mill and Mine, Petition Number VII-1999-001, at pages 24-26 (July 31, 2002); In the

Matter of Los Medanos Energy Center, at pages 9-13 (May 24, 2004).

90

which would require less content. We believe the effectiveness of ACCs would be reduced if

ACC comprehensiveness were lessened due to pressures from industry on a nationwide basis. 

Recommendation 2-2. Issue the draft rule regarding intermittent versus continuous

monitoring as it relates to annual compliance certifications.

Response: EPA agrees with this recommendation.

Recommendation 2-3. Develop nationwide guidance on the contents of statements of basis

(SB) which includes discussions of monitoring, operational requirements, regulatory

applicability determinations, explanations of any conditions from previously issued permits

that are not being transferred to the Title V permit, discussions of streamlining requirements,

and other factual information, including a listing of prior Title V permits issued to the same

applicant at the plant, attainment status, and construction, permitting, and compliance

history of the plant.

Response: One Region agrees with the recommendation and two others would agree if the

resulting guidance were properly focused and specific in nature. A fourth Region would prefer to

point to model SBs instead of guidance. 

OAR disagrees with the recommendation that additional guidance is needed to

improve the adequacy of SBs. OAR believes that its position, as stated in EPA’s responses to

citizen petitions on state programs or permits60, provides reasonable guidelines as to the types of

information that should be in SBs while retaining the flexibility needed for state permitting

authorities to prepare these documents without imposing an unnecessary paperwork burden. 

Furthermore, part 71 permits as written by our Regional offices provide examples of well

documented and thorough SBs (for example SBs for Devon SFS Operating, Inc. and Red Cedar

Gathering Company). The ongoing title V program reviews include elements for assessing

states’ general practices regarding preparation of SBs, including whether the permitting authority

provides guidance to its permit writers and how the permitting authority ensures that guidelines

are followed when preparing SBs. To the extent that the Regions make a determination that

prevalent inadequacies in SBs result in permits not in compliance with the approved program

rules, EPA will consider issuing NOD’s in accordance with section 502(i) of the CAA and 40

CFR section 70.10(b). Please elaborate on the widespread problem that would be corrected with

national guidance.

OAR recognizes that as EPA officials deal with operating permits implementation

issues - including the adequacy of SBs - they must be familiar with EPA’s position on these

issues. Although petition responses are public documents, are widely available, and are

commonly used by citizen groups, OAR recognizes that additional efforts are needed to bring

awareness of the issues addressed in these documents within EPA. The EPA has started

promoting these documents internally by compiling lists of all the issues addressed in EPA
91

responses together with the references to the particular document(s) where the issue is discussed.

The EPA headquarters will consult with the regions on additional efforts needed to disseminate

this information and will prepare and implement a plan for this purpose.

OIG response:

We believe that complete SBs are an effective document to aid the regulatory community, other

key stakeholders, and the general public in the review and understanding of Title V permits. As

noted in their response to the draft report, OAR believes that the petition responses and regional

guidance have provided sufficient guidance. However, as noted in the report, 8 of the 10 EPA

regions told us that inadequate or missing SBs were a problem in some of their State or local

permitting authorities. Also, we noted significant disparities in SBs among the four States we

visited. Further, we were informed that the regions have previously requested national guidance

from EPA on SBs. We do not believe regional guidance is sufficient because one region may be

required to use guidance for which they did not have an opportunity to provide input. While we

recognize that petition responses can be used in lieu of guidance, we also believe that petition

responses are an inefficient and ineffective method for disseminating guidance. For example, we

noted one instance in which a key regional office official was unaware of another region’s

petition response that provided some guidance on SBs. The use of petition responses as a

primary source of guidance requires each permitting official to independently research and

interpret petition responses to seek answers to SB issues. Further, some permitting authorities

are precluded from relying on EPA guidance and can only rely on Federal rules. We believe it

would be more efficient for the regions to correct SB inadequacies through national guidance or

a Federal rule on SB content.

Recommendation 2-4. Through its periodic grant discussions with EPA regions and State and

local permitting authorities, emphasize improvements in Title V permit clarity by minimizing

using incorporation by reference (IBR), clearly citing applicable underlying regulations,

emphasizing conciseness in permit format, and using statements of basis to identify and

explain permit decisions related to streamlining.

Response: EPA Headquarters and the Regions disagree with the recommendation. Funding for

title V programs comes from permit fees and section 105 grant monies cannot be applied. It is

inappropriate to raise issues related to improving title V permit clarity in the context of grant

funding.

OIG Response:

We removed the reference to “grant” discussions from the recommendation, but we continue to

believe that EPA should emphasize such improvements through its periodic Title V discussions

with State and local agencies. Additionally, we believe EPA regions could emphasize such

improvements during their evaluations of permitting authorities’ Title V programs.

Recommendation 2-5. Expeditiously follow through on its commitment in the January 2004

umbrella monitoring rule to develop periodic monitoring guidance.

Response: EPA agrees with the recommendation. Consistent with the umbrella monitoring rule,

we are developing a notice and comment rulemaking to provide guidance on periodic monitoring
92

required under the provisions of 40 CFR §§70.3 (a)(3)(i)(B) and 71.3 (a)(3)(i)(B). This rule will 

address when the requirements for periodic monitoring in title V rules are triggered to improve

monitoring in underlying emission standards and rules, and when it is triggered, how to create

periodic monitoring in the permit. We hope to propose this rule in early 2005.

Recommendation 2-6. Develop nationwide guidance designed to help EPA regional offices

and State and local permitting authorities in preventing practical enforceability problems in

Title V permits.

Response: The EPA agrees that national guidance is an effective way to provide instruction to

EPA regional offices and State and local permitting authorities, and over the years EPA has

generated numerous guidance documents addressing practical enforceability. However, it is

EPA’s view that practical enforceability problems arise in individual permits and are not so

ubiquitous across States to require the development of additional national guidance. 

Nonetheless, EPA believes that the issues identified by the OIG can, and should, be addressed

through both training and more effective oversight. Four Regions disagree with the

recommendation, feeling that concerns about practical enforceability are best addressed in the

New Source Review program, or that national guidance already exists and training is a more

effective improvement. One Region agrees with the recommendation if the guidance appears in

the form of a rulemaking on Potential to Emit.

OIG Response:

We agree that the goal of preventing practical enforceability problems could be addressed

through effective, periodic training and more effective oversight as opposed to guidance. We

revised the recommendation to reflect this approach. 

Recommendation 2-7. Establish and implement a plan to review the adequacy of monitoring

provisions in SIPs.

Response: EPA agrees with the recommendation. Consistent with the umbrella monitoring rule,

we are developing an advance notice of proposed rulemaking to ask for comment to identify

inadequate monitoring in certain underlying emission standards and rules, including SIP rules,

and to ask for input on the best methods to correct such monitoring, such as through rulemaking

or other similar mechanisms. As part of this notice, we hope to provide a list of example patterns

of inadequate monitoring that may be found in such standards and rules. Although we have not

made up our mind as to next steps, it is likely that if the outcome of this process demonstrates a

need, we would initiate one or more future notice and comment rulemakings to correct any

inadequate monitoring we may determine to exist in such rules. We hope to issue the notice in

early 2005.

Recommendation 2-8. Ensure that State and local permitting authorities consistently apply

periodic monitoring provisions to all applicable permit requirements, and ensure that

permitting authorities use AP-42 emissions factors in permits only after other more reliable

methods for determining compliance have been considered.

Response: EPA Headquarters and the Regions disagree with the recommendation. It is

important that the best information be used by States in specifying compliance determination
93

methods. Sometimes AP-42 emission factors are the best that is available. Two Regions

cautioned that limits must be in place to avoid excessive oversight of all permits by EPA. This

issue should be addressed through training.

OIG Response:

Our recommendation states that AP-42 emissions factors should be used “only after other more

reliable methods for determining compliance have been considered.” We do not recommend

that AP-42 factors never be used. We agree that the objectives of our recommendation could be

accomplished through effective, periodic training.

Recommendation 3-1. Promulgate the draft order of sanctions rule which provides notice to

State and local agencies, as well as the public, regarding the actions that will be taken when

Notices of Deficiencies are not timely resolved by State and local Title V permitting

authorities.

Response: EPA agrees with the recommendation. As noted in the OIG report, in calendar years

2001 and 2002, EPA issued 10 NODs to permitting authorities to address regulatory problems in

their title V programs. EPA also received 23 commitment letters from State and local permitting

agencies during this period to address implementation problems in their title V programs. States

have resolved the majority of issues identified in NODs and commitment letters, with remaining

commitment letter issues unresolved in Ohio. Hawaii adopted regulations that addressed all of

the identified deficiencies. All that remains to be done is for Region 9 to issue a Federal Register

notice proposing to approve Hawaii’s actions. Region 6 has prepared a draft Federal Register

notice which identifies resolutions to the remaining NOD issues in Texas, and the Region

expects the proposal to be published in the spring of 2005. While we agree that promulgating the

Order of Sanctions rule is our goal, it is currently not a priority for the agency.

OIG Response:

In light of the fact that OAQPS identified the need for the rule in 2002 in connection with our

report titled, “EPA and State Progress in Issuing Title V Permits, Report No. 2002-P-00008,”

issued on March 29, 2002, we believe this rule should be issued expeditiously.

Recommendation 3-2. Issue the four draft Title V program guidance and rules developed by

OAQPS and submitted for approval in 2002.

Response: With the exception of the Order of Sanctions rule, EPA disagrees with these

recommendations. Sufficient time has passed for the issues to reach resolution through other

means or are no longer of interest to State and local agencies. Two Regions agree with the

recommendation (although one considers these issues outdated). A third Region noted that some

States cannot go beyond EPA rules and therefore, if anything is needed, it must be done by

rulemaking. They did not express an opinion on the appropriateness of rulemaking on this issue.

Order of Sanctions Rule - See previous response to Recommendation 3-1 regarding the Order of

Sanctions rule.

Permit Renewal Application Forms Guidance - This guidance is no longer needed because

Region 4 has approved a rule in Kentucky that allows for streamlining of renewal applications. 

This provides guidance that can be applied nationally.
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Annual Compliance Certifications Guidance - The original draft guidance as prepared over two

years ago is now out of date and was not reviewed by EPA management due to competing

priorities with New Source Review. Were such guidance to be prepared now, it would need to

come in the form of a notice-and-comment rulemaking. There are no plans at present to

undertake a rulemaking on this issue.

Processing Program Revisions Guidance - The lack of any recent requests for guidance on

processing program revisions suggests that this guidance is not needed at this time.

OIG Response:

We agree with the Agency that the Order of Sanctions rule should be issued. We disagree with

the Agency on ACC content issues in that there is a continuing need for ACC consistency and

completeness on a nationwide basis and that this need could be significantly addressed by

issuing national guidance or a Federal rule, as appropriate. We agree that the guidance for

permit renewal application forms and processing program revisions may no longer be needed

and have substantially revised and consolidated our recommendation to reflect these

considerations. 

Recommendation 3-3. Provide a document guide on the EPA public website which would

assist the public in identifying and locating published EPA statements on key Title V program

issues.

Response: EPA disagrees with the recommendation. The designated repository for OAR policy

and guidance (where key title V program issue documents are stored) is the OAQPS Technology

Transfer Network (TTN). The TTN is intentionally limited to documents originating from and

signed by OAR officials, and cannot include Regional materials. Regional materials are easily

accessible, however, by linking to Region 7's database. One Region agrees with the

recommendation and one Region feels this link already exists and a new one is not needed.

OIG Response:

As indicated in EPA’s response above, Title V guidance can be found on both the OAQPS TTN

and Region 7's website. We are not suggesting that the databases be merged or that a new

database be created. Rather, we are suggesting a more user-friendly tool to aid permitting

officials and the public alike in locating EPA positions on key Title V issues. Currently, in order

to identify all EPA written policy positions on an issue, one must use the search function to

review both databases. As discussed in Chapter 3 of this report, OAQPS staff provided OIG

with a copy of a document they prepared summarizing the Agency’s position on a number of key

issues and identifying references where the specific positions and supporting information can be

found. At a minimum, we believe this document should be made available to region and State

and local permitting staff. We also believe it would be beneficial to make the document

publically available on EPA’s website, possibly on the public input page of the Operating

Permits website, or elsewhere, as determined appropriate. 

Recommendation 3-4. In conjunction with EPA Regional Administrators, jointly develop a

strategy to ensure that EPA regional oversight and review of Title V permit adequacy

continues beyond the scheduled program evaluations. EPA regional review of permits should

include an analysis of clarity-related issues and appropriate inclusion of CAM and MACT

provisions in any permit renewals.
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Response: EPA Headquarters and the Regions agree that long-term oversight of title V

implementation is needed. Using the current four-year analysis of title V programs as a baseline,

OAR and the Regions will develop five-year plans that combine oversight with permit review

and audits to ensure continued proper implementation. This would include a written strategy and

annual reports to OAQPS.

Recommendation 3-5. In conjunction with EPA Regional Administrators, jointly coordinate

and streamline the review and response process for Title V public petitions to meet the

response requirements specified in the CAA.

Response: There are many case-specific reasons why permit responses can exceed 60 days. 

EPA Headquarters and the Regions will work internally to devise a procedure that will reduce

response times, will implement that procedure, and then will track the impact on shortening the

process. Permits are often moving targets, which can delay the response process.

Recommendation 4-1. Consider forming a stakeholder advisory group, possibly in conjunction

with the CAA Advisory Committee, to solicit input on needed Title V guidance and rules from

selected State and local agencies, and industries or industry associations, environmental

groups and other interested stakeholders.

Response: EPA agrees with the recommendation. A stakeholder group has been formed. The

stated purpose of the Task Force on Title V Implementation Experience is to “report to the

[Clean Air Act Advisory] committee on the experiences of stakeholders who have been working

in the title V permitting arena. The report should reflect the perspectives of all the stakeholder

groups, and should reflect an effort to answer two questions: (1) How well is the title V program

performing and (2) What elements of the program are working well/poorly?” The Task Force

may also make recommendations to EPA based on its findings.

Recommendation 4-2. Establish and implement an EPA-wide database to track improvements

made in Title V permits by permitting authorities.

Response: EPA Headquarters and the Regions disagree with this recommendation. The purpose

of a permit-improvement database is not clear from the OIG report. Ninety-four percent of the

title V sources nationally already have received their permits. Most improvements have already

happened, due to comments and corrections from permittees, the public and EPA. We agree that

there is room for program improvement, but an EPA-wide database for tracking permit

improvements will not accomplish this. Future program audits, permit reviews, and the Title V

Task Force will help EPA identify areas that still need improvement.

OIG Response:

After further consideration, we removed this recommendation from the report. EPA

Headquarters and Regions agreement to continue long-term oversight of Title V implementation,

including permit reviews and comprehensive Title V program reviews, should provide sufficient

information to identify Title V areas still in need of improvement.
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Appendix G

Texas Response to Draft Report and OIG Evaluation

Using Incorporation by Reference (IBR):

TCEQ Response: OIG’s concerns with the use of IBR rest with the extent to which 

specific applicable requirements may be identified from the citations. 

In 6 of the 10 Texas permits reviewed, however, the applicable 

requirements were found to be “reasonably discernible” (i.e., the

regulatory citations were specific enough to provide identification of

the specifically applicable requirements). In general, for Texas’ SOP

Title V permits (both audit sample and permit population at large), the

exact citation of the applicable regulation is provided. In atypical

cases where the specific citation is not provided, permit holders are

required to provide this level of detail with their submittals of

compliance certification or deviation reports. 

The form, content and mechanism of GOP authorizations are approved

elements of the Texas Title V program. The use of IBR in GOP is

consistent with this approval. Sources authorized by GOP typically

have few emission units, and reviewing their requirements does not

require navigation of multiple (i.e., ‘76 to 108') pages of applicable

requirements tables. The review of these tables is also facilitated by an

index numbering system included in the design of the GOP. Although

the issued GOP authorization itself does not list actual emission units,

all emission units to be covered by the GOP must be listed in the

application. 

The suggested use of the narrative text alternative apparently does not 

consider the implications of this approach. Narrative text requirement

summaries would increase the volume of all permits in which it was

applied. For most of our SOP permits, the desired benefit of direct

access to applicable requirements would be negated by unmanageable

permit size that would result from using narrative text summaries. 

As OIG’s own findings about IBR indicate, this practice has been

litigated and upheld by the August 15, 2003 ruling from the United

States 5th Circuit Court of Appeals. The Court found that nothing in

the Federal Clean Air Act prohibits this practice; APD agrees with

OIG’s observation that IBR does not therefore violate any Title V

requirement. Additionally, EPA’s White Paper No.2 supports IBR. 

The white paper specifically describes the practice of citing and crossreferencing information in permits if the information is readily

available to the permitting agency and the public.
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OIG Response:

We agree that general operating permits are approved elements of the Texas Title V program. 

However, we found reviewing these permits to be challenging from an outside observer

standpoint. The Texas general operating permits for oil and gas sources we reviewed consisted

of between 76 and 108 pages of applicable requirements tables - all with extensive IBR. Even if

sources authorized by general operating permit have few emissions units, and can be identified

through an indexing system, a reviewer must engage in several extra steps in order to determine

what requirements a source is subject to. 

We acknowledge that incorporating narrative text in place of IBR would increase the volume of

the permits. However, in most cases, we do not believe that including narrative text results in

unmanageable permit size. The three other States we reviewed used narrative text to a

significant extent. In most cases, the use of narrative text helped provide context and increased

understanding of the source. We did not find that it hampered direct access to the applicable

requirements.

EPA’s White Paper No. 2 states that in general, information may be cited or cross-referenced if

the information is readily available to the permitting agency and the public. It also states that

the citations and references must be clear and unambiguous and enforceable from a practical

standpoint. As noted in our report, we do not dispute the legality of the practice of IBR. 

However, we do believe that the extensive use of IBR with little or no narrative description

negatively affects the clarity of the permit, particularly for the public. 

How Well Permits Reflected the Underlying Regulations:

TCEQ Response: Comparison of text summaries to underlying regulations is a

reasonable indicator of a permit’s fidelity to its regulatory basis, but

only for those permitting programs that use this approach. While we

generally agree with OIG’s observation (i.e., available narrative

showed no discrepancies from underlying regulations), we maintain

that the direct regulatory citations provided by IBR result in greater

overall fidelity between permits and their underlyling requirements

(i.e., much closer ‘matching’, with minimized possibility of restatement errors).

Using Permit Shields and Streamlining:

TCEQ Response: APD believes the use of its permit shield mechanism is sound, as

supported by OIG’s overall findings in this area. The exception that a

permit shield IBR citation did not provide sufficient information to

conclude whether the shield was appropriately applied , however, is

attributable to an administrative matter. At the time the subject permit

was issued, the permit shield citation and its keyword reference to the

subject emission unit (i.e., process heater) were consistent with the

applicable definition in the pertinent regulation (Ch. 117). Since the

permit was issued, however, Ch. 117 has changed. The permit shield

citation and keyword reference were not updated when the regulation

changed, and the location of the applicable definition in the regulation
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text is no longer consistent with the specific citation in the shield. 

When checking the regulatory text to which the citation refers, OIG

staff apparently consulted the current version of Ch. 117. In this

version, the same-numbered citation now holds the definition of

another concept, unrelated to process heaters. OIG concluded from

these observations that it was unable to determine whether the permit

shield was correctly applied to the subject emission unit. 

APD believes there is sufficient information provided by the permit

shield’s keyword reference and regulatory citation, and in the initial

and current definitions of “process heater”, with which to determine

that the permit shield is appropriately applied to the subject emission

unit. For consistency of practice and format with more recently issued

permits, and to eliminate the potential for the regulatory tracking

difficulties described above, APD will likely strike altogether the

specific permit shield regulatory citation when the permit is renewed

(in newer permits, only brief keyword references to the subject

emission unit and applicable requirements are provided in the ‘basis of

determination’ column of the permit shield summary).

OIG Response:

We revised the report and added a footnote to reflect the explanation provided above. 

Overall Permit Clarity:

TCEQ Response: As previously indicated (see response to “Use of IBR” findings), APD 

has considered this concern relative to those resulting from the use of 

narrative text summaries (i.e., permit volume). APD believes the IBR 

approach offers a better solution to our obligation to maximize 

access and fidelity to underlying regulatory requirements. 

Statements of Basis:

TCEQ Response: APD is in general agreement with this assessment (i.e., that SB’s are 

improved replacements for technical summaries. More specific 

comments on OIG’s SB observations in Section 5 are provided in that 

portion of the document). 

Provisions for Periodic Monitoring:

TCEQ Response: APD is in general agreement with this assessment.

Compliance Assurance Monitoring:

TCEQ Response: APD is in general agreement with this assessment.
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Gap-filling Underlying State/Federal Regulations:

TCEQ Response: APD is in general agreement with this assessment.

Surrogate Monitoring:

TCEQ Response: APD is in general agreement with this assessment.

Monitoring and Reporting Requirements:

TCEQ Response: We infer from the data in Table 2-6 that the sufficiency issues in the 7

indicated permits are those described in the foregoing text (i.e.,

monitoring, IBR, GOP). In rule changes effective December 2002,

APD committed to include periodic monitoring in permits issued after

this date, for those whose underlying state and federal requirements

did not otherwise require monitoring or specify monitoring

frequencies. Of the 4 audited permits that were issued after this date, 2

contain PM provisions and the other 2 specify monitoring

requirements as included in their applicable state and/or federal

regulations. 6 of the 10 audited permits were issued prior to the

commitment date for inclusion of PM. The required updates will be

evaluated and implemented when the permits are renewed (SOP), or

when the overall GOP is revised (GOP).

The use of IBR identifies requirements as monitoring or reporting in

the applicable requirements summary. The use of GOP, as well as the

form and content of this mechanism, are approved elements of our

Title V program; the use of IBR in both SOP and GOP is consistent

with this approval. 

Annual Compliance Certifications:

TCEQ Response: OIG observes that “...differences...were related to... whether the

facilities certified each permit term and condition or just reported

deviations." This language might suggest that Texas requires only

reporting of deviations. While the Texas program does not require

"line-by-line certification" of terms and conditions, nor has it made

commitments to this effect, it clearly references the permit in question. 

Also, the responsible official clearly states the applicants are certifying

to all terms and conditions of the permit with the exception of the

deviations reported. We suggest re-wording the referenced sentence to

avoid misunderstanding and/or mis-statement. 

OIG Response:

We modified the wording on page 31 in the report to “The differences we found related to

whether the facilities certified compliance in the ACC with each permit term and condition or

whether the facilities simply certified compliance with the entire permit except for any identified

deviations.”
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Practical Enforceability:

TCEQ Response: In rule changes effective December 2002, APD committed to include

periodic monitoring in permits issued after this date, for those whose

underlying state and federal requirements did not otherwise require Of

the 4 audited permits that were issued after this date, 2 contain PM

provisions and the other 2 specify the monitoring requirements of their

applicable state and/or federal regulations. monitoring or specify

monitoring frequencies. 6 of the 10 audited permits were issued prior

to the commitment date for inclusion of PM; required updates will be

evaluated and implemented when the permits are renewed (SOP), or

when the overall GOP is revised (GOP). 

GOP form and content are approved elements of the Texas program;

the use of IBR in both SOP and GOP is consistent with this approval.

Although the issued GOP authorization itself does not list actual

emission units, the enforceable application for this authorization must

include all emission units to be covered by the GOP. 

Notices of Deficiency:

TCEQ Response: In December 2003, TCEQ amended three of the newly numbered

sections of its emissions events rules to address concerns raised by

EPA in the NOD. These three sections have an expiration date of June

30, 2005. These rule changes were submitted to EPA as revisions to

the Texas SIP. EPA has given verbal indications it will grant limited

approval for all of these rule changes, and approval is expected in

January 2005. 

Commitment Letters:

TCEQ Response: The substance of our response to the ACC issues referenced in this

section is provided in the responses to OIG’s ACC findings of 

Sections 2 and 5, and is not re-stated here. Regarding SB issues,

however, OIG’s reference to “Chapter 2" is vague and potentially

confusing, especially when considering that “Chapter 2" was not

provided for review. Follow-up discussions with OIG staff indicated

the nature of these SB issues is related to consistency of SB content

across states and EPA regions, and the extent to which the SB

contained what OIG considers key elements. These issues are not

exclusively pertinent to Texas. It would be helpful for these references

to be clarified with specific identification and discussion of these

issues in this section, and for Texas to have the opportunity to review

and comment on this discussion.
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Review of Pre- and Post-Title V Permits:

TCEQ Response: Since rules governing NSR permitting are part of the Texas SIP, NSR

permit terms and conditions are fully enforceable. Further, APD

believes its NSR permit conditions contain adequate provisions for

periodic monitoring. In addition to technical summaries, and as

supported by OIG’s Table 4-3 indicating availability of pre-Title V

authorizations for all audited Title V permits, APD provided all

available emission rate tables and special conditions of the current

NSR authorizations associated with the audited permits. 

OIG Response:

We revised the report and added a footnote to Table 4-3 explaining that some pre-Title V permits

reviewed were NSR permits, and thus were federally enforceable. The numbers in the Table

columns still only reflect whether or not federal enforceability was explicitly stated on the face of

the permit. We deleted a footnote stating that Texas only provided technical summaries for the

pre-Title V permits to reflect that emissions rate tables and special conditions were also

provided.

Observations on Statements of Basis:

TECQ Response: APD is in general agreement with this assessment. As described in

previous responses (Section 2 - Monitoring and Reporting; Practical

Enforceability), 2 of the 4 audited permits issued after December 2002

did not require addition of PM provisions. OIG’s indirect observation

in this section (that 2 of the 4 SB’s reviewed did not provide the basis

of the PM decision) refers to the same 2 permits. The SB for these

permits did not include an explanation of the PM decision precisely for

the reason that PM was not required in these permits. 

Observations on Annual Compliance Certifications:

TCEQ Response: OIG observes that Texas has addressed the “material information”

issue as committed, but also immediately comments on the substance

of the ACC (completeness of the certification, as indicated with lineby-line certification vs. certification by exception). The organization of

these comments suggests that Texas also committed to change its

method of certification and has yet to comply with this commitment. 

Texas has in fact made no such commitment. The language of these

observations should clarify that the subject commitment was to

resolution of the ‘material information’ matter, separate from how

certification is handled.

OIG Response:

No changes were made in our report as we do not believe the report indicated that Texas agreed

to change their ACCs to require facilities to complete their ACCs with a line by line

certification.
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Appendix H

Ohio Response to Draft Report and OIG Evaluation

January 26, 2005 CERTIFIED MAIL

U.S. EPA

Attn: J Rick Beusse, Director for Program Evaluation, Air Quality Issues

Office of Inspector General, N283-01 

Research Triangle Park, NC 27711

RE: Response to Excerpts from Draft Evaluation Report on Title V, Assignment No. 2003-

000339

Dear Mr. Beusse:

Thank you for the opportunity to review and comment on the Ohio portions of the draft

evaluation report on Title V. Ohio EPA believes that a thorough review of the federal Title V

permit program will lead to improvements in implementing a complex program and will provide

increased national consistency. We look forward to participating in any effort to make the Title V

program more efficient and effective. We also appreciated meeting with your review team and

believe they gained valuable information concerning the experience that Ohio brings to issues

associated with implementing 40 CFR Part 70 requirements. Following is a summary of our

comments based on our limited knowledge of the full program evaluation conclusions. These

comments are based on our review of the redacted draft report you supplied for comment.

Using Incorporation By Reference

Ohio EPA has no comments.

How Well Permits Reflected the Underlying Regulations 

As with any large, complex program, the initial permits may not have contained the amount of

information that appeared in later permits. Ohio EPA appreciates recognition that

implementation issues can be worked out in a cooperative fashion with the U.S. EPA regional

staff. Ohio is following through with the commitment to cite underlying regulations as part of

any permit modification or renewal.

Using Permit Shields and Streamlining 

Ohio EPA is not aware of any Part 70 provision requiring side-by-side comparisons of

requirements to justify which requirement is selected as the most stringent in cases where

streamlining is employed. SIP approved, rule-based requirements and SIP approved state best

available technology requirements are good examples of where “streamlining” is used in Ohio

Title V permits. Ohio EPA does not believe there is a need to provide detailed side-by-side

comparisons of the requirements in the Statement of Basis (SB) because both requirements are

part of the federally approved SIP for Ohio. Thus, the basis for each requirement has already

undergone federal and public review, and needs no further justification regarding the selection of

the more stringent requirement. Further, there is no national guidance concerning the level or
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length of detail required in the SB; Ohio EPA provides additional comment on this related issue

below. Nevertheless, Ohio EPA does identify each requirement in the Title V permit that is more

stringent than the corresponding PTI term or SIP rule limit. This is indicated in the permit by

language such as “...The minimum overall control efficiency specified by this rule is less

stringent than the minimum overall control efficiency established pursuant to OAC rule 3745-31-

05(A)(3).” This is generally referred to as “subsuming” rather than “streamlining” in Ohio. 

OIG Response:

We agree that there is no Part 70 provision requiring side-by-side comparisons to justify

streamlining. However, this useful practice is recommended in EPA’s White Paper #2 and in

Region 3's Title V Permit Writers Tips. 

Overall Permit Clarity

Ohio respectfully disagrees with the conclusion that Ohio permits lack clarity or that the use of

the phrase “upon request” or “if required” makes it unclear what conditions would trigger a

source to be tested. To state every condition which could trigger the requirement for a source to

undergo emission testing in an operating permit is unreasonable. As U.S. EPA is aware, most

determinations for these source test requirements are made on a site-specific basis. U.S. EPA has

not provided clear guidance or rule-based requirements concerning on-going testing frequency.

For example, most, if not all NSPS and NESHAPS categories only specify an initial compliance

determination. If it is U.S. EPA’s desire to have certain types of operations tested on specified

frequencies, U.S. EPA should promulgate regulations to ensure that goal is achieved. Otherwise,

deference needs to be given to the permitting authority to determine when and if emission testing

should be required on a site and source-specific basis.

OIG Response:

We understand Ohio’s position that stating every condition which could trigger emissions testing

may be unreasonable. We also acknowledge that, in the absence of clear guidelines on testing

frequency from EPA, State and local permitting authorities are left to make individual decisions. 

However, from the perspective of an outside reviewer, particularly members of the public, such

language can appear vague and leave the reviewer unclear as to what would trigger source

testing.

Statement of Basis (SBs)

As stated in the draft report, Ohio EPA does question the overall efficacy of SBs, but we

continue to work with U.S. EPA on issues associated with the level of content and detail needed

in a SB. Ohio EPA believes that every Title V permit issued by the Agency, and every associated

SB, meets the requirements of the Part 70 rules. The Clean Air Act (including the preamble to

the Act) provides no details regarding what constitutes an adequate accounting of the legal and

factual basis for Title V permit terms and conditions. Further, the Part 70 SB program element

provides virtually no indication of the required focus, elements, or structure of the SB. 

The focus of this section of the draft report is a letter from U.S. EPA Region 5 that describes

what they believe should be in a SB. However, the list produced by the Region does not have a

regulatory basis, and contains the information that Region V would like to see. Although Ohio

EPA recognizes that more information can be helpful, there needs to be a recognition that
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permitting authorities have limited resources and the focus of the effort needs to be in the

issuance of quality permits.

OIG Response:

We noted in the report that EPA has not issued a nationwide guidance document or a rule that

explains what constitutes an adequate SB. We have made a recommendation that EPA issue

guidance or a rule that specifies the elements of an adequate SB. 

Monitoring Issues Identified In Reviewing State Permits (periodic monitoring; gap-filling;

surrogate monitoring; and clarity of many monitoring and reporting requirements to

determine compliance)

Provisions for Periodic Monitoring

Ohio EPA does not believe that commonly understood or well established permitting

practices need to be explained or detailed in either the permit or SB. For example, not

requiring monitoring for PM for inherently clean fuel burning operations should not have

to be explained in the permit or in the SB because the minor emissions associated with

such operations are widely and commonly understood by industry and the regulatory

community. One could question whether the public could readily ascertain why

monitoring is not required in such an instance, and conclude that explanation should be

provided. However, nothing in Part 70 or the Act requires permitting authorities to detail

the minutia of every decision the permitting authority makes in developing permit

requirements, especially those decisions that are consistent, and widely understood and

accepted in the environmental field. Further discussion of this issue is detailed below in

the OIG review SB discussion.

Gap-filling

Ohio EPA has no comments regarding gap-filling.

Surrogate Monitoring

Concerning surrogate monitoring, Ohio EPA does not have a ranking system for

surrogate monitoring. Ohio EPA is concerned that the list of types of surrogate

monitoring in Table 2-5 in conjunction with the preceding paragraph would lead a reader

to believe that the list is the ranking mentioned in the lead-in.

OIG Response:

Chapter 2 of our report cites a November 2001 Region 5 memorandum to Ohio EPA. We

include Region 5's statement that Ohio EPA ranks emissions factors, not surrogate monitoring. 

We discuss the use of emissions factors as one type of surrogate monitoring or compliance

determination. Table 2-5 lists types of surrogate monitoring or compliance determination we

identified in the permits we reviewed in four States. We do not believe the table would lead a

reader to believe that the examples under Ohio comprise a ranking system. 

Many Monitoring and Reporting Requirements To Determine Compliance

Ohio EPA has no comments regarding reporting requirements.
105

Annual Compliance Certification

Ohio EPA has no comments regarding Annual Compliance Certifications.

Practical Enforceability

Ohio EPA is concerned about the assertion that Ohio Title V permit terms are not practically

enforceable, particularly in light of the lack of U.S. EPA follow-through in providing regulatory

enforceability for certain types of on-going compliance demonstration tools. Especially

disappointing is the continued failure of reviewers to recognize how certified continuous opacity

monitoring systems can be used to help ensure ongoing compliance with visible particulate

emission limitations. There continues to be a push for traditional Method 9 observations at some

set frequency even though the data from a certified continuous opacity monitoring system does

not indicate a compliance problem and, therefore, the need for additional Method 9 observations. 

U.S. EPA should step back and consider the rationale for and benefits of the continuous opacity

monitoring systems required by 40 CFR Part 51, Appendix P, 40 CFR Part 75, and the NSPS

provisions if they are going to continue to require the states to conduct Method 9 observations for

demonstrating compliance with most visible particulate emission limitations. In other instances

cited in Table 2-9, Ohio EPA uses manufacturers’ specifications that are not developed or

provided by the manufacturer on a site-specific basis. To require the permitting authority to

determine a precise minimum frequency would be resource prohibitive. Compliance source

testing in conjunction with deviation reporting review by the permitting authority should provide

reasonable assurance of the practical enforceability of “manufacturers’ specifications.”

OIG Response:

We do not intend to assert in our report that Ohio Title V permit terms are not practically

enforceable. Our discussion of practical enforceability in Chapter 2 cites potential problems

and concerns that we believe could arise from the standpoint of an outside reviewer. As noted in

our report, officials in 8 out of 10 EPA regions told us that problems in some permits potentially

affect practical enforceability, and they identified problems in a number of permitting

authorities, including Ohio’s use of vague permit language (see Table 2-8). 

NOD and Commitment Letter Issues

Ohio EPA was the first state in Region 5 to complete the initial round of Title V permits. This

significant achievement was attained in spite of federal audits of the air program, challenges by

environmental organizations of the Title V program implementation in Ohio on the federal level,

and many appeals of the individual permits by industry at the state level.

Regarding SB guidance. Ohio EPA has a standing committee of Ohio EPA Central Office,

District Office, and local air agency permit and enforcement representatives that meet on a bimonthly basis (the P&E Committee). The required elements of the SB have been discussed in

P&E meetings. Additionally, the Ohio version of the SB was revised in 2003 to include detailed

instructions regarding the elements to be completed in the SB, including considerations that must

be taken into account by permit writers when developing the SB for a given permit. The SB

instructions were discussed during P&E meetings. Ohio considers these activities to meet the

commitment by the Director to train permit writers on SB. Ohio EPA does not agree with the

conclusion that these activities does not constitute “guidance” as “guidance” can take many

forms. Please see below for responses and/or comments regarding the OIG review “identified

deficiencies” in Ohio’s SBs.
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OIG Response:

As stated in our report, we believe that Ohio SBs could be further improved by including certain

key elements considered advisable in the December 20, 2001, Region 5 memorandum. We

recognize that the Region 5 memorandum is not nationwide guidance or a rule. As noted above,

we have recommended that EPA provide nationwide guidance or a rule which specifies what

EPA considers to be sufficient SB content. 

Results of OIG Review of Pre and Post Title V Permits

Ohio EPA is concerned that the message conveyed by a zero in item 5 of table 4-3 in this section

of the OIG report would lead a reader to conclude that the Ohio EPA does not adequately address

public participation. The fact that there have not been any objections by the public to an Ohio

permit does not have a negative reflection on public participation. Ohio EPA provides public

participation and information regarding appeal provisions for every permit in the cover letter

accompanying the permit. If a given permit was issued draft, a public notice is sent to the

newspaper of general circulation in the county where the facility is located. This notice provides

all instructions and contacts associated with public participation in the permitting process.

Additionally, the Ohio EPA produces a publication titled the ‘Weekly Review’ that identifies all

Agency actions taken each week. This publication also provides instructions regarding public

participation. 

OIG Response:

Table 4-3 reflects whether or not specific elements, such as provisions for public participation,

were explicitly included in pre-Title V permits. It is intended, in part, to illustrate the

improvements that Title V has brought about over the old operating permits. This table is not a

comment on current public participation practices in the States. The zero in item 5 which Ohio

refers to is not related to current Title V permits or public participation efforts. 

Observations on Statement of Basis and Annual Compliance Certifications

Ohio EPA is concerned that the draft OIG report would lead a reader to believe that the

December 20, 2001 EPA memorandum includes a list of required elements for each SB. The

memorandum is a enumeration of desired elements from one regional office of U.S. EPA. There

is no national guidance, policy, or preamble documentation in either the Clean Air Act or

proposed and final versions of Part 70 supporting the SB elements listed in the EPA

memorandum. Indicating in the OIG review that Ohio EPA did not include “...several key

elements identified as necessary in U.S. EPA Region 5's 2001 memorandum.” provides no

constructive advancement regarding the SB issue. Further, indicating that “none of the SBs 

[reviewed for Ohio] provided an adequate description of the facility, the manufacturing process

and the attainment status of the area where the facility is located.” has no constructive value.

Inclusion of such statements in the OIG review, absent federal rules on minimum elements of the

SB, will only serve to fuel a mis-perception that Ohio SBs do not meet the minimum Part 70 and

Clean Air Act requirement of providing the legal and factual basis for each permit term to the

EPA and the public. 

The requirement for permitting Agencies to provide a SB is a product of EPA requiring

permitting authorities to identify the legal and factual basis for each permit term (see 40 CFR

70.7(a)(5). There is virtually no discussion or explanation of the required contents of an
107

“adequate” SB in either the draft or final preambles to Part 70. Ohio EPA respectfully requests

that all language in the OIG report that would lead a reader to conclude that Ohio EPA SBs do

not meet the minimum requirements of Part 70 be removed. Notwithstanding, Ohio EPA

appreciates that the OIG report does recognize that Ohio EPA has made changes to the SB in

response to input for U.S. EPA Region 5.

Additionally, Ohio EPA is not aware of ANY instance where a citizen has relied upon the SB to

understand, let alone, comment on any Ohio Title V permit. The vast majority of comments

received in the first round of Title V permits processed by Ohio EPA were made by U.S. EPA

staff or environmental organizations; both of which have a reasonable knowledge of issues

associated with air pollution control permitting. Further, if a citizen were to review Ohio EPA

permits and the associated SBs, and they were to still have confusion or questions regarding

either document, Ohio EPA or local air agency staff are available to further explain the

documents, the source, or any other issue related to a given permit or facility. Taking permitting

authority staff time out to address specific instances of citizen confusion or questions is a much

more resource effective approach than developing voluminous SBs for an extremely limited

audience; particularly in light of the lack of federal rules, guidance, or policy with respect to SBs.

The content of Ohio EPA’s SBs meet the legal requirements of Part 70. The format and content

of our SBs have been approved by U.S. EPA Region 5 and there has been no further national

guidance from U.S. EPA on this issue. Furthermore, it should be noted that the SBs are not

necessary to prepare a Title V permit. The SB is an informational tool only that is prepared for

U.S. EPA and the general public. In processing close to 700 Title V permits, we received less

than 10 comments from citizens concerning SBs. To ask an agency to spend more time to expand

the content of the SB, would force valuable resources to be redirected from permit preparation to

SB preparation. We fail to see any positive benefit from such a reallocation of resources.

OIG Response:

Please note our responses on SBs provided above. We agree that an EPA nationwide guidance

document or rule has not been issued that would provide minimum SB requirements and we

have, therefore, recommended that EPA provide such guidance or rule. In our report, we

identified missing elements in Ohio SBs that were recommended in Region 5's guidance

document. We also identified missing SB elements for three other States and noted that there are

inconsistencies among the SBs prepared by each State. We believe that key content of SBs should

be consistent nationwide. We disagree with Ohio EPA on the value of Sbs, i. e., we believe that

they are very useful, necessary tools which aid in the understanding of Title V permits. In our

review of permits among three of the four States, the accompanying SBs were very effective aids

in our understanding and review of the permits. On page 75 of the report we noted Ohio EPA’s

disagreement over SBs relative to the issue concerning the assertion of reallocation of

resources. We believe adequate SBs are necessary and that the resources necessary to construct

these SBs are justified. Further, the other three states’ permit programs we reviewed with more

comprehensive SBs did not provide any indication of any significant resource reallocation

experiences, nor did we receive information that any other permitting authority had such

concerns. 

In summary, Ohio EPA appreciates the opportunity to submit comments on the draft OIG Title

V evaluation report. We hope that the report is used by U.S. EPA and permitting authorities to

refine and enhance implementation of the Title V permit program, and assists the public in
108

understanding the complex issues associated with implementing this very important federal

program.

Sincerely,

Bob Hodanbosi, Chief

Division of Air Pollution Control

cc: Mike Hopkins, DAPC/Permitting

Jim Orlemann, DAPC/Enforcement

Mike Ahern, DAPC/PIDM

Jeanne Mallett, OEPA Legal

Sam Portanova, U.S. EPA/Region 5

Genevieve Damico, U.S. EPA/Region 5
109

Appendix I

Distribution

EPA Headquarters 

Acting Administrator (1101A)

Agency Followup Official (the CFO) (2710A)

Agency Followup Coordinator (2724A)

General Counsel, Office of General Counsel (4010A)

Associate Administrator for Congressional and Intergovernmental Relations (1301A)

Associate Administrator for Public Affairs (1101A)

Assistant Administrator for Air and Radiation (6101A)

Audit Followup Coordinator, Office of Air and Radiation (6102A)

Acting Assistant Administrator for Enforcement and Compliance Assurance (2201A)

Audit Followup Coordinator, Office of Enforcement and Compliance Assurance (2201A)

Director, Office of Regional Operations (1108A) 

Director, Office of Air Quality Planning and Standards (C404-04)

Deputy Director, Office of Air Quality Planning and Standards (C404-04)

Audit Liaison, Office of Air Quality Planning and Standards (C404-2)

Acting Deputy Assistant Administrator for Science (8105R)

Inspector General (2410)

EPA Regions

Regional Administrators

Regional Air Program Directors

Regional Audit Followup Coordinators

Regional Public Affairs Offices 

State Permitting Authorities

New York

North Carolina

Ohio

Texas