### OFFICE OF INSPEC TOR GENERAL

Catalyst for Improving the Environment



### Evaluation Report



# Substant ial Changes Needed i n Imple mentati on and Overs ight of Title V P erm its If Progra m Go als A re To Be Fully Realiz ed
Report No. 2005-P-00010
March 9, 2005Report C ontributor s: John Bishop Geoff Pierce Sarah Tu rpin Andrew Lavenbur

g Steve Schanamann Abbreviat

ions

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 Gene ral Oper ating Pe rmit IBR Incorporation by Reference IEU Insig nifican t Emissions U

nit MACT Maxi mum A chiev able C ontro l Tech nolo gy MOA Memorandum of Agreement NAAQS National Ambient Air Quality Standar ds NOD Notice of Deficiency NO x 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 Assur ance OIG Office of Inspe ctor General PM Particulate Matter SB Statemen t of Basi s SIC Standard Industrial Classification SIP State Implementation Plan SO 2 Sulfur Dioxide VOC Volatile Organic Compound

Cover Photo : Cover and pag e 3 photo of EPA ’s Brochure on the A ir Pollution Operating

Permit Prog

ram Update, Key Feature s and B enefits, EPA/4 51/K- 98/002 , Feb. 1998 ( photo by S.C . Delan

ey/EPA). A ccordin

g to EPA’s photo caption, “ The operating permit p rogram covers most significant sources of air po llution in the United States. The more complex sources , such as large petro leum refineries and chem ical production plants, can have hun dreds or even thousan ds of emission points.” Source: http://www.epa.g ov/air/oaqps/perm itupdate/U.S. Env ironmental Protectio n Agency Office of Inspector G eneral 

# At a Glance 2005-P-00010 March 9, 2 005

Catalyst f or Improving th e Environment

Why We D id This Review We sought to determ

ine whether (1) selected Title V permi ts conta ined ad equate provisions consistent w

ith key Clean Air Act (CAA) requirem ents, (2 ) EPA’s oversight and guidance contributed to improvements in Title V implemen

tation, and (3) Title V had achieved its goals of im

proving the implementation and enforcement of the CAA. Background
In 1990 C ongress enacted Federal clean air perm

itting requirem ents des igned

to reduc e violat ions an d improve enforcement of air pollution laws for the largest s ources of air poll ution. Known a s Title V, this provision requires that all major stationary so

urces of air poll utants o btain a permi

t to operate. More than 1 7,000 sources are subject to Title V permit requirem

ents.

For further

information , contact our Office of Congressional and Public Liaison at (20 2) 566-2391. Substantia l Changes Needed i n Imple mentati

on and Over si ght of Ti tl e V Pe rmi ts If

Pro gra m Goal

s Ar e To Be Fully Realized

What We Found Our analysis identified concerns with fiv e key aspects of Title V permits, including (1) perm

it clarity, (2) statem

ents of basis, (3) m

onitoring provisio

ns, (4) annual complia nce cer tifi catio ns, and (5) pra ctica l enfor ceabi lity. Col lecti vely, these problems can hamper the ability of EPA, State an

d local regulators, an

d the public to understand wh

at requirements sourc es are subject to, how they will be
measu red, an d ultim ately to hold

source s accou

ntable f or me eting applica

ble air quality requirem

ents. Factors such as extensive use of inc orporation by reference , failure to fully cite applica ble regulations, com

plex permit form

at, and lack of detai l in sou rce re quire ments fo r test ing, monit oring, a nd repo rting ha d a negat ive impact on perm

it clarity. Also, the practical enforceability o f some perm its was limited by v

ague permit language and insufficient monitoring

provisions. Fu

rther EPA guidance is needed in each of these Title V permitting p rogram elem

ents.
EPA’ s over sigh t and guida nce o f Ti tle V act ivit ies have r esul ted in so me improvem

ents in Title V program s; however, areas of further improv ement remain. Many

Title V programs have improv ed as a result of EPA ’s issuing formal notices of d

eficiency, and throu

gh EPA’s efforts to obtain comm itment letters from selected S tate and local perm itting authorities. Ho

wever, som

e EPA regions have been slow in issuing program evaluation reports for p ermitting authori ties wit hin thei r respec tive re gions , and have not respon ded to p ublic petitions against Title V perm its in a timely

manner. F or example, of the 31 Sta te and local agency

Title V evaluations com

pleted, EPA regions have only reported
on 14 agencies. S everal stakeholde rs expressed a need for increased EPA guida nce and overs ight. Desp ite imple menta tio n pro ble ms, th e Ti tle V pro gram ha s res ult ed in some significant benefits. The in clusion of all relevant CAA requirem ents in one docum ent has enabled

stake holders to obta in the i nformation ne eded to understand the applicable req uirements for m

ajor emitting sources, and to express their concerns. Anecd

otal evidence suggests that perm itting authorities and industr y sou rces hav e improved

comm unicatio ns, tha t emis sions in

vento ries are bette r, that complia nce has been ac hieved mor e quickl y, and tha t emissi ons have been re duced d

ue to th e annua

l requir emen t for ow ners or operators to ce

rtify compliance with all applicable CAA req uirements.
To view the ful l report, click on the f

ollowing link: www.epa.gov/oig/report s/2005/ 20050309-2005-P-

00010.pdf What We Recommend

We made several recomm endations for EPA to, among other things, reduce the factors that negatively impact p ermit clarity, im prove national Title V g

uidance, actively identify

monitoring deficiencies in state imp lementation plans, and devel op a co mprehensive Title V ov

ersigh t strateg y. The Agen cy ag reed wi th several of our recom

mendations reg arding issuing draft rules and imp roving EPA oversight, bu

t disagreed with sev

eral others related to issuing Title V guidance.UNI TED STA TES ENV IRONMENTA L PROTECTI ON AGENCY W ASHINGT ON, D.C. 20460

OFFICE OF I NSPECTOR GENERAL
March 9, 2005

MEMORANDUM

SUBJECT: Final Ev aluation Report: Substantial Changes Needed in I mplementation and Oversight of Title V Permits If Program Goa

ls Are To Be Fully

Realized Report No. 2005-P-00010

FROM: Kwai-Cheung Chan /s/

Assistant Inspector Genera l for Program Evaluation

TO: Jeffrey R. Holmstead

Assistant Administrator for Air and Radiation

Attached is our final report rega rding implementation and oversight of the Clean Air Act’s Title V Operating Permits Program. This report contains finding s regarding EPA’s need to issue na tional guidance related to Title V permitting ac tivities and to improve oversight of S tate and local permitting programs. Also, the report contains cor rective actions the Office of I nspector General (OI G) recommends. Th

is repor t repre sents the

opinion of

the OI G, and the

finding s contained in this report do not ne cessar ily r eprese nt the fina

l EPA position. Final d

etermina tion on matt

ers in this report will be made by EPA mana gers in accordance w

ith established procedures. EPA’s Office of Air and Radiation provided us with a response on F ebruary 7, 2005, that consolidated its comments to the draft report with those from the Office of Enf orcement and Complianc e Assura

nce and EPA’s re gional o ffices. We include d EPA’s consolidate d respons e in its entirety as Appendix F.
Action Re quired

In accorda

nce with EPA Manual 2750, as the action official, y ou are required to provide this office with a wr itten res ponse with

in 90 day s of the f inal rep ort date . Since thi s report deals pr imarily with the EP A Offic e of Air a nd Radiati on’s Title

V Progr am, the As sistant Ad

ministrator for Air and Radia tion was de signate d the prima ry action of ficial. A s such, he

should tak

e the lea d in coordinating the Agency ’s response. The response should address all rec ommendations. For the corrective actions planned but not completed by the response date, please describe the a ctions that are ongoing and provide a timetable for completion. If y ou do not concur with a recommendation,-2-

please provide alternative actions addressing the findings reported. We appreciate the e fforts of EPA offic ials and s taff, a s well as e xternal sta

keholder s, in work ing with u s to devel op this re port. For y our conv enience , this rep ort will be availab le at http://www .epa.g ov/oig

. If y ou or your staff

have any questions regarding this report, please contact me at (202) 566-0827, Rick Beusse, Director for Progr am 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 Assura nce Robert W. Varney EPA Region 1 - Regional Administrator Kathleen Callahan EPA Region 2 - Acting Regional Administrator Donald S. We lsh 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 Rob erts EPA Region 8 - Regional Administrator Wayne Nastri EPA Region 9 - Regional Administrator Ron Kreizenbeck EPA Region 10 - Acting Regional Administratori



# Table of C ontents

At a Glance 

## Chapters

1 Introduction

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

Purpose

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

.......... .......... .......... .......... ....... 1 Scop e an d M etho dol ogy

.......... .......... .......... ....... 4 Results in Brief

.......... .......... .......... .......... ..... 5


### 2 Improvements Need ed in Clarity and Completeness of Title V Permits if Goals A re To Be Re alized

.......... 8
Improv ements Neede d in P ermit C larit y

.......... .......... ...... 8 Some S tatemen ts of Ba sis M issin g Key Eleme nts

.......... ....... 16 Monitori ng Provisi ons in Permi ts Varied, Ad equacy Questio ned

...... 18 Improvements Nee ded in Ann ual Compli ance Certificati on Content

... 29 Practi cal E nforceab ilit

y Con cerns w ith So me Permi ts

.......... .... 32 Conclusio ns

.......... .......... .......... .......... ...... 36 Recommendations

.......... .......... .......... .......... . 37 Agency Comments

and OIG Eval uation . . . .

. . . . . . . . . . . . . . . . . . . . . . 38


### 3 EPA’s Oversight and Guidance Have Improved State Title V

Progra ms, Bu t Gaps Remain

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

...... 39 EPA Respon siveness t o Public Pet itions Nee ds to Im prove

......... 42 Most NOD a nd Commitment Letter Issues Have Been Resol ved

...... 44 Stakeholders Iden tified Needs for Titl e V Guidance

.......... ...... 48 Conclusio ns

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

.......... .......... .......... .......... . 51 Agency Comments

and OIG Eval uation . . . .

. . . . . . . . . . . . . . . . . . . . . . 52ii



### 4 Despi te Som e Prob lems, T itle V H as Gen erally Improved Imp lementation o f the Clean Air A ct

....... 53
Expected B enefits Of Title V

.......... .......... .......... ... 54 Most Stakehol ders Cited A necdotal Be nefits of Title V

.......... ... 54 Improv ed Ai r Poll ution Contro l Progr ams

.......... .......... .... 56 Improved Enforcement and Faster Co mpliance

.......... ......... 58 Conso lida tion o f Requir ements and Re gulato ry Ce rtaint y

.......... . 60 Benefits to Publ ic Partici pation

.......... .......... .......... . . 61 EPA and Ind ustry View s of Title V Di ffered

.......... .......... . . 62 Resul ts of OIG R eview of P re- and Post-Ti tle V Permits

.......... . . 63 Conclusio ns

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

.......... .......... .......... .......... . 65 Agency Comments

and OIG Eval uation . . . .

. . . . . . . . . . . . . . . . . . . . . . 65



## A ppendices

A Definition of Maj or Stationary Source

.......... .......... ........ 66

B Details on Sco pe and Methodo logy

.......... .......... .......... 68

C Observations on Statements o f Basis and A nnual Complianc e Certifications In F our States Reviewed

.......... .......... ....... 74

D EPA , State, and Lo cal A gency Roles and R

esponsibilities in Implementing Title V

.......... .......... .......... .......... . . 78

E Status of EPA

Regional Ev

aluations and Notices of De ficiencies

...... 80

F Consolidated A gency Response to Draft Report an d OIG Evaluation . . . . 81

G Texas Re sponse to Dr aft Report and OIG Evaluation

. . . . . . . . . . . . . . . . . 96

H Ohio Response to Draft Report and OIG Evalua tion . . . . . . . . . . . . . . . . . 102

I Distribution . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 91 

# Chapter 1 Introduction
Purpose The Office of I nspector General (OI G) initiated this evaluation to assess the extent to which Cl ean Air Act (CAA)Title V ope rating permits ha

ve adeq uately 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 oper ating permits to major air pollut ion sourc es throug

hout the c ountry, permitti ng these major sou

rces to operate within applicable CAA requirements. Major source s, 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 de tailed definition of major source.) A properly implemented Title V program can not only provide assura

nce of major source compliance, but also reduc e air pollution
em is si on s, in cr ea se re gu la to ry c er ta in ty, an d i mp ro ve ai r q ua li ty. Within the last several years, potentially significant pr oblems related to the adequacy of CAA Title V operating permits have been identified a s a result of lawsuits, public petitions, and other sources. Concerns have been raise d regarding the over all clar ity a nd comple

teness of Title V pe

rmits, and that sele cted per

mits were lacking relevant a

ir quality protections; deficie nt in emissions monitoring requirements; had insufficient provisions for public participation, notification, and oversight; and contained inadequate enfor cement provisions. At the same time, some indus try

repres entative s and othe

rs have q uestione d whethe

r Title V i s achieving its goals. As such, the objectives of our e valuation were to determine whether:

• selected Title V permits were clear a nd contained adequate provisions consiste nt with key

Title V re quireme

nts.

• EPA’s Title V oversight and guidance provide d to State permitting authorities contributed to improving the implementation of Title V.

• the Title V program has achieved its cong ressionally-manda

ted goals of improving the implementation and enforcement of the CAA. 

### Background

Importance of Title V Permits

One of th e primar

y pu rposes of Title V pe

rmits is to r

educe violations o f air pollution r

egulat ions and im

prove the enforc ement of

those re gulations. Prior t o passage of the CAA Amendments of 1990, major source s of air pollution were not2 required to have federally enforceable operating pe rmits. The requirements for these sou rces we re ofte n scatte red amon g multiple

document s, making

it diffic ult to determine compliance and therefore diff icult to provide effective enforcement of CAA regulations. Although some States did implement their own operating permit pr ograms to regu late major source s, others did not. Ev en for those with permit pr ograms , difficu

lties sometimes aro se with F ederal enforc ement of

State regula tions.

The Title V opera ting per mit requir ement pr ovides for a fede

rally -enfor ceable document that contains all air quality r equirements for an individual major source. Though T itle V doe s not generally impose ne

w air qua lity control r equirements, it does require permits to contain monitoring, reporting, a nd record-keeping provision s to ensur

e source compliance with existing CAA regula tions. Be cause these pe rmits are federa lly e nforce able, Tit

le V perm its provide

Feder al and Sta te 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. Cong ress’ main goal in establishing the Title V program was to achieve a br oad-based tool to aid in implementing the CAA effec tively

and enha ncing e nforce ment. Within

this over arching goal, Congress intended the Title V

progra m to reali ze nine mor

e specif ic goal s, as follows:
1. improving State air pollution programs through better e missions inventories, 2. providing

resourc es throug

h Title V f

ees, 3. providing a vehicle for implementing the air toxics and acid r ain programs, 4. improving enforcement, 5. achieving faster compliance, 6. requirin

g compli ance ce

rtifica tions from

facility operators, 7. listing all the applicable regulatory requirements in one document, 8. providing regulatory

certainty, a

nd 9. improving public participation. In July 1992, EPA p

ublished r ules and r egulat ions for im

plementin

g State a ir quality permitting sy

stems, mandated by Title V, in Title 40 of the Code of Federal Regulations (CFR), Part 70 (Part 70). E PA stated, in the preamble to Part 70, that th e Title V progra m would g eneral ly c larify which re quireme

nts 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 whe ther the source was meeting those requirements. (See Appendix D for EPA, State, and loca l agency roles and responsibilities in implementing Title V.) Although the 1990 CAA Amendmen

ts and the 1992 public ation of Pa

rt 70 set the Title V progra m into motion, it to ok sever

al years be fore Sta

te and loc al permit

ting aut horities b egan to issue Title V permits.1 See Sierra Club v. Envtl. Protecti on Agency , 322 F.3d 718 (D.C .Cir. 20 03) ; Pu blic C itizen v. E nvtl.

Protecti on Agency , 343 F.3d 44 9, 454 (5th Cir. 2003).

3

Current St

atus of t he Title V Pr

ogram
Accord ing to the time line e stablishe d by

the CAA Amendments

in 1990, a

ll initial Title V permits should have been issued by 1997, a nd were to be renewed every 5 y ears. As of June 30, 2004, State and local permitting authorities had issued 91 percent (15,658 of 17,274) of the required Title V pe rmits. While many State and local pe rmitting authoriti es have i

nitially issued al l their Tit

le V perm its, other permitting authorities have issued as little as 57 percent of pe rmits applied for. Ge nerally , those ma jor sourc es that a

re not y et permit ted are the larg est, most complex sources, and thus require more permitting authority resources to issue those Title V permits. Further complicating issuing these Title V pe rmits is that many major source s throughout the country are approaching the 5-y

ear renewal time for t heir existi ng per mits, so tha

t now some p ermitting

authoriti es must juggle the task o f initial is suances with that o f permit r

enewal s. After EPA wrote the Part 70 rules governing implementing Title V, most States receiv ed inter

im progr am approval for tw

o ye ars whic

h allowed them to be gin issuing permits. For a number of States, EPA extended the interim approval periods twice. Because the CAA states that interim appr ovals can only be f

or two ye ars and c annot be e

xtended, the Sierra

Club and th e New York Public I nterest Researc h Group su

ed EPA on th

is issue. T

he lawsu it resulte d in a settl ement in which EPA

agree d to addre ss issues in State rule s relate d to Title V in order to approve or disapprove the ir plans. EPA agr eed to iss ue a Fe deral Re gister

(FR) notice requesting letters from citizens containing their c omments about Title V. 1

Accord ing to Of fice of Air Qual ity P lanning

and Stand

ards (OAQPS) offic ials, after the FR notice was issued in December 2000, EPA received 34 letters from citizens that contained 350 Title V-related issues of concern af fecting 20 States. In response, EPA divided the issues into reg ulatory and implementation categories. The reg

ulatory cate gory

dealt with those issues regarding Fe deral and State re gulations and rul es affe cting Ti tle V; the implement

ation ca tegory dealt with issues related to administering and enforcing Title V. As a result of the public comment period, EPA issued Notices of Deficienc y (NODs) to certain permitting authorities to address the re gulatory 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 reg ulatory issues. Many

permitting authorities addressed multiple implementation issues by providing commitment letters t o EPA. All 1 12 State a

nd local p ermitting

authoriti es’ Title

V progr ams have now received final approval f rom EPA.4



### Scope and Methodology

To address questions regarding the adequacy of permit clarity a

nd whether permits c ontained

provision s that wer

e consist ent with ke

y Ti tle V req uiremen ts, we inter viewed o fficial s from OA QPS , environmental and industry g roups, key air and enforcement officials in all 10 EPA Reg ions, and State permitting authorities. We conducted extensive Internet litera ture 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 analy zed EPA and State guidance on Title V permit writing and re viewing, including guides designed to aid the public in effec tively participating

in the Title V program. Our approach include d a detailed review of selected per mits in New York, North Carol ina, Ohio , and Texa s. We used a data col lection in strument t o review 40 permits (10 permits in each State), represe nting a range of industries , inclu ding all su ppor ting docu menta tion a nd co mplia

nce r epor ts. Ap pend ix B provides a more detailed discussion of our data collection instrument and the sampling methodology

we used.

To assess the eff ectiveness of EPA

oversig ht and g uidance , we examined EPA regional efforts to rev

iew indivi dual per

mits and conduct eva

luations o f their respective State

and loca l agenc ies’ Title

V permit progra

ms, according to

their agreements with the Office of A ir and Radiation (OAR). We also sought to determine if the issues raised in NODs and commitment letters had been addressed and resolved by the releva nt permitting authorities. We accomplished this objective through reviewing selecte d permits and other documentation , intervie wing OA QPS and EPA

regional offic ials, and

reviewi ng the st atus of EPA Title V g uidance and rule s with key

stakehol ders. To determine whether Title V improved the implementation of the CAA, we interviewed representatives from all 10 EPA reg ions using a structured interview form. We also interviewed representatives from multiple additional stakeholder groups , includin

g OAQPS, the Office of Enforcement and Compliance A ssurance (OECA), permit wr

iters and reviewe rs from se lected St

ate per mitting a uthoritie s, environmental groups, and industry representatives. Using the data collection instrument discussed above, we also reviewed actual pe rmits from a selected number of States and compared their content and re quirements to pre-Title V State permits, where available. Beca use empirical data on benefits has not been maintaine d, the inf

ormation we collected on Titl e V implementation was larg ely testimonial; however, we incorporated empirical evidence wher ever possible. Appendix B provides more details on the structured interview form a nd methodology used. We performed this evaluation in accordance with the Government Auditing Standards , issued by the Comptroller Gener al 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 Governme

nt Accountability Offic e (GAO) audits and evaluations related to Title V i ssues.



### Results in B rief

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 analy sis, the clarity of Title V per mits, the sufficiency of monitoring provisions incorporated into permits, and the adequacy of statements of basis (SBs) and annual compliance cer tifications (ACCs) varied significantly a

cross permitting authorities. Factors such as extensive use of incorporation by re ference, failure to fully cite applicable regulations, complex permi t form at, an d lack of det ail i n sour ce requ ireme nts fo r test ing, m onit oring, and reporting negatively

affected permit clarity . The sufficiency of monitoring provision s in Title V

permits w as freq

uently a functi on of the u

nderly ing State and Federal regula

tions. Our review of 40 State-issued Title V permits found that 90 percent of those permits included some ty pe of gap-filling provision(s) where the underlying

regulations contained either no monitoring or insuffic ient monitoring requirements. This condition indicated a potential lack of sufficient monitoring requirements in State and Federal re gulations. 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 authoriti es and, in

some cas es, within

permittin g authorities. EP A respon ses to public petitions and EPA regional guidance provided a limited basis for the content of the statements of basis. However, EPA has made no succ essful attempt to provide consistency f

or statement of basis content. We noted a similar trend with resp ect to the

criteri a rega

rding A CCs under T itle V. The adequa cy of ACCs varied among permitting authorities. Our re view also revealed evidence of problems related to the practical enforce ability 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 Eff

ective

EPA’s ove

rsight o f Title V a

ctivities has resu lted in some

improveme

nts in State Title V programs; however, more improvements ar e needed. Until Fiscal Year (FY) 20 03, EPA’s OAR emphas ized, thro ugh Memorandums o f Agre ement, EPA regional offic e revie

w of per mits. The EPA regi ons larg ely met or exce eded this review i nitiative in FY 2002and 2003 a

nd frequ ently commente d on permi

ts reviewed. However, most EPA regions did not issue forma l objections resulting6 from these reviews, citing that, instead, they worked with permitting authorities early in the pe

rmitting process to avoid issuing objections to permits. In 2003, OAR shifted emphasis from EPA regional permit reviews to prog ram 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 aga inst Title V permits in

a timely manner. Althoug

h the CAA ma

ndates that EPA re spond to many of these petitions w

ithin 60 da

ys, the aver

age EPA response time to publ ic petitions has been a

pproximate ly 1 2 months. EP A regi on and OA QPS offic ials attribute d the dela

ys t o a shorta ge in re sources , and to the time requ

ired to coordina te efforts betwe en multiple office s within EPA

to formula

te responses to the petiti on. One ke

y of ficial a t OECA indic ated tha

t respond ing to pub lic petitions has not been a high priority within EPA.

In 20 01 and 200 2, EPA issue d 10 NODs t o permitti ng authorities to

address regulatory

problems in their Title V programs. EPA also received 23 c ommitment letters f rom State a

nd local p ermitting

agenc ies durin

g this pe riod to ad dress implementation problems in their Title V programs. States have resolved the majority of issues identified in NODs and c ommitment 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 improve d definitions of “prompt reporting of deviations” in reg ulatory lang

uage, improved statements of basis, and clearer citations to the origin of authority for permit terms and condition s. Althoug

h NOD issues are t

racked and their status is no ted in the

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

OAR has iss

ued very limited formal gu

idance a nd rules on Title V in

the past several years. In lieu of for mal guidance, the Agenc

y has relied on public pe

tition responses and letters to regions and permitting a uthorities to convey its position on key Title V issues. Many of the key stake

holders we interviewed cited a need for greater national consistency in the Title V program and indicated a desire f or guidance on periodic monitoring, as well as the minimum required content of statemen ts of basis and ACCs.
Benefits o f the Tit

le V Program
Overall, Title V has improved implementing the CAA. Most stakeholders told us that Title V has been partially successful in meeting seven congr essional Title V goals (better emissions inventories, consolidated reg ulations, facility operator certainty, public pa

rticipation, faster implementation of control requirements, fee programs, and periodic compliance re porting). However, industry representatives held a different view of Title V, stating that it has not acc omplished 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 enhanc ed impleme

ntation of key CAA provi sions, sig

nifican t improvements in listing all requirements in one document, requirement for ACCs, and Fe deral7 enforceability

of permits. Our comparison of pre- and post-Title V permits for our sampl e of 40 pe

rmits in 4 Sta

tes found that pre -Title V p ermits g eneral ly d id not record all CAA

require ments in one docume

nt, conta in an ACC re quireme

nt, provide f or public particip ation, or

grant t he public the rig ht to object to permit s.
Recommendations We are making a number of rec ommendations 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 tha t 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 dr aft report that consolidated its comments with those of EPA regions and the Office of Enforce ment and Compliance

Assurance. The

Agenc y g eneral ly d

isagre ed with our findings, conclusions, and recommendations related to issuing na tionwide guidance on the Title V progra m, but largely

agreed with our findings that the Title V pr ogram c ould bene fit from im proveme nts in per mit conten

t and EPA oversig ht.

Our eva luation c alled for EPA to issu e nationw ide guid ance on statemen t of basis (SB) and annual compliance certifica tion (ACC) content to assure that permitting authorities are consistently inc orporating 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 sourc e complexity . They

also state d that the

y ha ve not see n widespr ead prob lems with either SB or ACC con

tent. We ma

intain our position tha

t nationa l guidan ce is needed in each of these area s. Our findings indicated that permitting authorities may not have be en aware, or may have been reluctant to follow, “guidanc e” that was not issued nationally (such a s EPA statements issued in response to Title V permit petitions). EPA agr eed to fo llow throu

gh on va rious ac tions rec ommended in our re port, including issuing the draft rule on intermittent versus continuous compliance monitoring, completing its commitment to develop periodic monitoring guidance , reviewi ng the a dequacy of

monitoring

provision s in state i

mplementa

tion plans , and promulgating the order of sanc tions rule. The Agency

also agreed to develop five-ye ar plans combining oversight with permit review a nd 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 revise d the rep ort base d on EPA’s F ebruar y 7, 2005, con solidated

response and upda ted infor mation, a s appropr

iate. The Agenc y’ s consolid

ated re sponse and our evaluation of that response are in Appendix F.2 Interpretati on of permit clarit y can vary depending on individual perspecti ve. For the purposes of our evalua tion an d this rep ort, we interpr eted p ermit cla rity as referr ing to the extent to which sp ecific ke y perm it elem ents, by the ir ade qua cy or lac k there of, affect the ability of o utside re viewe rs to de termin e wha t requir eme nts apply t o a source and wh at i s expect ed of the source i n terms of meeti ng emiss ions l imit ations . Transl atin g complex regulations i nto source-specifi c requirements such that the facil ity personnel, EPA and State regulators, and the publi c coul d cle arl y i denti fy what is expect ed and how it woul d be meas ured, were among t he ori gin al g oals of having T itle V perm its.

8



# Chapter 2 Improveme nts Needed In Clarity and Completeness of Title V Permits If Goals A re To Be Realized

Various officials in EPA, and in environmental and industry groups, identified several problems concerning the c larity and content of key eleme

nts of Title V permits:

• the clarity of Title V pe rmits,

• 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 re viewing a sample of Title V pe

rmits in fo

ur States . Ina

dequate monitoring

require ments in some State and Federal regula

tions and a lack of clear EPA guidance on certain key

Title V elements contribu ted to per mit proble

ms. Collec tively , these

problems can hamper the ability of EPA, State a nd local regulators, and the public to understand what requirements sources are subject to, how they will be measured, and ultimately

to hold the

m accoun table for all app licable a

ir quality require ments. 

### Improvements Needed in Permit Clarity

Officials in OAQPS, OECA, 9 of 10 EPA regional air office s, and environmental and industry g

roup representatives told us they had concerns about various elements of permit clarity nationwide. 2 Comments from officials in these groups included the follow

ing: per mits lack s

ufficie nt detail, do not cle arly

cite app licable require ments, an d are dif ficult for the publ ic to unde rstand. I n review ing State permi ts, we also f

ound m any permi t clar ity-rela ted pr oblem s, in cludi ng:3 Incor porat ion by

ref erenc e (IBR): The proces s i n whi ch a per mit ti ng aut

hori ty li sts only

a ref erenc e, or cit ati on to, the under ly ing requi rement tha t t he sou rce i s su

bject to i nst ead of

provi ding both t

he ci tat ion a nd a narrative descrip tion of the requirem ent. To d etermine wha t the source must ac tually comply with, the reader m ust refer to the citation in the State or Fed eral regulations.

4 See pa ge 39 fo r more inform ation on pe rmit review pro visions in MO As betwe en OA R and EP A regions.

9 C extensive incorporation by re ference (I BR), 3

C failure

to fully cite unde rly ing reg ulations,

C lack of specificity

of source requirements for testing, monitoring , and reporting, and

C complex pe

rmit forma

t.
Permi t clar ity was al so affe cted b y a lack of i denti fying, or e xpl ainin g, streamlining in the permit’s statement of basis (SB). Officials in some of the States we visited asserted that Title V permits are complex engineer ing documents, and are thus, by their nature, not easy

documents to read and understa nd. We foun

d that pro blems with

these ke y e lements in

Title V pe

rmits can negatively

affect the clarity

and adequacy

of already

complex documents. These pr oblems mak

e it more d

ifficult for EPA, St

ate, and local re gulators, industry and environmental g roups, and the general public to readily discern which CAA

require ments app ly to

a facili ty a nd what th e facili

ty mu st do to demonstr ate comp liance w

ith emissions limitations. Title V Stakeholders Identified Problems in Permit Clarity

Officia ls at OAQPS expresse d conce rn about t he effe ct of per

mit clarit y pr oblems on public p articipa

tion and on

permit re views. Ac cording

to one key

OAQPS officia l, permits in some Sta

tes can b e “incom

prehens ible,” ma

king the m difficu lt and confusing to review. He also noted that per mits are more complex in States such as California, that have complex and extensive State-level environmental regulations. According to another key OAQPS officia

l, in some States the extensive use of I BR is a sig

nifican t problem. A key

OAQPS off

icial als o asserted that the public regularly complains about the lack of permit clarity and complex pe

rmit forma

t. 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 memor

andums of

agree ment (MOA s) betwe en OAR an d EPA regions 4 and provided comments regarding the adequacy

of permit content. Given the ir experie

nce with T itle V per

mits, we a sked EPA r

egiona l officia ls what patt erns, if any , appea

red in the ir revie

w comment s. Offic ials from six EPA regions said that they had commented on one or more of the following permit cl arity

problems :

C permits lacked sufficient detail,

C us e o f s tr ea ml in in g n ee de d t o b e e xp la in ed mo re cl ea rl y,5 M any EP A regiona l officials indicated that they were hesitant to describe permit eleme nts as weaknesses,

focusin g instead on ar eas tha t need impro vem ent.

10

C permits included inappropr iate per mit shields ,

C permits di d not clea

rly cite State Imple mentation Plan (SI P) requir ements, and

C permits w ere missi

ng appl icable r

equirements. We also asked EPA regional officials to assess the streng ths and weaknesses of various aspects of Title V permits, including permit clarity, for permitting authoriti es within t

heir re spective

region s. 5 While EPA regional officials told us that permit clarity is g enerally a dequate among most permitting authorities, they also iden tified some proble

m areas . Some EPA r

egiona l officia ls cited pe

rmit clarity as a stre ngth in c ertain p ermitting authoriti es, noting

that their permits were well-written, formatted in a user-f riendly manner , and easy to r ead. Howeve r, as show

n in Table

2.1 below , EPA offi cials in ni ne reg ions noted

some gener al permit clarity problems as well a s some spe cific pe rmit clar ity p roblems among p ermitting

authoriti es. Thes e proble ms include d extensive

use of I BR, vague permit la nguag e, and c omplex per mit forma t.6 Including the f ormat of general operating permits ; these permit s have a condensed application and permitt ing proces s. Sourc es wit h simi lar operations, emissi ons uni ts, and requir ements can apply f or general opera ting permits in lieu of an individual pe rmit. See page 13 for further discussio n of general op erating perm its.

11 Table 2.1: Examples of Permit Clarity Problems Identified b y EPA Re gional Offi cials
EPA Region Permitting

authority EPA region al off

icials ’ commen ts to

OIG

1 NA None
2 General - Permit clarity could be improv ed; howe

ver, it is di fficult to deve lop “user-fr iendly” d ocuments because of th e amount of info rmation requ ired by Tit le V.
3 General - States fail to provide a dequate justifi cations for strea mlining.

Distri ct of Columbia - Use of unkn own, unexplain ed acr onyms.

4 LouisvilleJeffer son Co ., Kentuck y - Use of IBR makes p ermits confusing.

5 Illinois - Some genera l permit langua ge makes it unclear whether requi rem ents apply to a so urce ; perm it st ruct ure co mpl icat es rev iew.
Indiana - Does no t always clearly lab el combined Title V/construction per mits.
Ohio - Ori gin a nd au thori ty of terms le ft out - wi ll be addre ssed up on pe rmit renew al; some vague permit languag e. 6 Texas - Extensiv e use of IBR can

make permits difficult to follow; fre quently require s going back to the applicati on for info rmation.
7 Iowa

Missouri - Someti mes fail to clea rly ci te SIP r equir ements.

8 North Dakot a - Permi ts need more d etail in ap plicab le re quire ments.
Utah - Permit langua ge can be v ague.
9 Arizona

California - In some permitting authorities in Arizona a nd Californ ia, permit

form at ca n be co mpl ex and di ffi cult to fol low.
10 Washington:

Industrial Section - Permi t format causes clarit

y issue s.

Sou rce : Co mmen ts prov ide d by EPA regi ona l ai r of

fic ial s in the ir w rit ten and o ral res pon ses to O IG’s structured inte

rview questions

. Nine out of the 10 environmental groups we interviewe d cited problems with the clarity of Title V

permits. T

hese pro blems incl

uded per mits that a

re incom plete or lack s ufficie nt detail, extensive

use of I BR, conf using pe rmit forma

t, 6 and issuing multiple Title V permits to a single source. Two environmental gr oup representatives told us they found permits in some States to be “incomprehensible.” One representa tive 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 envir onmental groups we conta cted con tend that the abilit y of the public

to exercise their right to enforce a pe rmit may be jeopar

dized if the permit is written in a way that c annot be understood by the public.7 In most ca ses, we did not r eview r equirement s concerni ng each i ndivi dual emis sions unit in t he Titl e V permits. Rather, we selected three t o four emissions uni ts at a s ource and reviewed the applicable requirements and corresponding monitoring provisions li sted in the permit . In sel ecting unit s to review, we f ocused on capturing the major e missions units at a source, as we ll as a variety of units.

8 Th e T exas p ermits w e revie wed includ ed a d escrip tion of the emissio ns limitatio n for ea ch em issions un it; however, they did not do the same f or monitor ing, test ing, record keepi ng, or r eportin g. These col umns inc luded only a c itation to a State or Fe dera l regulatio n.

12

The industry repr

esentatives we interviewed also identified problems with the clarity of Title V pe

rmits. They stated that the Title V prog ram 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 r epresentative also cited problems with clarity that arise from overlapping Fede ral and State rules and regulations. Represe ntatives noted tha t streaml ining ca

n minimize the

overlap and make

permits le ss complex. However, they also stated that the process to streamline can be timeconsuming and burdensome for the source. The y also expressed the belief that too much detail exists on certain provisions, such as requirements for in si gn if ic an t e mi ss io ns un it s ( IEU s) , w hi ch ad ds to pe rm it co mp le xi ty.
Results of

State Permit

Review

We revie wed a sa mple of pe

rmits in fo

ur States to addre ss the foll owing c larity issues: usi

ng I BR, whet her the p ermits correctly

reflected under

lyin g reg ulations,
us in g p er mi t s hi el ds an d s tr ea ml in in g, an d o ve ra ll cl ar it y. 7 We found that these elements were incorporated into Title V permits to vary ing degrees, and that overall, permit clarity

varied widely in most of the States we visited. Using Incor

poration By R eference
Almost all of the permits we reviewed incorporated applica ble CAA requirements by r

eference to some degr

ee. North Carolina, Ohio, and New York generally followed references or citations to a re quirement with a narrative section p araphr

asing the requir

ement. We

found a f ew instan ces in ea ch of the se 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 Car olina, Ohio, and New York permits we reviewe d was re asonably

discernable, pr

ovided the

reader had acc ess to the

State regula tions and/ or 40 CFR. In Te

xas, citati ons for a

ll requir ements sp ecific t

o emissions units at the source were listed in an applicable requirements summary table with minimal or no narrative description 8 . For the 10 Texas permits we reviewed, in order to determine what monitoring, testing , record keeping, and reporting the requirement entailed, the re ader had to review each citation in the State re gulations or 40 CF R. We found this to be a

time-con suming pr

ocess because of the Sta

te’s rel iance on

IBR for all e missions uni

t-specif ic requirements. A reader or a re viewer is especially

challenged when the citation9 Public Cit ize n, 343 F.3d at 45 4. The IBR decision was part of a more extensi ve ruling on a case brought

by Publ ic Ci ti zen ag ains t EPA for approvi ng the Tit le V prog ram i n Texas and for fai li ng t o is sue n oti ces of defici ency on s everal iss ues. EPA conceded to the court that it had previous ly provi ded guidance s tati ng that require ments s hould fi rst be rest ated on the face of the permit before IBR is used, howev er, EPA contended t hat su ch gui dance w as not

bindi ng and the Courtagre ed.

13 is gen era l an d do es n ot cle arl y refe ren ce a spe cif ic p ara gra ph o r su bse cti on. In those ca ses, a re ader ma

y ha ve to rev iew leng thy State or F ederal

regula tions to find the applicable paragraph. Texas also extensively uses I BR in general operating

permits. General operating permits a re intended to provide a condensed applica tion and pe

rmitting process for sites that are similar in t

erms of o perations, emissions units, a nd applic able 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 g ranting them operating status under the g eneral operating permit. General opera ting permits are not unique to Texas. However, they were used more frequently

there than in the other States we visited. Accord ing to Texas offici als, appr oximately 40 perce nt of Texas

Title V pe

rmits were issued through gene ral operating permits as of May 2004. The general operating permit we reviewed, whic h Texas officials stated was representative of the State’s other general opera ting permits, did not specifically identify the actua

l emissions units at a given source. To determine what requirements a ge neral operating permit source is subject to, the reader must request access to the per mit application to identify the source specific emissions units in the application, then locate the emissions units and operati ons listed i

n the ge neral op erating

permit ap

plicable require ments summary table, and loc ate the corresponding State or Fe deral regulation citation. For example, Texas general operating permits for oil and gas sources consist of 76 to 108 pages of applicable requireme nts tables – all with extensive IBR. Finally , the text of

the State or Fede ral reg ulation mus t be loca

ted and the details of the requirement identified.
In 2002, several environme ntal groups filed a lawsuit challenging , among other things, T exas’ use

of IB R in incorp orating

minor New

Source Re

view (NSR

) permits into Title V permits. On August 15, 2003, the 5 th 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 I BR withou

t narra tive desc ription, a nd partic ularly without a citation t o a speci fic subse ction, ca n nega tively affec t the clar

ity o f the per

mit, especially f

or 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 Pe rmits Rev iewed
State Number of

permits with IBR Number

reaso nably discer nable OIG comments related to IBR

New York 10 10 1. Genera lly parap hrase requ irements; howe ver, in a few cases it was necessary to reference 40 CFR.
North Carolina 9 7 2. Gen erall y IBR w as foll owed by p araph rasing ; ho wever, no

t alw ays fo r 40 C FR cita tions. 3. In two c

ases, ci tes to 4 0 CFR were not sp ecific en ough to det

ermine whi ch secti on w

as appli cable.
Ohio 10 9 4. Genera lly parap hrase requ irements; howe ver, in most permits it w

as necessary to

reference 40 CFR o r State regu lations for at least one re quire ment. 5. One instan ce wh ere a

citati on w

as not specifi c enou gh to deter

mine applicable section.
Texas 10 6 6. Tex as per mits rel ied exten sively

on IBR

. Re quire ments can be re asonab ly di scerna ble if read ers can access State regulations and 40 CFR ; how

ever , citati ons w

ere o ften n ot spec ific enou gh to identi fy the appl icable section o f the regu lation. 7. Difficult to discern wh ich general operating permit re quire ments ap ply to a sour ce wi thout a list of emissions uni ts at a specific site. 8. In gener

al, ex tensiv e IBR co mplicate s permit rev iews because

the applicab le requir

ements are no t clear

ly sta ted on the fa ce of th e per mit.
Total 39 (9 8%) 32 of 39 (82%)
Source: OIG ana

lysis of State Title V permit info rmation. Note: See Appe ndix B for de tails of our permit review work in

the a bove fo ur Sta tes.
How Well Perm its Reflec ted the Underly ing Regulation s
In North Carolina and New York, the permit text for the requirements we reviewe d matche d that of the underl yin g State or Fede

ral reg ulation. I n Texas, the permits had very

little narrative, so only a limited amount of text was availab le to comp are with the reg ulations. For those

we were able to crosscheck, we did not discover such discrepancies. We were not able to answer this question for several Ohio per mits, though, because the permits did not include a citation to the underly ing regulation–they provided a narrative description only . If the underly ing regulation is not identified, it is difficult to determine whether the State is correctly incorporating the requ irement. In a

letter to EPA Regi on 5 offic ials in Janua ry 2002, Ohio committed to address this issue upon permit renewal and to incorporate the origin o f author

ity f or each permit te rm and condition. I

n all State s, permit citations that were general, ra ther than specific, made it difficult to verify whether or not the content of the permit matched the underly ing regulation.10 Perm its typically contain permit shield language in the ge neral terms and conditions. So me also

incor por ate pr ovisio ns shield ing cer tain em issions un its from sp ecific req uirem ents

.

11 In its response to our draft report, Texas explained that since the permit

in question was i ssued, the speci fi c reg ulation c it ed had ch anged. The permi t s hiel d cit ati on was not u pdated when t

he re gul ati on chan ged, therefore the permit

text was no longer consi stent wi th the specif ic regulat ory citat ion.

12 Ohio began ide nti fy ing whet her s tre amli nin g exi ste d in pe rmit s i n th eir SBs in 2002.

15 Using Permit Shields an d Streaml ining
Of the 40 permits we reviewed, 7 included specific permit shield provisions beyond the lang

uage in the genera

l terms and conditions 10 --2 in North Carolina and 5 in Te

xas. Base d on our re

view of how well th e SBs expla ined the shields, the two shi elds in Nor

th Carolina, and fo

ur of thos e in Texas, did not app ear to be misapp lied. One

permit in T exas listed

the rationale for

the perm it shield through a gene ral I BR. The c itation re ferre d to in the T exas State regula tions did not provide enough information to determine whether the shield wa s appropriately

applied. 11

Streamlin ing in Tit le V perm its occurs when an

emissions u

nit is subje ct to overlap ping re gulations and the

permittin g authority

condens es the mult

iple require ments into one requi

rement in the perm it, which should be the most stringent. We asked the States we visited genera l questions about streamlining and looked for evidence of streamlining in the pe rmits. However, unless the permit or its SB explic itly

discusse d streaml ining, it would hav e been d

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

State we r

eviewe d that ide

ntified st reamlini ng in its SB s. 12 The State did not, howev er provi de a side -by-side co mparison of requi rements t o justify which re quireme

nt was sel ected a s the most st ringen t. Without cl early identifying stre amlining 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 Per

mit Cl arity

Genera lly, we noted

inconsiste

ncies in the clarit

y of the perm its we re viewed in New York, Ohio, and Texas. To determine whether the pe rmit provisions were clear, we reviewed the per mit requirements for specific emissions units and attempted to identify what wa s expected of the source in terms of meeting emissions limitations. Besides taking into account the clarity elements discussed above, a nd the exte

nt to which

outside r esearc h was re quired to

identify these requirements, if any , we also considered how these elements affe cted the monitoring, testing, and reporting require ments in permits. Most provisions and requirements in the permits from these States were clea rly incorpora

ted; however, some were not. Among the per mits we reviewed, the specific factors that we determined affected over all clarity included:13 New York’s permit s are gen erated au tomati call y by a comput er program cre ated to pr ocess Tit le V

perm its. Acco rding to N ew Y ork o fficials, chan ges to th e com puter gener ated p ermit syste m are difficult and would require a signi ficant out lay of f unds to the contractor. The State spent an estimated $8-10 milli on to develop the sys tem i n 1992.

14 See pa ge 18 fo r further discussion of mo nitoring requirem ents.

16 • Extensive u se of I

BR made p ermit provisions mor e diffic ult and time consuming

to revie w (Texas) , which c ould dete r members of the pu

blic facing a limited c omment pe

riod fro m review

ing per mits.

• In New York, re quirements for a specific emissions unit may be scattered throughout a permit, some of which are more than 100 pa ges in length. making i t difficu lt to get a complete picture of a unit’ s requir

ements, 13

• Using vague permit requireme nts, 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 Yor k and Ohio).

• In States that frequently incorporated AP-42 emissions factors to determine compliance, or relied on surrogate monitoring , it was not always cle ar how these alternate methods would satisfy the underlying

requirements (Ohio and North Carolina). 14

As indica ted above , problem s involving a number of diffe rent per mit eleme nts impacted the clar ity o f permits , potentia

lly a ffectin g the ab ility

of the pub lic to clearly unde

rstand what is expected of a source. OAQPS addressed seve ral clarity issues, including

when it is appropriate to reference r equirements in a permit and the proper use of streamlining, in guida nce documents issued in 1995 and 1996 (

White Pape

rs Number

1 and 2). A series

of “Title V Permit Wri

ters’ Tips” developed by

EPA Region 3 also addressed clarity elements, such as streamlining and permit shields. As discussed on page 13, the 5 th Circuit Court of Appea ls found that nothing

in the CAA p

rohibits in

corpora tion of ap plicable require ments by refer ence. EPA regi ons have

sometimes

address ed other

clarity issues thr ough pe rmit revi ews and r

esponses to public p etitions. F or example , in response to a public

petition, R

egion 5 officia

ls stated t hat they would wor

k with Ohio to clarify va

gue permit language

. 

### Some Statements of Basis (S Bs) Missing Key Elements

Genera lly, EPA offic ials belie

ve SBs in many

States ha ve proble ms. Offic ials in 8 of 10 EPA

region s told us tha

t inadequ ate or mis sing SBs

were a problem in some of th eir State

or local permittin g authorities. En

vironmen tal gro ups 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 SB s since they asse rted 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 nationwide15 Addit ional EPA peti ti on res ponses and cour t dec isi ons ha ve addr esse d the requi rement tha t SBs be includ ed w ith perm its.

17

guidance on SB c ontent. O fficial s in six EPA re gions ide ntified the lack of

EPA guidance as a problem for SBs. We believe complete SBs not only provide a legal and factual basis for per mits, 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 prepa re a statement for each draf t permit to provide the legal a nd factu al basis o f the per

mit. The OA

R has not issued any g

uidance 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 de cisions and EPA’s responses to public petitions. (See Chapter 3 for a more complete discussion of this issue.) Howeve r, not all concerned officials in EPA Regions may be aware of applicable court de cisions or public petitions. A memora

ndum from

the Chief of EPA Reg

ion 5's Air Programs Branch to the Chief of Ohio’s Division of Air Pollution Control, dated Decemb er 20, 20 01, and a n EPA Reg ion 9 petiti on respon se in FY 2004, were the most complete an

d recen t EPA documents we lo cated that provid ed speci fic guidance on what informati on should be included in an adequat e SB. 15 The EPA Region 5 memorandum referred to above stated that the following information should be i n the SB:

• discussion of the monitoring and oper ational r equirements,

• discussion of the r

egulat ory applica bility determinations,

• explanations of any conditions from previously issued permits that are not being tr ansfer red to the Title V pe

rmit,

• discussion of streamlining requirements, and

• other fa

ctual inf ormation i

ncluding a listing of prior Title V pe

rmits issue d to the same applicant at the plant, attainment status, construction, and permittin g histor y of the plant and compl iance hi story

of the pla

nt. EPA Region 9 provided additional guidance on the contents of SB s in a recent response to a public

petition. Accordin

g to a ke y O AQPS offic ial, issue d EPA regional guidance and E

PA responses to public petitions drafted by E PA regional office s, and issu

ed by the Admini strator, should be c onsidere d guida nce for SB content. Howeve

r, we be lieve a r

egulat ion explain

ing the c ontent re quireme nts of an adequate SB should be issued because not a ll EPA regions may be

aware of guidance issued through petition responses or other EPA regional guidance. F or example, during the course of our review, we noted one instance in which one EPA region was unaware that EPA’s Reg ion 9 had provided additional guidance on SB con

tent. EPA regional officials and environmental g roups identified problems with SBs. EPA regional officials we interviewed ide ntified 20 permitting authorities that16 40 C FR 7 0. 6( a) (3 )( i) (B)

18 either d id not pre pare SB s or had inadequa te SBs. F or example , officia ls in Region 1 identified three States that did not prepare SBs bec ause these States believed that their permits contained information on the legal and f actual 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 g roups we contacted believed that inadequa te SBs we re a pro blem. Fr om these o fficial s’ persp ectives , the main SB problem was the excessive disparity in SB content from State to State. Our review of SBs (or equivalent documents) in the f our 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 informationin the SBs we reviewed was not consistently presented in each permit in e ach of the four Sta tes. SBs or equiva

lent docu ments pre pared by these permittin g authorities ha

ve evolve d over time

and the more rec ent SBs g eneral ly 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 revie wed in New York did not have a corresponding SB because New York did not prepare SBs for their early Title V permits. Texas originally pre pared “Technical Summaries ”, but lat

er beg an using

SBs that w ere mor

e 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 e quivalen

t documen

ts, for the States we

reviewe d are dis cussed in Appendix C. 

### Monitoring Prov isions In Permits Varied, A dequacy Questioned

Problems e

xist in the ad

equacy of monitor

ing prov isions in Tit

le V perm its in many States. Officia

ls at OAQPS, all 10 EPA regions, and a number of environmental groups identified problems with monitoring provisions in permits. Similar pr

oblems we

re ident ified in ou

r revie w of a sa mple of Ti

tle V per mits 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 author ities, EPA, and the pu

blic to determine w

hether or not fac ilities ar

e meeting applica ble requirements. The first provision referred to above , the periodic monitoring provision , requir

es, in the absence of other applica ble requ irements , “...pe

riodic monitoring sufficient to yie ld reliable data from the relevant time period that are representative of the source’s complianc e with the permit...” 16 The second monitoring provision, sometimes referred to as the “sufficienc y,” or “umbr

ella” monitoring provision, requires that each permit contain “monitoring, r eporting17 40 CFR 70.6(c )(1)

18 W hile some Federal and State air quali ty regul ations include specific monitoring requirements, others have “gap s” in monitoring req uirements and do no t specify the type or frequenc y of monitoring for ce rtain emissions, or b oth.
19

and rec ord keep ing req

uiremen ts suffic ient to ass

ure comp liance w

ith the ter ms of the permit.” 17 Some underlying a ir quality requireme

nts in Federal regula tions or a pproved SIPs explicitly

require facilitie s to perf

orm a spe cific type of monitoring; howe ver, many do not. Prior to Title V, there was no Federal require ment to ad

d monitorin

g to per mits if the u

nderly ing reg ulations a pplicabl e to the source did not specify the type or fr

equency of monitoring. Both the periodic and umbrella monitoring provisions have been subject to numerous interpre tations by EPA and the

courts. We

believe this has c ontribute d to inconsistencies in the adequacy of monitoring nationwide and has affected the ability of stake holders t o determ ine sourc e complia

nce with a

pplicabl e regulations. Stakeholders Identified Problems With Monitoring Provisions
Officials at OAQPS identified overall problems with the adequacy of monitoring require ments in Tit

le V perm its. One ke

y O AQPS offic ial told us t hat perm its are sometimes issued without monitoring provisions. For example, Texas gener ally did not inc lude per

iodic monit

oring pr ovisions in

Title V pe

rmits until 2002. Another key OAQPS official noted that there is a substantial range in the adequa cy of provis ions which

State per mitting a uthoritie s insert in

permits to

fill monitoring gaps in the underly ing requirements applicable to a source. 18 OAQPS officials stated that State permitting authorities vary significantly in the qua

lity of the monitoring provisions they include in pe rmits, and that substantial Title V monitoring problems exist in some cases. OAQPS officials also expressed concern that oversight in some EPA reg ions 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 enforc ement efforts. They stressed the

importance of sufficient monitoring provisions in the effective enforc ement of

Title V pe

rmit requ irements , noting t

hat monitor

ing is the key to ensuring that sour ces comp ly w

ith air qua

lity rules an d regu lations. 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 sever al EPA regions stated that comments they provided re lated to monitoring provisions were frequent, and
were a mong the most common

problems observe d in permit s. Some off icials noted that many of the c omments provided were made early in the Title V program, and that improvements in monitoring provisions have been ma de 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 streng ths and weaknesses of monitoring elements in permits

issued by permittin g authorities in their resp ective r egions. Most EPA regional officials indicated that the majority of permitting authorities include a dequate monitoring

provision s in their p ermits. H owever , as shown in Table 2.3 below, EPA officials in nine EPA regions identified permitting authorities in their area that have had problems with incorpora ting inadequate or minimally

accept able moni toring provisions

in permits , partic

ularly periodic monitoring

provision s. Severa

l regions noted that the sub jective n ature of air pollution monitoring , together with th e lack of EPA guid

ance on appropr iate monitoring, leads to inconsistencies in permit provisions and essentially requires a case-by -case determination of appropriate monitoring.21 Table 2.3: Examples of Mo nitoring Pr oblems In Titl e V Permits Identified B y Regions
EPA Region Permitting

authority EPA Regio nal of

ficial s’ comme nts to OIG

1 Maine - Inapprop riately lab eled monitoring as ‘State-only ’ enforceabl e in some dr

aft pe rmits.
2 General - Monitor ing is prog ressing; wo rk closely w ith States to dete rmine adeq uate mo nitoring; lack of guid ance l eads to

incon sistenci es. 3 Maryland - State has di fficult

y wi th stre amlinin g; someti mes leav es out require ments that are still applicable, which impacts monitoring. Pennsylvania - Mon itorin g in sy ntheti c minors need s stren gthen ing.

4 Mississippi - Reg ion p rovid es tra ining , wor king w ith Sta te to i mprove permit s.LouisvilleJeffer son Co ., Kentuck y - Some p roble ms with monitor ing p rovis ions.

Shelby, Tenn

. - Reg ion is prov iding train ing to

new staff.
5 Indiana - Lack of suffi cient mo nitoring r equir ements i n some p ermits; more mo nitoring d etail neede d in SB s. Illinois - Inadequate monitoring p rovisions; fail to specify fre quency of te sting

(“upon request” is not sufficient).
Minne sota - Inad equat e per iodic monitor

ing in some pe rmits.
Ohio - Shou ld inc lude more detail r egard ing mon itorin g deci sions i n SBs.
6 Texas - M oni tor ing pr ov isi ons ge ner all y a deq uat

e, b ut I BR c

an make the m unclear.
Louisiana - Lack of sufficien cy in opacity monitoring.
7 Kansas - Adequate, but requir e minimally acceptable level of te sting and monitoring.
Iowa - Require the barest minimum level of testing and monitoring

. Nebra ska (including local permitting autho rities ) - Adequate, but proble ms with PM and opacity monitor ing.

8 Colorado - Peri odic mon itorin g issue s; CAM defici encies

.

Montana - CAM defici encies in re newa l permits.
Utah - Inad equat e/missing peri odic mon itorin g; CAM defici encies

. Wyoming - Peri odic mon itorin g issue s; CAM defici encies

. 9 Arizona - Suffi cient mo nitoring is an iss ue, bu t improving recen tly du e to EPA comments a nd ob

jectio ns. Bay Area Air Quali ty Management Distri ct - Early pr oblems with pe riodic monitorin g were addressed, bu t some issues remain.

10 Idaho,

Oregon Washington - Need to improve monitorin g.

Source: Comm ents provided by EPA regiona

l officials in the

ir written an d oral re sponses to OIG’ s structured inter view qu estion s.19 Envir onment al g roup r epres enta ti ves c onten ded th at s ome permi ts do not de clar e whi ch t ype of

mon itoring a facility must us e, but ra ther pr ovid e seve ral differe nt op tions. W e foun d on e exa mple of this pra ctice in an Ohio permit . The source w as provided t he option of

either conduct ing cont inuous SO2 monitoring or coal samp ling to d eterm ine co mplia nce.

20 Baron, Da vid; et al ., National Environmental Trust, “Title V Operating Programs in Texas, Ohio and Georgi a,” June 11, 2001.

21 OAQPS and EPA regiona l of fi cial s st ated that

the majori ty of i ssu es r ais ed in publi c pet it ions are de nied.

22 In it s respons e to th e draft report, EPA comm ented t hat i t did not

alway s disa gree wi th monit oring i ssues raised in Ne w Y ork p etitions ag ainst indi vidual permits.
22 Represe ntatives f rom 8 of th e 10 envir

onmental groups we inter viewed a lso expresse d conce

rns reg arding

the incor poration of monitor

ing prov isions into Title V pe

rmits. Seve

ral representa

tives stat ed that pe rmits, in g eneral , freque ntly lack the appropr iate monit

oring r equirements. Representa tives also expressed concern regar

ding the clarity

of monitoring provisions from the general public’s perspective. The y noted that when monitoring provisions are included in permits, factors such as extensive IB R and listing several different monitoring options in the permit, instead of specify ing one monitoring requirement, can limit permit clarity for the public. 19 According to one group, permitting authorities have particular trouble filling g aps in monitoring provisions in permits when monitoring requirements are not expressly prescribed by the SI P.

A number

of envir onmental groups contribu ted to a June

2001 rep ort on the

Title V programs in Texas, Ohio, and Georgia. 20 The authors of this report contended that none of these State pro grams r

equired sufficie nt monitori

ng provisions in permits, particularly w

ith regard to opacity

requirements. Additionally, a numbe r of public petitions filed by environmental g roups against proposed permits and/or State permitting programs cited inadequate monitoring provisions as a concern. Some of the se petition issues we re gra nted by EPA; others were d

enied be cause EPA did not f

ind a basi s for the

specific complain t. 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 oper ating permits. EPA disagreed with monitoring concerns ra ised in public petitions against the New York and Ohio permitting progra ms, stating that while they would wa tch for individual pro

blems in pe

rmits, ove rall the progra

ms include d adequa

te monitoring and met the minimum requirements of 40 CFR Part 70. 22
EPA Guidance on M

onitoring in Title V Per

mits
Title V’s monitoring requirements have been subject to multiple interpreta tions. OAR first issued guidance on periodic monitoring requir ements (40 CFR section 70.6(a)(3)) in 1998. This guidance suggested that permitting authorities review each applicable underly

ing requirement to determine if the monitoring included in per mi ts was suf

fic ien t t o de ter mi ne s our ce c om pl ian ce w it h t he C AA. If23 Appalachian Power Co.v Envtl. Prot ecti on Agency, 208 F.3d 1015, 1028 (D.C. Cir. 2000)

24 Utili ty Air

Regulatory Group, Inc. v. Envtl. Protect ion Agency , 320 F. 3d 272, 276 ( D.C. Ci r. 2002)

25 Environment

al Int egri ty Pr oject

v. Envt l. Prote cti on Agency No. 04-1083 ( D.C. Ci r. File d Mar. 19, 200 4).
23

monitoring provisions were insufficient, then additional monitoring provisions could be added. The validity of this guidanc e was challenged in court and in the 2000 Appalachian Power

case, the D.C. Circ

uit Court of

Appeals set the EPA gu id an ce as id e, ru li ng th at th e A ge nc y ha d o ve re xt en de d i ts au th or it y. 23 Under the Court’ s ruling , if the un derly ing State or Fede ral stand ard req uires a s ource to perform a specific ty

pe 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 underly

ing standard requires no period ic testing , specif

ies no fr equency, or requir

es only a one-ti me test. I n its ruling, the cour

t noted tha

t Congre ss did not a

uthorize EPA to requ

ire State s, in issuing Title V permits, to revise monitoring requirements in existing Federa l emissions standards. EPA has not issued any additional per iodic 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 propose d rule on sufficien

cy monitoring . The pro

posed rul e stated

that wher

e applic able State or Federal requirements alre ady requir e 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 challenge d in court. 24 As part of

a subsequ

ent leg al settle

ment with in

dustry plaintiff s, EPA revised its suffic iency

monitoring

rule and releas ed a fina

l rule, now refer

red to as “umbr ella monit

oring,” on January

22, 2004. I

n this fina

l 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 unde rlying r egulations are silent on either the ty

pe or frequency

of monitoring required, or where monitoring

is not per iodic. A c oalition of

environmental an

d public he alth groups petitione d the Cour

t to revie w this fina

l rule on M arch 18, 2004. This latest ca se is pend

ing in the D.C. Circu

it 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 g uidance 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. Offic ials in another two regions stated that the lack of EPA guidance on monitoring require ments increased the burden on the regions to make case-by

-case determinations of monitoring adequac y in permits. Officials in another region told us that the lack of EPA per iodic monitoring26 As part of the 2 004 umbrella m onitoring rule, EP A com mitted to three future rulema king actions,

includ ing (1) impro ving so urce m onito ring for o pac ity and p articulate s by pr ovid ing mo nitoring guida nce inp ut to the upcomin g implement ation of the National Ambient Air Qualit y Standar ds (NAAQS) for fin e parti culat e matte r (PM) 2.5; (2) i denti fy ing and cons ider ing improv ing possibly ina dequat e moni tori ng i n Feder al r ules and SIPs by issuing an adva nce no tice of p ublic ru le-mak ing (A NP R) ca lling for p ublic c omm ent; and (3) p ublishin g a sep arate proposed rule to address what constitut es “periodic monitoring” under secti on 70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B).

27 For the pur

poses of our

revie w, we cons idered surrogate monitori ng to be us ing means other t han dire ct emissio ns mo nitoring or testing to me asure a sour ce’s co mplia nce w ith an ap plicab le State o r Fed eral req uirem ent. See T able 2.5 fo r examp les of surrogate mo nitoring we noted during State pe rmit reviews.

28 Our assessment of the suf ficiency of monitoring provisi ons was based essentiall y on the incl usion and clar ity of the se ke y permit

ele ments . We did not

inde pendent ly ass ess the appropri aten ess of t he t echni cal or engineering aspects of each monitoring provision.
24

guidance caused inconsistencies among States and delaye d permit issuance. OAQPS officials indicated that they have plans to issue a rule clarify ing what constitutes periodic monitoring. However, these officials we re uncertain of the time fra me for ru le issuance and noted that previous efforts to addre ss monitoring guidance needs have be en subject to legal challenges a nd lengthy delay s. 26
Some EPA regional officials also commented on the possible effe ct 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. F or example , prior to this rule, Region 4

officia ls worked extensive ly with Flor ida’s Titl e V prog

ram offi cials to im

prove mon

itoring provision s in permits because they

determined that certain requirements in the SI P 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 require ments wer

e found to

be inade quate. A s discusse d above, EPA has a differe nt interpr etation in the new u

mbrella monitoring

rule. OA QPS offic ials stated that they plan to re lease an advance notice of propose d rulemaking (ANPR) c alling f

or public comment on potentia

l monitorin

g inade quacies

in SIPs a nd Fede ral reg ulations. Monitoring Issues Identified In Reviewing State Permits

In re viewing State per mits, we a ssessed t

he adeq uacy of the fo llowing e lements of monitor

ing prov isions:

• inclu sion of peri odic m onit oring;

• inclusion

of complia

nce assu rance monitoring

(CAM);

• gap-f illing underly

ing State and Fed eral re gulations;

• use of surro gate mo nito ring; 27 and

• the overall sufficiency of permit requirements to determine compliance. 2829 For the pur poses of our

revie w, we def

ined peri odic monit oring as monitori ng of appli cable reg ulat ed emissio ns req uired mor e than o nce d uring the term o f the per mit. T he freq uenc y of mo nitoring in the pe rmits general ly r efle cted ei ther t he underl ying State or Federal r egulat ion. I n some cases , th e monitori ng fr equency was add ed as gap-filling w here th e und erlying re gulation was silen t.
25 While all of the permits we reviewed included monitoring on a periodic ba sis for at least s ome appli cable r equirements, we

found tha

t, in general, th e permits

did not consistently incorporate pe riodic monitoring for all requirements. The majority of the permits g ap-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 pe rmits we reviewed also included some type of surrogate monitoring for one or more requireme nts, the adequacy

of which va ried. Ov erall, w e found that many of the per mits we reviewed contained monitoring provisions sufficient for an outside observer to determine c ompliance with the un

derly ing req uiremen ts. Howev er, more

than half of these permits containe d both suff

icient an d insuffic ient monitoring re quireme nts.
Provisions

for Periodi

c Monitori

ng All of the Title V permits we reviewed contained periodic monitoring provisions for at le ast some p ermit re quireme nts. 29 Periodic monitoring was not, however, consistently incorporate d into each requirement we reviewed in e ach State. To vary ing deg rees, w e found examples of a lack of p eriodic

monitoring

in permits in all of the States we reviewed. I n some cases, State officials explained that periodic monitoring was not necessary because the ty

pe of material used by

the
sou rce red uce d t he i nci den ce o f po ll ut ant emi ss io ns t o be lo w re gul ate d l eve ls . In these cases, permits required the source to maintain re cords 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 per

mits conta

ined few periodic monitoring

provision s becaus e the State did not sta

rt includi ng them f or all ap plicable require ments until December 2002.

• In New York, monitoring f or some pollutants from some emissions units was required only onc e during the permit term, or upon request by the permitting authority. New Yor

k statements of basis did not provide clear rationales for these mon

itoring decision s and the p ermit for mat made i

t difficu lt to track all of the requirements for an emissions unit.

• In Ohio, we found some case s where the frequency of monitoring was not specified or where State officials asser ted that monitoring was not necessary because of the ty pe of mat erial use d, howeve

r, explana tions for t hese decision s were not alway s contained in the s tatement s of basis

. Complia nce Assurance Monitoring In 1997, EPA promulgated new regulations to implement CAM for major stationary source s subject to Title V that rely on pollution control devices. CAM30 On e per mit we re viewe d in T exas su bmitte d its T itle V a pplic ation in 1 999 . Ho weve r, the facility’s

em i s s i on s u ni t s we r e n ot r el i an t on em i s s i on s co nt r ol de vi ce s an d w er e t

he r ef or e n ot s ub j ec t t o C AM.
26 require s owners

or opera tors of so urces to conduct m

onitoring that provides a
reasona ble assur ance of compliance with a

pplicabl e requir

ements. So

urces with Title V ap

plication s complete d before April 1998 were no t require d to incorpor ate CAM in

to their pe

rmits until r

enewal of their T itle V per

mit applica tion. All bu

t one of th e Title V p ermits we reviewe d submitted

their initial ap plication s by

April 1998 and thus w ere not r equired to addre ss CAM. 30 CAM provis ions are

require d to be add

ed upon pe

rmit rene wal. OAQ PS officia ls anticip ate that, once impl emented , the new require ments in CAM

will improve monitoring in a large number of Title V sourc es. Officials from several Regions noted tha t CAM inclus ion is one o f their c riteria elements for per mit
re vi ew in or de r t o e ns ur e t ha t t he se pr ov is io ns ar e i nc or po ra te d a de qu at el y. Gap-filli ng Underlyi

ng State/Federal

Regulations
We found examples of States adding monitoring provisions, or “gap-filling ,” where the underly

ing requirements were silent on either the ty pe or frequency

of monitoring in 90 percent of the permits we reviewe d. As shown in Table 2.4 below, in these pe rmits, the typ e/method

or freq uency of monitor

ing for at least one requirement we reviewed excee ded the provisions in either the underly ing State or F ederal

regula tion. Unde

r EPA’s c urrent in terpretation of p eriodic monitoring, as specified by the D.C. Circuit Court in the Appalachian Power case, a permitting authority may add monitoring r

equirements to the Title V permi t if t he und erlying St ate or F ederal stand ard req uires no per iodi c test ing, specifie s no freq

uency of testing , or requ

ires only a one-ti me test. I

n the per mits we revie wed, spe cify

ing the f requenc y of monitoring

when the underly ing State regula tion was si lent was t

he most co mmon ty

pe of g ap-filli

ng used by St ates.

Table 2.4: Permits That Added Moni toring Requ irements to F ill Gaps in Underly ing Reg ulations a
State Number of permit s that added gap-filling monitoring Number that a dded monitoring type Number that a dded monitoring frequency
New York 8 3 7
North Carolina 9 5 9

Ohio 9 7 7
Texas 10 2 10
Total 36 (9 0%) 17 of 36 (4 7%) 33 of 36 (9 2%)
Source: OIG ana

lysis of State Title V permit info rmation

a Note: Some permits add ed both the type and frequency o

f monitoring. Se e Appendix B for detail s concer ning our p ermit r

eview s in th e abo

ve 4 States.31 Th e nam e of the a ir pollu tion co ntrol p rogra m in O hio is the O hio E nviro nme ntal Pr otectio n Age ncy.

32 The EPA AP-42 manual st ates t hat t he Agency does not recommend the use of AP-42 factor s as s ourcespecific permit

limit s and/or as emissi on regulation compliance determinati ons .

33 “Sum mary o f Emiss ions F actor s Imp rove men t Pro ject F act Fin ding S urvey,” prep ared by E C/R Incor porat ed of Ch apel Hill , NC for OAQPS, June 2004.
27 Surrogate Moni

toring

In 29 of the 40 p ermits we reviewe d (73 per

cent), s ources were per

mitted to us e surrog ate monitoring, r

ather th an direct emissions monitoring

or testing , to
measure compliance with a

State or F ederal

require ment. Some

of the mos t freque ntly observe d ty

pes of sur rogate monitoring

or surro gate me

thods to determine compliance included fuel certifica tes to verify the sulfur

content of the fuel, AP-42 emissions factors, and using opacity monitoring to measure particulate matter. Surrogate monitoring wa s more commonly found in our sample of North Carolina, New York, and Ohio permits than in Texas permits. The emissions factors used as surrogate mea sures in the permits we reviewed ranged in quality . Some were considered acceptable for use in estimating an individual facility’s emissions, while other fac tors were less reliable. For example, AP-42 emissions factors were identified as surroga tes for determining compliance with applicable requirements in six Ohio permits we reviewed, and in four North Carol ina perm its

. An EPA Region 5 official noted that AP-42 factors are sometimes used to determine instances whe re periodic monitoring provision s are not

necessa ry –for exam

ple, whe n the emiss ions fac tors indic ate that the so

urce’s potentia l to emit is not big eno

ugh to e ver exce ed the ap

plicable 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 ra nking system is appropr

iate. Ohio EPA ranks eight emissions factors from best to worst; AP-42 ty pe factors are considered the least reliable on the list. In a June 2004 EPA report identify ing where the emissions factors program needs to be improved, g overnment, industry and environmental g

roup stak eholders commente d that EPA g uidance is neede d as to when it is a

ppropria te to base or enfor ce perm it and enf orceme nt limits with emissions f

actors. 33 See Table 2.5 below for ty pes of surrogate monitoring identified by State.28 Table 2.5: Surrogate Monitoring O r Compliance Determinatio n In Permits
State Number of permits

that include surrogates Ty pe of surroga te monitoring or compliance deter mination

New York 10 - Certificatio n of SO2 conten t of fuel - Opa city te sting t

o measur

e PM - Temp/pressure gauges for VOCs
North Carolina 8 - Certificatio n of SO2 conten t of fuel - AP-42 emissions facto rs (4) - Record w

eights of raw

materials
Ohio 9 - Fuel testing to determine S0 2 content - AP-42 emissions facto rs (6) - Measuring volume to estimat e VOCs - Source specifi c non-AP-42 e missions factor - Computer softw

are progr

am (Tanks 4.0) - Measure

H2S to estimate SO2 emissions
Texas 2 - Require ment to use a specifi c fuel - Source test p erformed on similar sources Total 29 of 40 (7 3%) 33 of 36 (9 2%)
Source: OIG ana

lysis of State Title V permit info rmation . Note: See Appendix B for detail s concerning o ur permit revie

w re sults in the a bove

4 Stat es. Many Monitoring and Reporting Requ irements Sufficient To Determine Compliance
We considered whether the monitoring and repor ting provisions included in the permits we examined appeared to be sufficient for Gove rnment officials and members o f the ge

neral pu blic to determine s ource c omplianc e with per mit require ments. Ta

king into accoun t the monitoring el ements a nd permit c larity factors discussed previously , we found that many r equirements in the permits we reviewe d contained suffi cient pr ovisions to

enable a n outside p arty

– with ampl e time and e ffort – to

determine the sour

ce’s compliance

with the a

pplicabl e 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 c larity 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 sufficienc ies included:

• The monitoring frequency was not specified or no periodic monitoring included.

• The IBR to ge

neral rules did not clearly specify monitoring

and reporting require ments.

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

• Monitoring

and reporting we

re “upon request by t he age ncy ” with no sp ecific condition s.29 • Reliance was on less reliable AP-42 emissions factors instead of ac tual emissions.

Table 2.6: Overall Sufficiency Of Monitor ing Requirem ents In Title V Permits
State Number of pe rmits wh ere a ll requirements re

viewed were sufficient t

o determine compliance Number of pe rmits wh ere s ome requirements were

potentially

not sufficient t

o determine compliance

New York 5 5

North Car

olina 6 4

Ohio 3 7

Texas 3 7

Total 17 of 40 (4 3%) 23 of 40 (5 8%)

Source: OIG ana

lysis of State Title V permit info rmation. Note: See Appendix B for detail s concerning o ur permit revie

w re sults in the a bove

4 Stat es. As indicated above, the overall sufficiency of monitoring provisions in Title V permits is impacted by a number of

differe nt factors. Our e

vidence sugge sts that, given the high rate of g ap-filling in permits, there may be a significant lack of sufficient monitoring requirements in State and Feder al regulations. State and local permitting authorities incorporated periodic monitoring in per mits on a case-by- case ba sis, with inconsiste nt results . Region

officia ls frequently commented on monitoring problems in their review of permits, however problems remain. Region e fforts to review m

onitoring require ments in pe

rmits were imp acted by

the lack of national policy

on key issues. OA

R effort s 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 unde rlying monitoring provisions. However, it contains OAR commitments to issue periodic monitoring guidance and to add ress monit

oring in sufficie

ncies in St

ate and Federal regula

tions. 

### Improvements Needed in Annual Compliance Certification Content

Title V requires that responsible officials at permitted sources sig n 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-y ear reporting period. Congre ss include d the ACC pr ovisions in

Title V to e

nsure tha t the resp onsible official certify

that they have know

ledge 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 a s to completeness from State to State and did not consistently address complianc e for the same terms and conditions in the30 permits. OAR has not issued guidance that explains the required terms and condition s that shou

ld be cer tified for complia

nce in an ACC

. As a resu

lt, Title V source s have no t been re quired to report their comp liance s tatus con sistently throughout the country

. The req uiremen ts for ACCs

are fou nd in 40 CFR Part 70.6(c)(5)(i) . Part 70
re qu ir es th at AC Cs be si gn ed by a respon sible off icial and submitted a

nnually to both EPA and the permitting authority. I n general, the ACCs should include each of the requirements listed in Table 2.7 below.

Table 2.7: Key

Requirement

s Of An nual Complian ce Certifica tions Under

Title V Key A nnual Complian ce Certification Provisions and Requirements Must identify

and list each term or conditi on of the p ermit that is the b asis of the compliance certification.
Must i denti fy the

method (s) or

other means u sed by

the o wner or op erato r to d etermin e compli ance status with ea ch term and cond ition durin g the certificati on period

. Must identify

the status of fa cility compliance w ith the terms and conditions of the permit for the period covered by

the certificatio n, including whether compliance during the perio d was contin uous or intermittent.
The certification shall identify each devia

tion and take

it into accoun t in the complian ce certification. Th e certifi cation shall also i denti fy, as possib le ex ceptio ns to co mpliance , any peri ods du ring which compliance is requ ired and in which an excur sion or ex

ceedance occurr

ed as define d under p art 64 of 4 0 C.F.R. Any other fa cts as the permitting authority may require to determine the compliance status of the source.
Many of the ke y st akeholde rs we inte rviewed cited pr oblems wit

h ACCs. EPA officials from four of the 10 regional of fices cited the lack of EPA guidance for ACCs as an underlying

cause for the problem. Also, four environmental g roup representatives believed that problems were a ssociated with ACCs. The lack of completeness of ACCs was cited as the main problem because ACCs lacke d adequate compliance reporting r equirements. An industry re presentative we interviewed believed that ACCs required sources to cer tify compliance on too many para

meters. As noted in Chapter 3, a key OAQPS official told us that OAR no longer issues nationwide guidance. I nstead, guidance has been issued by some EPA regions, and there have been associated ruling s in court cases and EPA responses to public petitions. A key OAQ PS official told us that future OAQPS guidan ce wil l requ ire a ru lemak ing.
Certifica tions Receiv

ed By the States Were Inconsistent

We revie wed, whe n possible , the most r

ecent A CCs submitte d 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. I n some instances, a ye ar had not passed since the permit had been issued and an ACC was, ther efore, not due. I n all, we r

eviewe d 30 ACCs; 10

in New York, 7 in North Carol ina, 7 in Ohio and 6 in Texas. In one instance, an ACC which wa s due had not been submitted to Texas for activities in the past year. A s 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.34 Natural Resources Defense Council, Inc.v Envtl . Protect ion Agency , 194 F.3d 130 ( D.C. Ci r. 1999)

. 31 In gener al, we found problems with (1) consistency in ACC reporting requirements for the permits we examined in the four States we visited and (2) comp letenessof AC Cs sub mitte d by perm itted sour ces i n Texa s and

Ohio. We believe the probl ems were

at least, in part, a

ttributab le to the la

ck of ade quate EPA guidance on ACC content. The differences we found re lated to whether the facilities certified compliance in the ACC with each permit term and c ondition or wheth er the f

acilitie s simply

certifi ed compli ance wi

th the ent ire per mit except for any ide

ntified deviations . In the October 22, 1997, pre amble to Part 70 revisi ons - Compli ance Ce rtifica tion Requir

ements (6 2 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 Rul

es on Compl

iance Certi

fications N

ot Issued

The OAR ha s not issue d suffic ient gui dance or rules on ACC conte nt. First , EPA has not issued drafted guidance that identifies what ter ms and conditions should be c ertifie d in ACCs. Se cond, EPA issued a r

ule in June 2 003 to add

ress a court decision related to defining terms in ACCs and inadver tently left out wording related to credible evidenc e. 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 rece ived by the States were inconsistent with respect to the content of the ACCs. However, EPA has not issued any g uidance 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 Resourc es Defen

se Counci l

consider ed the Ag ency ’s ACC req uiremen ts for its final operating permits program a nd concluded that these requirements did not address whether the perm ittee had been in “ continuou s or inter mittent” 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 c ontinuous or intermittent during the peri od cover

ed by the ACC.

EPA amend

ed 40 CFR 7 0.6 (c)( 5)(iii)( B) and 4 0 CFR 70.6 ( c)(5) ( iii)(C) to state that continuous or intermittent compliance referred to the complianc e status during the ye ar, and not the nature of the data obtained by the monitoring35 To b e enforceable as a practical matter, a permit condition should provide a clear explanati on of how the

limit or requirement applies to a f acilit y and make it possible t o determine whether the faci lity is complying wit

h the

con dition.
32

metho d. How ever, a mist ake was appare ntly mad e in th is rul e by exclu ding a key clause on credib le evide

nce. The following

sentenc e relate d to cred

ible evidence in AC Cs was left o ut of the curr ent regulatio ns 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 i

nformation .” According to a key

OAQPS official, the omission was inadvertent and occurred due to an a

dministra tive err or. The O AQPS offic ial state d that this p rovision is strongly disliked by

industry. OAQPS has attempted to place this lang uage back into Part 70 . This revision had not been completed at the time we finished our field work.


### Practical Enforceab ility Concerns W ith Some Permits

The enf orceme nt of Title V permit provisions

is affec ted by the manne

r in which the req uirem ents a re writ ten in to th e permi t. Mo nito ring, r ecord k eepin g, and reporting pr

ovisions in

permits should be wr

itten in suf

ficient d etail to lim

it interpretation or ambiguity in meaning. Provisions that are imprecise or unclear
can cau se proble

ms with enf

orcing permits. O ECA and EPA regional offic ials identified potential practical enforceability problems in permits. Environmental groups provided similar comments in a number of public petitions. A key OECA off

icial noted that practical enforceability is a significant part of Title V pe

rmit enforcemen

t. 35 According to the official, a permit is not practi cally enfo rceabl e if it does n ot con tain a dequa te pro visi ons fo r moni torin g, record keeping, and repor ting. An absence of these elements or the pr esence of vague permit languag e (for example, requirements to test emissions “as require d” or “pe

r manufa cturer ’s speci fication s”) make s a permit virtually unenforceable, or not practically enforceable. The official also noted tha t vague permit language or vague phrases are proble matic because they

force the reader to have to go to another source to identify applicable requirements. I n addition to problems with vague languag e, 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 pra ctical matter. For example, monitoring twice during the 5-y ear term of the permit meets the current interpretation of periodic monitoring; howeve r, it may not be fre quent enough to verify

compliance.36 Title V permi t condit ions can not li mit t he ty pes of dat a or inf

ormation ( e.g. , credi ble evi dence) th at may be us ed to pro ve a vio lation o f any ap plicab le req uirem ent.
33 The offi cials we

intervie wed fro m EPA regional air office s stated that most permitting authorities issued permits that were gener ally adequa

te in terms of practical enforceability . However, officials in 8 out of the 10 regions told us that problems in some permits potentially affe ct practical enforceability . They identified specific enforceability problems in a number of permitting authorities (see Table 2.8 below). Examples of practical enfor ceability problems cited by EPA reg ional off

icials inc luded inc orrect

labeling of requi rements a s State-only enforc eable, v ague or unenforceabl e permit l angua ge, impr oper use of permit shields, and permit language preve nting the use of credible evidence. 36 Officia ls in one region noted that certain provisions in underly ing regulations may

have practical enforceability

problems that the region cannot address bec ause the
curren t Title V pr

ogram l imits their

ability to add add

itional re quireme

nts to permits. (See discussion of the Appalachian Power decision and EPA’s umbrella monitoring rule on page 23)34 Table 2.8: Examples of P ractical Enf orceability

Problems Ide ntified by EPA Re gions a
EPA Region Permitting

authority EPA region al off

icials ’ commen ts to

OIG

1 Maine - Inappropriately labeled monitoring requirement s as State-only enforceab le.
2 General - Significant n umber of conditio ns in each Titl e V permit, not a ll of whi ch are adequ ate w ith re spect to pract ical e nforce abili ty.
3 NA - Gen erall y ade quate in al l permitting autho rities

. 4 LouisvilleJefferson Co., Kentuck y & Shelby Co., Tenn. - Prac tical e nforce abili ty in permits needs improv ement.

5 Indiana - Nee ded a nti-cr edibl e evi dence “buste r” la nguag e in p ermits. b
Minne sota - Need to use placehold ers when a compliance schedu le may be

pend ing d ue to enfor

cement a ctions.
Illinois - Inclu ded i nappr opriate per

mit shiel ds for

Feder al re gulat ions.
Ohio - Vague permit language (“testing if required”).
6 Louisiana - Some problems with practic al enforceability.

Texas - Some enforceability problem s identified with monitoring, reco rd

keepi ng an d rep ortin g in a pplica ble r equir ements.
7 NA - Adeq uate i n all permitt ing a uthor ities.

8 Montana - Allowed State air Di rector’s discretio n on testing.

Utah - Vague or unenforcea ble permit lang uage. 9 Arizona - Blanket permit shield language problematic; allowed State air Dire ctor’s discre tion o n some i ssues. San Joaquin Valley - Not enoug h deta il pro vided for e nforce abili ty of permit limits.

South Coast - IBR led to some problems with enforceability.

10 Washington :

Industrial Section - Permi t format causes clarit

y and enfor

ceabil ity pr

oblems.

Source : Comments were provide d by EPARegi on off icials in the

ir wri tten a nd or

al re sponse s to OIG structu red i ntervi ew que stions.

a Region offi cials noted that some problems we re identifie d earlier in the pr ogram and eith er have been resolved o r are in the process of being resol ved.

b Anti-cr edibl e evi dence buster lang uage states t hat no thing in th e per

mit shall be con strued to limit the u se of credible evidence. In its response to our draft report, EPA no ted that this issue

has been r

esolved and India na no

w in cludes

an an ti-cre dible

evid ence b uster langu age co nditio n in e ach pe rmit.
Environme

ntal gr oups cite d potentia

l problems

with prac tical enf orceab ility

in permits in a number of public petitions. The issues they e xpressed concern about included:

C having permits that contain provisions not enforceable as a practical manner;

C improperly limiting using c redible evidence,

C improper

ly u sing per

mit shields , and

C having permit conditions that are too vague to be e nforceable.37 See C hapter 3 for a dditional informa tion regarding N OD s and co mmitmen t letters.

38 As no ted in fo otno te 21 , OA QP S and EP A reg ional o fficials told u s that the m ajor ity of issues ra ised in publi c pet it ions are de nied.
35

EPA responded to several of these comments by soliciting commitment letters from the S tates, a

nd in four cases, by a

ddressin g the iss ues in NOD s. 37 For example, EPA agre ed with pu blic petit ion conce rns that p ermits in Ohio contained conditions that were too vague to be enf orceable as a practical matter and state d they

would wor

k with Ohio

to improve

enforc eability

of the pe rmit language. I

n most other cases, EPA did not agree with the assertions in the petitions a

nd 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 St

ate Permi

t Review

As shown in

Table 2. 9 below, w e identif ied poten tial prac tical enf orceab ility problems in 22 of the 40 permits we reviewed in New York, Nor th Carolina, Ohio, and Texas.

Table 2.9: Practical E nforceabilit y Concerns In Permits Rev iewed
State Number

of permits reviewed Number of

permits with practical enforceability concerns Description of Concern(s)

New York 10 6 1. Some permits contain ed referen ces to “manufactur

er’s specifications”

without l isting wh at, 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 gener al not specific e nough to rea sonabl y det

ermine appl icable

sectio n. Ohio 10 7 4. Testing freque ncy not specifie d. 5. Some permits containe d reference s to “manufactur

er’s specifications”

without l isting what, at a minimum, this should entail. 6. One case w here citation not specific eno ugh to det ermine appl icable

sectio n of r

egula tions.
Texas 10 7 7. General op erating pe rmit did not list th e actual emissions units at the specific sour ce on the face of t he pe rmit. 8. Gen eral IBR to lengt hy re gulat ions mad e it difficult to

identify the

section applica ble to the sour ce. 9. Monitori ng frequen cy not specified

. Total 40 22 (5 5%)
Source: OIG ana

lysis of State Title V permit info rmation. Note: See Appe ndix B for de tails concerning our perm it revi ew resu lts in the ab ove 4 S

tates.
We co ns id er ed pr ov is io ns wi th va gu e l an gu ag e, su ch as re po rt in g “ pr om pt ly” and inspecting and maintaining equipment “as suggested by manufacturer’s36 specific ations” –

where not followe d up with mor e specif ic detail – to potentially limit the ability of enforcement staff to clearly hold sources
accoun table for complia

nce with p ermit con

ditions. We a

lso noted p ossible problems with practical enforceability where requirements were incor porated by reference in an overly

general manner, making

it difficult to determine what requirements the source was actually subject to. For example, under reporting require ments, a p ermit may

refer ence an entire 4 0 CFR subpa

rt. Without a specific citation to the relevant parag raphs, the reviewer must examine the entire subpart to locate the requirement; in some cases this means examining more than 80 pages of requirements. I n 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 pe rmits 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 cla

rity was neg atively

affec ted by

a number of diffe rent fa ctors, including extensive

use of I BR; failu re to full y c ite under

lyin g reg ulations; lack of specificity

of source requirements for testing, monitoring , and reporting, and complex permit format.

• Evidence suggested that insufficie nt monitoring provisions in Title V permits is a problem in a number of different State and local per mitting authorities. Monitoring is a critical aspect of Title V; however, State a nd Feder al reg ulations o ften do no t provide for suff icient mon

itoring , and EPA lacks guidance on periodic monitoring.

• The ade quacy

of SBs an

d ACCs cont

ent vari ed signi ficantly

in the State permits w e revie

wed; EPA r

egiona l officia ls indicat ed that SB and ACC content a dequacy va

ried nat ionwide a s well. EPA has not clearly e stablished 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 vag ue permit language and insufficie nt monitoring provisions have posed potential practic al enfor

ceabilit y pr oblems for Fede

ral and St ate enf orceme nt offici als.

Our review of 40

State-iss ued Title V permits

found tha

t 90 perc ent of the se permits included some type of gap-filling where the underly ing regulations containe d either

no monitor

ing, or i nsuffic ient monitoring pr ovisions. T

hese results suggest that a substantial lack of sufficient monitoring requirements may exist in State and Federal regulations. EPA’s decision to re-write its dra ft sufficiency

monitoring rule, and issue instead the more narrow January 200437 final umbrella monitoring rule, could limit the ability of State a nd local permitting authorities and EPA regions to use Title V permits to correc t monitoring

deficie ncies. EP A did, how ever, r ecogn ize the ne ed to addr

ess monitoring

in underl yin g reg ulations in

the umbre lla rule. In thi s rule, EPA committed to taking several actions to improving monitoring, including issuing periodic monitoring

guidance and is suing an

advanc ed notice

of public rulemaking, calling for public comment on monitoring ina dequacies in SIPs and Federal regulations.

Collectiv ely , the prob lems with p ermit cla rity and the a dequacy of

permit content undermine a basic tenet of the 1990 CAA Amendments – that of transpa rency , openne ss, and fu

ll and ef fective public inv olvement . Problems with permit clarity make it more dif ficult for Title V stakeholders to identify what requirements sources are subject to. Without sufficient monitoring provision s, it is diff

icult to me asure w

hether or not a sou

rce is c omply

ing with applicable requirements on a reg ular basis. When permitting authorities include only minimal information in SBs, they miss an opportunity to make permits that
are ess entially

complica ted eng ineerin

g documents more

understa ndable to stakehol ders by

including

explanatio

ns for pe rmit deci sions. ACCs t

hat conta in insufficient information reduce the source’s leve l of accountability to EPA, State and Federal regula

tors, and to the public.


### Recommendations

We recommend that the Assistant Administrator for Air and Radiation: 2-1. Develop and issue guidance or rule making on annual compliance certification content which requires responsible off icials to certify c ompliance with all applicable terms and conditions of the permit, as appropriate.

2-2. Issue the draft rule

regarding intermittent versus continuous monitoring a s it relates to annual compliance certifications and including credible evidence. 2-3. Develop nationwide guidance or rule making, as appropriate, on the conte nts o f stat ement s of ba sis (S B) whic h incl udes d iscus sion s of mo nito ring, operational requirements, regulatory applicability determinations, explanations of any conditions from pre viously issued permits that are not being transferred to the Title V permit, discussions of streamlining requirements, and other factua l informa tion, whe re advis able, inc luding a

listing of prior Titl e V permi

ts issued to the same applicant at the plant, attainment status, and construction, permittin g, and c omplianc e history of the pla

nt.
2-4. Thr ough its p eriodic

discussions with EPA regions and State and local permitting authorities, emphasize improvements in Title V permit clarity by minimizing

using inc orporat

ion by refer ence (I BR), cle arly

citing a pplicabl e underlying

regulations, emphasizing conciseness in permit format, and using statemen ts of basis to identif y a nd explain p ermit dec isions rel ated to strea mlin ing.38 2-5. Expeditiously follow through on its commitment in the January 2004 umbrella monitoring rule to develop periodic monitoring guida nce.
We recommend that the Assistant Administrator for Air and Radiation and the As si st an t A dm in is tr at or fo r E nf or ce me nt an d C om pl ia nc e A ss ur an ce jo in tl y: 2-6. Develop and implement a training progr am and use their oversight authority to help EPA regional offices and State and local permitting authorities in preve nting pr actica l enforc eability

problems in Title V p ermits.

We recommend that the Assistant Administrator for Air and Radiation and the EP A R eg io na l A dm in is tr at or s j oi nt ly: 2-7. Establish and implement a plan to review the adequacy of monitoring provisions in SIPs.

We recom

mend that the EPA Re gional Administra tors:

2-8. Ensu re that Sta

te and loc al permit

ting aut horities c onsistentl

y a pply 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 bee n considered. 

### Agency Comments and OIG Evaluation
EPA made several comments on the material presented in Chapter 2, and we made re visions to the Chapte

r where appropr iate. The Agenc y di d not fully agree with our findings that national g uidance could provide further consistency and compl eteness

in ACCs and

SBs. Spec ifically

, the Ag ency

disagr eed with
recomme ndations 2 -1 and 2- 3 rega rding these issue s. Howev er, we c ontinue to believe that national guidance on ACCs and SBs would better e nsure consistency among

the States and regions. We found that States may be unwilling to follow (or be unaware of) g uidance that is not national in scope, therefore diminishing EPA’s claim of the adequac y of “g uidance” issued in the form of public petition responses. Further, in response to EPA’s disag reement with our dr

aft rec ommendat

ion to issue

nationwid

e guida nce to ad dress problems with practical enforceability in Title V permits, we changed our
recomme ndation to

address potentia l practic al enfor

ceabilit y w eakness es in permits through training and more effe ctive oversight. The Agency ’s consolida ted respons e and our evalu ation of th at response ar e in Appendi x F.39 

# Chapter 3 EPA ’s Overs ight and Guidance Have Improved State Tit le V Progr

ams, But

Gaps Re main

Our review of OAR and EPA regiona l office efforts to provide Title V progra m oversight and guidance to State and loca l permitting authorities found the follo wing:

• While most EPA

regional offic es met OA

R progr am goal s for per

mit revie ws, they have g enerally not issued timely reports in evaluating permitting authoriti es’ Title

V progr ams.

• 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 a nd local commitmen

t letters have be en resol

ved, impor

tant issue s remain u

nresolve d in Texas, Hawaii, and Ohio.

• Many EPA reg

ional offices and other key stakeholders wanted additional guidance from OAR reg arding a number of key Title V elements. However, OAQPS has had limited success in recent attempts to issue Title V guidance. 

### Regio nal Re views of T itle V P ermits G eneral ly Met OA R Goal s Expectations for regional oversight of Title V per mits are documented in the annual memorandums of agreement (MOAs) between OAR and the EPA regional offices. In FY s 2001 and 2002, MOAs between OAR and the EPA regiona l offices indicated that

• five EPA r

egions c ommitted to

reviewi ng 10 pe rcent or more of T itle V per

mits drafte d by

permittin g authorities in their resp ective r egions,

• two EPA regions agreed to annua lly review at lea st 5 percent of permits,

• two EPA regions agreed to annua lly review a se

t number of permits (25 and 50, respectively

), and

• one EP A regio n not ed tha t becau se perm it rev iew was not i denti fied as a high priority in OAR guidanc e, the region would conduct “a fe w spot checks” of permits and generally

limit review activities to responding to citizen petitions

. Most EPA regional offices met OAR progra m 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 agree ments primarily addre ssed the Assistant Administrator (AA) for Air and Radiation’s priorities. The EPA reg ional offices needed to certify

only that they

would work to meet general annual per formance measures, rather than providing a spec ific, point-by-point analy sis of each provision. As a result, specific commitments to review individual permits were largely removed from the MOAs as OAR emphasis shifted to overall evaluations39 Th e FY 200 3 M OA for on e regio n (Re gion 6 ) retaine d a p ermit re view state men t - the regio n com mitted to

reviewing five perce nt of permits.

40 EP A a nd S tate P rog ress in Is suing Title V P erm its , Rep ort N o. 20 02-P -000 08, M arch 2 9, 20 02.

41 40 CFR 70. 8(c ) s ta te s t hat th e Adm in is tr at or w il l o bje ctto th e i ss uan ce o f a ny pro pos ed pe rmi t t hat EPA det er mi ne s i s n ot in

com pl ia nc e w it

h Ti tl e V.
40 of permit ting aut hority Title V pr

ograms

. 39 The program evaluations were dev elo ped , i n pa rt, in res pon se t o re com men dat io ns i n a M arc h 20 02 E PA OIG report. 40

Based on data pr

ovided by EPA reg ional off

icials, r egiona l permit r eview ra tes in FY 2002, and continuing into FY 2003, gene rally met, and in most cases e xceeded, 10 percent. As shown in Table 3.1, regional per mit review rates for 9 regions range d from 9 pe

rcent to 90 perce nt. One EPA

region reviewe d only

one perm

it during this time.

Table 3.1: Number and Percent of T itle V Perm its Reviewed by EPA Re gions - FY02- 03 a Region FY02 MOA

permit review commitment FY02-03 t otal proposed permits Number reviewed by r egion FY02-0 3 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 peti tions

only 181 1 0.5%

Source: MOAs between OAR and EPA r

egions. Perm

it review data provided by EPA region officia ls in their written and o

ral response s to OIG’s str uctured inter

view questions

a EPA regional permit review data wa s collected for the combined FY02- 03 period ; most EPA regional o ffices did not br eak re view data down by in divid ual y ear. Regions generally

provided informal comments to permitting authorities on the permits they reviewed; most reviews did not result in EPA issuing formal objections to perm

its. 41 As shown in Chart 3.1, since the Title V program beg an, two EPA re gions ha

ve each issued obj ections to

at least 5 0 permits b ased on their reviews or on public comments filed against a permit. Four EPA regions issued objections to 3 or f

ewer pe rmits; and

four EPA r

egions have nev er forma

lly objecte d to a Title

V permit.42 As of Decemb er 2004. T his number includes a program evaluati on completed in Louisiana prior to the

development of

the OAQPS program evaluat ion quest ionnai re.
41 Chart 3. 1: Formal Object ions to Tit le V Per mits by EPA Regions

Officials from all 10 EPA regions, including those that objecte d to permits, stated that they typ ically prefer to avoid is suing formal obje ctions to p ermits. O fficial s 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 F Y2003, OA

R shifted i

ts focus f rom enco uragin g EPA re gional o ffices t

o review individual permits to performing Title V progra m evaluations. According to OAQPS of

ficials, EPA reg ional off

ices con ducted T itle V pro gram e valuations, including on-site reviews, of 31 permitting authorities betwee n October 2002 and Decemb er 2004. Most EPA re gional o ffices i ndicate d that the

y pl an to comp lete all Title V program evaluations by the end of FY 2006. One EPA regional of fice, citing limited resources, stated that they would not have all of the evaluations comp lete d unti l 2008 . As shown in Appe ndix E , of the 31 program evaluations conducted, only 14 ha

ve resulted in final reports issued. 42 The remaining 17 reports are still in process.

Accord ing to OA QPS guida

nce on c onducting

and compl eting th ese eva luations, final reports on the reviews should have been issued not later tha n 90 days afte

r completing each on-site visit. A key OAQPS official told us that some of the region s with outst

anding reports have not met this 90- day completion targe

t. The delay s in issuing

the reports prev ents EPA a nd other governme

nt offici als, as we ll as the general public, from becoming aware of problems with Title V programs a s they are identified. OAQPS officials explained that they ha ve requested that the regions complete and submit their assessments of the permitting authorities, but42 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 re quire regions to complete the delay ed reports. In responding to our dra ft repor t, EPA indic ated tha

t regions take a

signific ant amoun

t of time to prepar e prog ram eva luation re ports and that the r egions a lso provid

e time for State and local permitting authorities to comment on the draft reports. 

### EPA Responsivene ss to Publ ic Peti tions Nee ds to Impr ove

EPA review of Title V permits can also occur as a r esult of public petitions. According to section 505(b)(2) of the CAA, if E PA 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 day s after t

he end of EPA’s 45- day

review p eriod. I f the pet ition is file d 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. Acc ording to an online EPA database (updated in October 2004), EPA rec eived 162 public petitions regar ding Titl e V prog

rams or p ermits be

tween July

1996 and July

2004. Of t

hose petitions received, EPA has responded to over two thirds (70 perce nt), averaging approximately 12 months to respond to each petition. As shown in Table 3.2, the
ra ng e o f r es po ns e t im es to th es e p et it io ns va ri es fr om 2 m on th s u p t o n ea rl y 4 years. EPA still has not responded to some pe titions, dating back as far as May 1998. In recent y

ears, EPA’s petition response rate has been re latively low. Since January 2002, EPA has only responded to 35 percent of the petitions filed.43 Sierra Club v . Whit man , 1:01- cv- 01991 (D.C. Cir. Fil ed Sept . 19, 2001); and Suit Fil ed Against EPA Over Per mits fo r Illinois C oal- Fired Po wer P lants, Daily Environment Rep. (BN A) No 1 79, at A-7 (Sept. 16, 2004), disc ussi ng, Ameri can Lung Ass’n of M etrop olitan Ch icag o v. L eav itt, No.04 C 5966 (N.D. Ill . f il ed Sept . 13, 2004)
43 Table 3.2. Su mmary

of EPA Responses to Title V Peti tions - 1996 t o 2004
Year filed Number

of petitions Number of pet itions filed

that EPA

event ually responded to Av erage 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 149 a 104 (70 % of total petit ions filed) 12 2 - 47

Source of data : EPA Region 7 Air Program, Title V Petition Data base; http:// www.epa.g

ov/reg ion07 /prog rams/ artd/a ir/titl e5/pe tition db/pe tition db200 4.htm

a In 2003 EPA d ismissed 13 public p etitions. Those petitions are not included in Table 3 .2, as they d o not reflect typical EPA responses to p ublic petitions. In each of th e petitions di smissed by EPA, the Agen cy had alrea dy in itiate d the proce ss to re open the pe rmits for the fa cilitie s that t he pe tition s wer e base d on. Because of thi s, EPA di smissed th ese pe tition s as “u nripe .” Althoug h the Act r

equired EPA to res

pond to at least 5 3 public petitions l isted in the EPA database we reviewed within 60 day s of the filed date, EPA did not respond to any within the re quired 60 days. EPA did re spond to 45 of the 53 petitions; however, the average re sponse time was almost 17 months. EPA had not responded to the other eight petitions at the time our fieldwork ended in Oc tober 2004. These eight petitions have been awaiting EPA response for an averag e of over 26 months. For 92 petitions in the database we could not find sufficient information to determine whether EPA was required to respond w ithin the 60 day time frame. We found only f our instances where EPA deemed petitions filed as untimely , theref ore rel easing

EPA from a

duty to respon d within 60 d

ay s. EPA region and OAQPS officia

ls attribu ted the de lay s to a shor

tage in resourc es, and to the time r equired to coordi nate ef forts between mul

tiple off ices with in EPA that

is
necessa ry to formula

te responses to the

petitions. A key

officia l 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 Age ncy, occ asionally forcing

the Agency to act through a court ruling. The Ge orgia Chapter of the Sierra Club filed one such suit in September 2001 and as recently reported, a “coalition of environmental g

roups” su ed EPA for

their fa ilure to r espond to p etitions a

gainst Title V pe

rmits for severa l Illin ois based coal-f ired pow er plant s. 4344 See discussion of the Agency’ s Title V guidance later i n this chapter.

45 See , Sierra Club, , 322 F.3d at 718 (D.C .Cir. 20 03) ; Public Cit izen , 343 F. 3d at 449, 454

. 44 EPA’s timely response to applica ble public petitions is also important due to the Agenc y’ s lack of

adequa te Title V guidance over

the past s everal

ye ars. 44 Agency officials told us that informal guidance provided throug h public petition responses has serv ed as a me ans of pr oviding E PA Title V g

uidance . EPA’s re sponses to public petitions should not be a substitute for formally issued EPA guida nce on Title V. Nonetheless, since these responses have serve d as informal Title V guidance, EPA’s untimely responses may ha

ve exacerbated the problems that have arisen from the lack of formally issued guidance.


### Most NOD and C ommitment Lett er Issues Hav e Been Reso lved

The OAR and EPA regional offices exerc ise oversight by issuing NODs for program deficiencies. State and loca l permitting authorities had resolved the majority of the issues identified in NODs issued by EPA. Most of the commitmen

ts made by

the four State ag encies w e visited were ade quately address ed by

the State s. In

gener al, in the se four St

ates, we noted impr

ovements in their Title V programs as a result of NOD a nd 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 pr ovisions, 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 unr esolved program deficiencies. This “or der of sanctions” rulemaking is a first step before EPA ca n take sanctions against a State. EPA draf ted a pro posed rul e on the a

pplicabi lity

of sanct ions rela ted to the se unresolved NODs, but the proposed rule has not been issued for c omment in the FR. After EPA wrote the Part 70 rules governing implementing Title V, most States received interim program approva l of their Title V programs from EPA for two years. This EPA interim appr oval allowed them to begin issuing permits. On May 22, 2000, EPA extended the interim approvals for 86 State and local operating permits pr

ograms a second time. Be cause the CAA stat es that int erim approvals can only be f

or two year

s and cannot be extended, the Sierra Club and New York Public Interest Research G roup Inc. (NYPI

RG) sued EPA over the extended interim approvals in the Court of Appeals for the District of Columbia. The lawsuit r esulted in a settlement in whic

h EPA ag reed to a ddress is sues in Sta

te rules raised by

the Sierra Club and NYPIRG in considering whether to approve or disapprove their Title V programs. EPA ag reed to issue a FR notice requesting citizens’ comments concerning deficiencies in the States’ Title V pr ograms. 45
According to key

officials in OAQPS, after the above-mentioned FR notice requesting public comment was issued in December 2000, EPA r eceived 34 letters45 fro m ci ti ze ns t hat con tai ned 350 is sue s af fec ti ng 2 0 S tat e Ti tl e V p rog ram s. In response, EPA divided these issues into regulatory and implementation categories and issued NODs to permitting authorities that it deemed as having re gulatory issues, and obtained commitment letters from States and local permitting authorities addressing the implementation issues. The regula tory issues require d changes in the permitting authorities’ reg ulations, while the implementation issues require d chang es in imple menting the perm it authori ties’ pro grams t

o resolve these issues. Ultimately, EPA issued NODs to 8 States, 34 districts in California, and the Distr ict of Colu

mbia, dire cting th em to cor rect the se reg

ulatory issues. At

least 23 permitt

ing authorities a

ddresse d multiple i

mplementa

tion issues

in their commitment letters to EPA. As of October 2004, all State and local permitting programs have receive d final approval from EPA, although some NOD and commi tment lett er iss ues wer e stil l out stand ing.
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 prog ram 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 progra m deficiencies. NOD issues have been
reso lved with a ll Sta tes e xcept for T exas, Hawa

ii, an d Wisc onsin . App endi x E provides details on the status of all NODs issued by EPA as of October 2004.

Accord ing to EPA , Texas ha s resolve d all issue s in its NODexcept for final EPA approva l of a SI P revision

related to excess e

missions re sulting f

rom fac ility malfunctions. This SIP revision was included in a Texas reg ulation amendment on January 2, 2004. EPA proposed appr oval of Texas’ SIP revision on March 2, 20 04 , b ut ha s n ot yet gr an te d f in al ap pr ov al of

th e S IP r ev is io n. Co ns eq ue nt ly, because EPA has not officially approved the SIP revision
, EPA has not issued a FR notice granting its final approval of Te xas’ action to correct its NOD. In the opinion of a key EPA Reg ion 6 official, the SIP revision has not receive d final approval because EPA officials in OECA and OGC believe the Texas regulation allows too many excess emissions. Consequently, the statutory deadline f or resolving NOD issues within 18 months had not been met since the NOD was issued in January 2002. A permitting author ity 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 guida nce on implementing sanctions has not be en propo sed. OAQ PS officia ls stated t hat the un resolve d NOD issue is SIP related and that Texas was require d only to propose a SI P revision within the deadline in the NOD. OAQPS officials believe the deficienc y was re solved 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 SI P rules did not adequa tely address IEUs . Accor

ding to a n OAQPS off

icial, Ha waii had r

evised 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 ac tions to resolve the NOD46 See page 17 of ou r repor t f or a di scus sion

of t he Regi on 5 2001 memora ndum t o Ohio.
46 issue. Officials in OAQPS and EPA Region 9 told us that the issue was resolved and that t he FR noti ce would

be issued shortly . Accor

ding to a Region 9officia

l, 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 indicate d 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 cit ed aga inst Wisconsin’s Title V program in this NOD included (1) not collecting sufficie nt 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 c onditions from prior permits

to Title V p ermits, is suing pe rmits that d

id not cont

ain all applicable requirements (such as I EUs), and including terms in their permits that were not federally

enforceable and lacked orig in of authority. Wisconsin’s NOD deadline for correcting their pr ogram deficiencies is September 2005.
Commitmen t Letters

As discuss ed above , State an d local pe rmitting authoriti es sent le

tters to EP A committing to certain actions that they would take to re solve Title V program implementation issues identified by EPA. I f the issues addressed in the commitment letters were not addressed in a timely manner, EPA could then issue NODs against permitting authorities. We reviewed a ctions taken by New

York, Ohio, and Texas to de

termine t he extent to

which the ir commitme

nts to EPA to resolve Title V implementation deficiencies were met. Except for the issues related to ACCs in Texas and the SB issues address ed in Chap ter 2 of th is repor t, the commit

ments app eared t

o be ade quately

resolve d or the Sta

tes were gener ally taking appropriate actions to implement the chang es. In its commitment letter, Ohio committed to issuing SB guidance and we noted that limited guidanc e had been placed on the their SB form. Howeve r, Ohio SBs still do not contain key elements such as facility

descriptions that include summaries of the operating process es; there fore, w e believ e Ohio SB s need fu rther improvemen

t. Ohio als o committed to continue to work with EPA to improve the SBs. However, Ohio has not incor porated severa l key elements in its SBs r

ecommen ded by Region 5 in its 2001 Memorandum 46 reasoning that “There is no national g uidance, policy, or preamble documentation in either the Clean Air Act or proposed a nd final versions of Part 70 supporting the SB elements listed in the EPA [Region 5] memorandum.” Texas rep orted in it s commitme nt letter that the Sta

te had mod

ified its A CCs 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 loca l permittin

g authorities wit

h commitme

nt letter s which we

did not visit, we did not verify whether the applicable commitments were completed. For examp le, one c ommitment by th e State of Washingt

on requir ed the Sta te to improve monitoring requirements in its permits. Although EPA Region 1047 See f ootnot e 40.
47 officia ls indicat ed that th ey

believe d improve

ments in the

State’s p ermit 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 y et evaluated Washington’s Title V program. OAQ PS could not verify whether the commitmen

ts were a dequate ly a

ddresse d by

the perm itting au thorities because OAQPS rel ied on the

EPA reg ional off

ices to e nsure tha t all the c ommitments 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 re ceived l ittle coop eration from EPA r

egiona l office s. EPA has not issued a rule to address instances when permitting authorities have continuing unresolved deficiencies in their Title V prog rams. As part of the Agenc y’ s corre ctive action plan in response to our Mar

ch 2002 OI

G repor t, 47 EPA drafted a proposed rule to establish the order in which sa nctions should apply for untimely resolution of NOD issues that are required under the mandatory sanctions provision s of Title V . Concer ned that t he Age ncy was not fo llowing t

hrough on its action plan to address this recommendation from the 2002 report, the OI G issued a memorandum to OAQPS in November 2003 and subsequently met with the Agenc y to discuss th eir prog

ress. However, at the time we comple

ted our f ield work in October 2004, this order of sanctions draft rule had not be en proposed.
State Titl

e V Programs I

mproved as a R

esult of N ODs and Commit

ment Lett

ers 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 Stat

es we visi ted have taken ste ps to sign ificantl y impro ve perm it-re lated docum ents, due in part, to th is res olut ion p rocess . Thou gh 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 it s permits b e set for th in its SBs . New Yor

k bega n prepar ing Perm it Review Re

ports for its permits . In a

ddition, th e States w e visited have also improved their permits through this resolution process. For example, severa l States, including

New Yor k and Ohio , chang ed their regula tions to impr

ove their definition of promp t reporti ng of de viations d ue to exce ss emission s; also, bo th States subsequently included cor responding provisions in their permit terms and conditions. Ohio has been improving its permits by inc luding provisions stating the origin of authority

for each permit term and condition.48 The director of OAQPS typi call y si gns off icia l EPA Title V gui dance. Guidanc e refl ects EPA’s pol icy position on a given is sue; however, it is not l egally bindi ng. Guidance differs f rom rules, which must

go through the forma l ru lemak ing proces s i n th e Feder al Reg ist er, si nce r ules are s ubject

to publ ic n oti ce and c omment and must be adh ered to onc e pro mulga ted.

49 EPA regional off

icials provided us with responses from thei r perspectives, as well as rel ated impressions received fro m their respective S tate and local p ermitting authorities.
48 

### Stakeholders Id entified Need s for Title V Gu idance 48

Officials from most EPA regional offices, and other Title V stakeholders, wanted addit ional EPA gui dance r egardin g key Title V perm it el ement s incl udin g: monitoring, SB content and ACC content. Chart 3.2 below summarizes the views of EPA regional stakeholders we contac ted on the adequacy

of EPA’s Title V guidance.

Chart 3. 2: Regional View on Adequacy of Titl e V guidance

Source: EPA regio nal re spon ses to OI G str uct ured i nter views EPA regional officials discussed the adequac y of EPA g

uidance in terms of the range of Title V

progra m issues ad

dressed and the a ctual content. 49 Officials from five EPA r

egions i ndicate d that the

Title V g uidance that EPA ha s issued is beneficial, however they

also noted problems with timeliness and/or the lack of guidance in certain key

areas. EPA regional officials listed are as where they believe Title V guidance is still needed. Officials fr om six EPA regions stated that guidance was needed on periodi c monitori ng, and would hav e been e special ly useful earlier in the Title V implementation process. However, of ficials 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.50 An additional rule rel ated to ACCs was app roved, however OA R is working to correct a subst antiati ve

erro r in wor ding b efore pro mulga ting. Fo r mo re disc ussion of mo nitoring guida nce/ru les see p age 2 1 of this re por t.
49 Officials fro m six EP A regions stat ed that EPA guidance on th e content of S Bs would be beneficial; officials from four EPA reg ions expressed interest in guidance on the content requirements of ACCs. Officials in one EPA reg ion noted that while the y a pprecia ted the Agency ’s hesita

nce to “m icro-ma nage” require ments, the lack of content direction for ACCs and SBs meant that no minimum floor for such con tent was s et. Offi cials in a nother r egion in dicated that this ha s resulte d in significant inconsistencies between States in what is included in ACCs and SBs. They expressed intere st in EPA guidance on content requirements for ACCs and SBs. Acc ording t

o OAQPS off

icials, w hile OAR de clined to

act on iss uing ACC guidance, enforcement off icials in OECA were interested in issuing guidance

. However, to their knowledge, and that of a key OECA off

icial we interviewed, efforts to draft ACC content

guidance in OECA

did not pro gress. Another OECA official told us that inadequate EPA guidance has hampe red the effectiveness of the Title V

progra m. Industry representatives we interviewed indicated tha t they would like to see more consistency in Title V per mits 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 businesse s. They also noted wha t they pe rc ei ve as a l ac k o f e ff

or t o n t he pa rt of

EP A t o p us h f

or na ti on al co ns is te nc y.
EPA Guidance Efforts L imited In R ecent Years

OAR is responsible for developing national Title V reg ulations and guidance and for providing technical assistance on Title V prog ram implementation. OAR guidance has been minimal since the DC Circuit Court of Appeals over turned EPA’s periodic monitoring guidance in its 2000 ruling on the Appalachian Power case. A final rule on umbrella monitoring was promulg ated in January 2004; however, three draft guida nce documents and one draft rule have be en awaiting approval at the OAQPS Division and/or AA for Air and Radiation level since 2002. 50 These dr

aft docu ments are related to proce ssing pr

ogram r evisions, permit renewal application forms, and ACCs. The draft rule a ddresses the order of sanctions that can be applied to permitting authorities if theyfail to correct EPAidentified Title V program deficiencies. Ta ble 3.3 below shows the status of OAR’s issuance of draft rules and guida nce since 2002.50 Table 3.3: Status of O AQPS D raft Rules and Guidance Since 2002
Draft Doc ument Date Submitted Status
Final rule on umbrella monito ring Sept. 4, 2002 Promulgated Jan. 2 2, 2004 Proposed ru le on ord er of sanction s 2002 Cleared OAQPS Division office; with AA for revie w Final rule on 40 CFR Part 70 amendmen ts to AC C req uireme nts June, 2003 Approved by AA; however OAR staff is wo rking to correct an er

ror in w ording
Gui dan ce o n p roc

ess ing pr

ogr am revisions May 17, 2 002 Awaiting OAQPS Division office and AA r

eview
Guidance on permit renew al app licati on for

ms March 26, 2002 Awaiting OAQPS Division office and AA r

eview
Guidance on ACCs August 28, 200 2 Awaiting OAQPS Division office and AA r

eview
Source: OAQPS officials , information provided a s of October 2 004

. In the absence of forma l guidan ce, EPA’ s Title V “

policy ” has, in r ecent y ears, been convey

ed through letters to permitting authorities and responses to citizen petitions. This has resulted in two “guidance” databases: one official, and one unofficial. Official signed guidanc e and policy memora nda are found on EPA’s Technology

Transfer Network (TTN), while letters and other communications that may contain c ase-spe cific de cisions a re avai lable in a

databas e maintai

ned by EPA Region 7. The Region 7 database includes letter s from EPA regions and incorpor ates most, but not all, of the doc uments on t

he TTN lis t. Accord

ing to OAQPS officials, the TTN database is the official source f or Title V guidance; however, stakeholders are also ref erred to the Region 7 database bec ause of the additional information it contains.

To identif y a ll EPA writt

en policy positions on a give

n Title V is sue, one

needs to review both the TTN and the EPA Region 7 database s for relevant information. OAQPS staff provided OIG with a c opy of a docume nt they prepar

ed summarizing the Agency ’s position on a number of key T itle V issues. This document identifies references where E

PA 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 ava ilable on EPA’s public Title V website. OAQPS officials pointed out that even when guidance has be en issued, OAR does not have the ability to enfor ce this guidance. Guidance may provide a structure and fra mework f or EPA re gional o ffices a nd State a nd local p ermitting

authoriti es; however, it is not legally

binding. OAQPS officials stressed that they to do not have the authority to force permittin g authorities to f

ollow EPA g

uidance . Thus, even if EPA issued additional guidance, OAQPS officials expressed conc ern that EPA regional offices and permitting a uthorities would continue to carry out Title V in co ns is te nt ly.51 Challenges t

o Issuing T

itle V Guida nce OAR faces several obstacles to issuing Title V g uidance besides that posed by the legal impact of the 2000 Appalachian Power ruling. OAQPS, EPA regional office, and State officials noted that reaching a le vel of consensus among all of the various Title V stakeholders can be challenging . For example, (1) North Carolina and New York off icials not ed example s of OAR a

nd EPA reg

ional off ices disa greei ng with each other on the correct course of action regarding permit questions; (2) New York officials also pointed out disagreements betwee n the EPA regional office and OECA reg arding

the State ’s efforts to cha

nge ce rtain pe rmit provi sions fro m a reporting to a notice requirement; and (3) environmental and industry g roups have bot h su ed t he A gen cy be cau se t hey d is agr eed wit h Ti tl e V g ui dan ce a nd r ul es. In addition, we were told that issuing guidance is subject to var ious 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 prog ram deficiencies and implementation inconsiste ncies. Suc

h guida nce shor tcoming s make it more diffi cult for i ndustry to develop Title V permit applications and for enforcement of ficials to determine compliance, potentially lea ding to inconsistent environmental protection.


### Conclusions

Various p roblems a nd potenti al proble

ms with spe cific el ements of Title V pe

rmits were ide ntified by officia ls in OAQPS, officia

ls in all 10 E

PA regi onal air

office s, 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 r

enewal s as well a s the on-going inc orporat ion of MACT

require ments into permits, point to a pressing need for grea ter EPA regional office revie w of individua l permits a

nd action to corre ct permit

deficie ncies, a s appropr

iate. Some potentia l areas of defic iencies , such as p eriodic monitoring

and SB an

d ACC content, also illust

rate a need for

more EPA g

uidance on Title V. While EPA regional offic es and pe

rmitting authoriti es are n

ot lega lly r equired to adher e to EPA guidance, such guidance does provide the framework for improving a dequacy and cons istency

, and red uces the need for individua

l EPA regions to dev elop thei r own polic ies on key

Title V iss

ues. EPA g

uidance would also

provide E

PA regional offices with more support for Title V pe rmit review and enforcement efforts . Unless r

esolved, Title V pr

ogram i nconsiste ncies wil l likely

continue to hamper industry and State a nd local agencies’ effor

ts to meet Title V program goals a s permits a

re rene wed for another 5 ye ars. 

### Recommendations

We recommend that the Assistant Administrator for Air and Radiation:

3-1. Promu

lgate t he draf t order o f sanctions rule wh ich provi des notic e to State and local agencies, as well as the public, r egarding the actions that will be taken52 when Notices of Deficiency are not timely re solved by State and local Title V permittin g authorities. 3-2. Provide a document guide on the EPA public website which would assist the public in identifying and loc ating published EPA statements on key Title V progra m issues.

3-3. In co njun ction with EPA R egiona l Adm inis trato rs, jo intl y develop a stra tegy to ensure that EPA regional oversight and r eview of Title V permit adequacy continues beyond the sc

heduled program evaluations. EPA regional review of permits should inclu

de an analy sis of cla

rity-relate d issues a

nd appro priate inclusion of CAM and MACT provisions in any permit rene wals. 3-4. In conjunction with EPA Regional Administrators, jointly coordinate and streamline the review and response proce ss 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, conc lusions, and recommendations in Chapter 3 of the report. We made revisions to Chapter 3 where a ppropriate. EPA sought to clarify

some information, specifically regarding prog

ram evaluations conducted by the regions, and public petition responses. EPA stated that the regions work closely with permitting authorities in conducting air progra m evaluations and also serve as a mediator betwee n permitting authorities and petitione rs during the public

petition pr

ocess. Whi le there

may be reas onable justifications for the more lengthy delays in EPA’s issuance of written program evaluations and public petition responses, we remain concerne d about the timelines s of the Agency ’s action s on these matters. EPA, as a w

hole, shou

ld streamline their issuance and response process with re gard to both program evaluat ion repor ts and publ ic petition respons es. The Agency disagr eed with p arts of our recommendation to issue Title V program g uidance and also our recommendation to provide a document guide to assist the public in identify ing EPA state ments on ke

y Ti tle V issue s. We agr

ee that it may not be nec essary

to issue all guidance now in draft, particularly guidance on permit renewal applica tion forms and processing progra m revisions. However, we believe that guidanc e on ACC content is still needed to provide consistency a mong 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 gene ral public. Such a g uide will b e importa

nt to the pu

blic as Ti tle V fac ilities see

k permit
renewa ls. The Ag ency ’s consol idated r esponse a nd our ev aluation

of that re sponse are in Appendi x F.51 Six State Title V program evaluation reports were provided to us by t he end of our fieldwork. However, only f ive of the re ports addres sed benefi ts r esult ing f rom Title V. See page 41 for addi tional inf ormation on program evaluations.

52 In this compa rison, we assessed the extent that permits included comp liance repo rting requiremen ts, enfor ceab le terms , pub lic partic ipation pro visions, a nd m onito ring, testing, a nd re cord keep ing req uirem ents

. 53 

# Chapter 4 Despite Some Problem s, Title V Has Generally Improv ed Implementati on of the Clean A ir A ct

Available evidence sugge sts that, in general, establishing Title V has improved implement

ing the C AA, and that the Titl e V prog ram has b een succ essful in partiall y me eting mo st of its congress ionally -envisioned goa

ls. In terview s with key offic ials from EPA’s 10 regional offices, the four States we visited, stakehol ders fr

om environmental g

roups, as well as th e results

of five EPA evaluations 51 of State Title V programs, sugge st that – despite implementation problems – Title V has improved the implementation of the CAA. Stakeholders from large companies with many Title V facilities, and industry re presentatives viewed T itle V as a

costly and burd ensome pr

ogram t hat had not achiev ed its intended goals. Although actual emissions reductions have not be en tracked by EPA and insufficient evidence is available to determine whe ther Title V has resulted in cleaner air nationwide, most Title V stakeholders we c ontacted said that significant benefits have been ac hieved as a result of implementing the Title V permitting program. For example, while not an explicit goal of T itle V, a number of stakeholders said that implementation of key Title V provisions, such as requirin g faci lity owners/o perators to annua

lly c ertify compliance with a

pplicabl e clean a ir requir ements, has had the

indirec t benefi

t of redu cing fa cility emissions. Our comp arison of

State per mits issued

prior to T itle V with

federa lly- enforc eable 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 require ments wer

e incorp orated i

nto these permits. 52 However, EPA has not conducted an in-depth study of Title V benefits, nor have data been maintained by EPA that wo

uld allow a

n empiric al analy

sis of thes e benef

its. Also, d

ue to the d

ata limitations and the inability to isolate the impact of Title V on enforce ment as opposed to other Agency

enforcement initiatives, we were unable to dete rmine whether CAA enforcement and compliance was improved as a result of Title V’s implementation, although anecdotal evidence sug gests that many facilities had placed a greater e

mphasis on compliance as a result of Title V.53 Clean A ir Facts is a Congressi onal recor d document tha t provides background information on legislat ion.
54 

### Expected Be nefits of Tit le V

During consider ation of the 1990 CAA

Amendmen

ts, U. S. Senate and H ouse Co mm it te e r ep or ts da te d O ct ob er 26 , 1 99 0, an d O ct ob er 27 , 1 99 0, an d t he Ma y 3 , 1990, Clea

n Air Fa cts 53 identified benefits that Congress expected to be realized from the Title V program. Table 4.1 shows the nine expec ted bene fits from

Title V, as enumerated in the Congressional rec ord.

Table 4.1: Nine Prim ary Benefits Ex pected From I mplementing Ti tle V

Expect ed Ben efit

1 Improve State s’ air pollu tion p rogr

ams due to bet

ter emi ssions i nven torie s.

2 Provi de re source s thro ugh Ti tle V fe es.

3 Provi de a v

ehicle for i mplementi ng the

air t oxic s and a cid ra in pr

ograms.

4 Improve enfo rcement

.

5 Achieve faster compliance.

6 Requi re comp liance certif icatio ns fro m facilit

y ope rator

s.

7 Includ e all the ap plicab le re gulat ory r equir ements i n one

documen t.

8 Provi de re gulat ory ce rtain ty for

source s.

9 Improve public participation.

To analyze the impact of

Title V relative to these Congressional goals, we categ orized the

nine bene fits into r

esults ass ociated

with (1) i mproving States’ a ir pollution programs, (2) improving enforceme nt and achieving faster compliance, (3) consolidating all the applicable requirements listed in one docume nt and provi ding re gulato ry certain ty, and, ( 4) imp rovin g publ ic part icipa tion . Alt hough not an expli cit goa

l of Title V

cited in the Congr

essional record , we also

sought to determine whether emissions reductions or cleaner a ir resulted from implementing the Title V program. This was a subsequent g oal added by the CAA Advisory Committee, which was established to report on the state of Title V implementation.


### Most Stakeholders Cited A necdotal Be nefits of Tit le V

In gener al, benefits cited by

stakeholders varied according to their different perspec tives, wit h environ mental g roups, EPA

headqua rters an d regional offic ials, and State permitting authorities citing multiple benefits from Title V. I ndustry representatives we contacted viewe d Title V as a costly prog ram that has not provided many benefit s in its pre sent conf igurat ion. Due t

o the lack of avai lable evidence, we were unable to dete rmine whether CAA enforcement and complianc e55 was improved as a result of Title V’s implementation, although anec dotal evidence existed that many facilities had place d a greater emphasis on compliance

. Also, the benefits of placing all applicable CAA re quirements in one document and providing regulatory

certainty to fa

cility operators we

re not alway s recognized by stakeholders due, largely, to permit clarity issues (see Chapter 2 of this report). However, representatives from envir onmental groups indicated that Title V has significantly improve d public participation. The results of interviewing key stakeholders and reviewing State Title V prog ram evaluation reports are discussed in greater detail below. The following charts summarize the responses rece ived from EPA regional officials and the benefits identified in EPA’s evaluation reports on State Title V progra ms.

Chart 4. 1: Tit le V Benefi ts Cit ed by EPA Regional Off ici als56 Cha r t 4. 2: Be ne f i t s C i t ed i n E PA ’ s E va l ua t i on Re po r t s o f St at e T i t l e V Pr og r ams



### Improved A ir Pollution Co ntrol Programs

Three a nticipate d Title V be

nefits ci ted in the Congre ssional re cord we re rela ted to improved air pollut ion prog rams ope rated by permittin g authorities, a s follows:

• improved

emissions i

nventori es were

expected to contrib

ute to impr

oved air pollution c ontrol str

ategie s for mee

ting CAA standar ds.

• the colle ction of T itle V fe es were expected to provide

a source of reve nue to permitting authorities sufficient to support their efforts to issue permits, and

• Title V co

uld be a ve

hicle for States to

take ove r administ

ration, s ubject to Federal oversight, of signif icant parts of the air toxics and acid rain progra ms. For examp le, MACT st

andards develope d under the air toxic s progr ams were to be included in Title V programs. Improved E

missions I

nventories Permitting

authoriti es identif

ied improv ed emissions inventories as one of the most signific ant bene fits that they receiv ed from the Title V progra m. State of

ficials indicated that Title V permits have provided a more comprehe nsive 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 re gions cited impr

oved emis sions inve

ntories a s a Title V

benefit . Furthe

r, State o fficial s 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 prog ram as a benefit in four of the five State Title V program evaluation repor ts. For example, an EPA evaluation report on one State Title V program reported that fees collected throug h the State’s Title V program provided a stable funding source and more resources for e quipment and onsite travel. Another State also reported that Title V fee s 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 p ermitting and enforcement sta

ff levels , as well as, provided funds for other related expenses. Increased staff has allowed for more freq uent inspe

ctions, gr eater tim eliness inpermittin g, and greater abilit

y to provide more compliance assistance

. Officia ls in 4 of the

10 EPA reg

ions cited establish ing a Tit le V fee progra m as a benefit. However, none of the State officials in the four States we visited identified the Title V

fee pro gram a s a benef

it to them. Accordin

g to a ke y O AQPS offic ial, “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 assura nce, monitoring, reporting, and rec ordkeeping. Further, since the fe es were based on amount of pollution emitted in a year, the fees provided an incentive to facilities to reduce the ir emissions. There have been instances repor ted where the amount of fees collected by permitting authorities have not been adequate to sustain the cor responding 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 c osts 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 rec ommended 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 tha t, for the 6 States reviewe d, the fe e per ton

of emissions rang ed from a bout $18 pe

r ton in Colorado to $43 per ton in Pennsylvania. Additionally , EPA officials told us then that they believed that insufficient fee revenue ha d 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-r elated requirements, none of the stakeholders we talked with cited the use of Title V as benefic ial in admi

nistering signific ant part s of these progra ms.58



### Improved En forcement and Faster Comp liance

Three a dditional e

xpected be

nefits cited in the Congr

essional record related to improved enforc ement an

d faster compliance, as f

ollows:

• By listing a ll the app licable r

equirements in one

document , Title V pe

rmits would “... provide inspectors with specific information about reg ulated equipment, performance standards, emissions limits, and other operating parameters to facilitate their determination of the complianc e status of ...” the fa ci li ty.

• With greater agreeme nt between industry a

nd EPA, State, and local regulators on the equipment that should be in place, performance standar ds, emissions limits, and

other ope rating parameters, this reduced uncertainty about what applies, where, and when would help Title V facilities achie ve compliance more qu ic kl y.

• S ubmitting periodic compliance reports to EPA and the States, certify ing that the fac ility

complies w

ith all app licable C AA requi rements, or speci fy

ing those req ui rem ent s t hat th e fa cil it y did not com pl y wit h, u nde r se ver e pe nal ti es. It was antic ipated th at Title V sources would be made more

accoun table for their emissions if the facility owners/oper ators were required to identify instances of non-compliance with any applicable requirements.

Title V benefits associated with better enforceme nt and faster compliance could not be defin itively determined beca

use of a l ack of e

mpirical data. However, some stakeholders stated that Title V permits assisted inspectors in the performance of their re sponsibilit

ies and that the re quireme nt to cer tify compliance resu

lted in companie s being m

ore conc erned with their f acility ’s complia

nce. A ke

y Sta te official and an official with a public interest gr oup pointed out that it may be too early to asse ss 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 interpr eted two way s. Increased e nforcement actions may in di ca te th at mo re vi ol at io ns ar e f ou nd be ca us e o f T it le V; co nv er se ly, reduced enforc ement actions may

indicate better c omplianc e and fe wer viola tions due t

o effective implementation of Title V. Improved En forcement Cited By So me Stakehold ers Impr oved CAA e

nforce ment was c ited as a

benefit by o fficial s in 3 of the

10 EPA regions and in 2 of the 5 State Title V progra m evaluation reports. Benefits cited included the abilit y of States to b etter ta

rget th eir enf

orceme nt and to pr

ovide the ir inspectors with more useful information. In one State T itle V program evaluation report, the State indicated that, “I nformation from Title V operating permit progr am is used to target inspections and/or enforcement .” The State

also rep orted tha

t their Title V permit program has improved the implementation of their prog ram by, “ ...59 identifying sourc e categories or ty pes of emission units with pervasive or persistent compliance problems, ...” Faster Compliance Cited By Some Stak

eholders
Faster CAA compliance was cited as a T itle V benefit by off icials in 3 of the 10 EPA reg ions and in

3 of the 5 St

ate Title V progr am evalu ation re ports. We a

lso
saw ane cdotal e

vidence that, in so me instanc es, fast er compl iance w as achie

ved as a result of Title V. T able 4.2 b elow illus trates these bene fits.

Table 4.2: Anecdotal Illustratio ns of Compli ance Benefits From Implement ing Title V Cited Compliance Benefits
State evalua tion repor

ts cited instances w here emissions uni ts needing con trol devices were id entified durin g the Title V

permit issuan ce pro cess.
State o fficial s iden tified instan ces wh ere fa cilitie s made o perat ional chang es to r educe emission s to avoid bein g subj ect to t he Tit le V pr ogram. One industry

representative and o ne EPA region al official said that Title V he lped polluti on preve ntion effort s.
Another State i ndicated in a Title V prog ram evaluation report tha t CAA compliance w

as improved an d result ed in actual emission s redu ctions. One State rep orted that a permit write r found a source with out an app roved Volatile Organic Compounds (VOC) Reaso nable

Avail able Contr

ol Tech nolog y (RA

CT) p lan, which, w

hen co rrecte d, led to a d ecrea se in the source ’s emissio ns.
In another State, a source decreased the ir emissions from appr oximately 2 50 tons per year to 65 tons per year to avoid Title V applicability.
Source : OIG In tervi ews o f State offici als an d rev iews of Titl e V pr ogram e valuation r

eport s. Some State officials indicated that Title V has resulted in facilities becoming more conscious of CAA compliance issues involving their facilities. I n one State Title V program evaluation report, the State indicated tha t compliance behavior has improved as a result of the Title V program. The State r eported:
The following changes in compliance behavior on the part of sources have been seen in response to the Title V operating permitting pro gram: increased use of self-audits, increas ed use o

f enviro nmenta l manag

ement s ystems, increas ed staff

devote d to environmental managem ent, increased resources devoted to environmental control systems (e.g., maintenance of control equipment or installation o f improved control devices), increased r

esources devoted to com

pliance monitoring, an d increased

awaren ess of c omplia nce obl igation s. Ove rall, in dustry i

s payin g more attentio n to environmental issues. In some cases this aw areness was pushed by the Title V compliance certifications and making sure the resp onsible offices know wh at they were signing.

Another State re ported that their T itle V pro gram ha s assisted the State in identify ing comp liance is sues. The report s tated tha

t:
The Title V programhas also been a m eans to bring complian ce issues to light. CDPHE [Colorado Department of Public H ealth & E nvironment] believes that60 potenti al comp liance p roblem

s were encoun tered du ring rev iew of a pproxim ately 40%-60% of the total permits. The compliance proble ms were most often identified prior to issuance of the draft permit and after the final permit was issued

. The majority of these problem s are related to NSPS

, SIP, and mino r NSR requirements. Sources have responded

to these compliance p roblems with increased self-audits, increas ed use o

f enviro nmenta l manag

ement s ystems, increas ed staff

devote d to environmental managem ent, increased resources devoted to environmental control systems, increased resou rces devoted to complian ce monitoring, and better awareness of complian ce obligations

. Annual Co mpliance Cert ifications Focus Att

ention On

Compliance
Officials from 6 of 10 EPA regional office s identified the submission of signed ACCs as a benefit of Title V. Three of the five State eva luation reports indicated that Title V source s providin

g verif ication o f complia

nce with p ermit ter

ms was a Title V be

nefit. State officials reported that sources have spent more time and
resourc es on comp liance ma tters. One industr

y of ficial be lieved th at the ACC required too much reporting. Representatives f rom environmental groups believed that the requirement for ACCs was a benefit of Title V. Our work similarly sugge sts that the se signe d annual c ertific ations ha ve resul ted in a g reater emphasis on compliance.


### Consolidatio n of Requ irements and Regulatory Certainty
Facilities that are large enoug h to be Title V sources are often subject to many differe nt CAA con

trol requ irements , such as t

hose unde

r the haza rdous air pollutant, nonattai

nment, an d acid ra in progr ams. Two b enefits expected to be achieved through the inclusion of all applicable CAA re quirements into each facility’s Title V per

mit were:

• to allow th e public a

nd other s takehold

ers to ide ntify all applic able requirements for the facility , and

• regulatory

certainty f

or facility oper

ators.
The results of our

stakeholder interviews and reviews of State Title V prog ram evaluat ion repor ts indicat e that the benefit s associa

ted with ha

ving pe rmit requirements in one document and providing reg ulatory cer

tainty have bee

n mixed. In g eneral , industry

repres entative s did not ag ree with most other

stakehol ders.
Benefits o f Consoli

dating Req uirements C ited By Man

y Stakeholder

s
Officia ls from 4 of

the 10 EPA R

egions i ndicate d that pla

cing al l the req

uiremen ts in one permit have been beneficial. This benefit wa s also cited in two of the five State Title V program evaluation reports. State officia ls also indicated that Title V has assisted their staffs in their understanding of applicable air pollution control requirements. In a State Title V pr ogram evaluation report, one State repor ted 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, h ow to design

monitoring

terms to as

sure com pliance, and how to write enforceable permit terms. Another State similarly noted that:

Permit writ

ers improv

ed their s kills in de vising mon itoring ter

ms that assu re compliance and writing enforceable permit terms, as well as their knowledge of applica bility cri teria for NS PS, NSR, an d other Cle

an Air Act p rograms. IDEQ [ Id

aho Depar

tment of En vironme

ntal Qualit

y] believes these

skills will carry ov er into its o ther air pe

rmitting pr

ograms. Contrary to the views of othe r stakeholders, industry of ficials indicated that consolidating requirements in permits is an admirable goa l, but that it has not been accompl ished bec ause the requirements for many emissions units at large facilities are subject to frequent chang es, and that these changes are not easily incorpora

ted into Title V

permits. Regulator

y Certaint

y Cited By Most Stakeh olders
Though not identified as an expected benefit in the Congre ssional record, regulatory certainty f

or permitting authorities was often cited as an expected bene fit. Regulatory

certainty f

or facility oper

ators was cited as a benefit by officials in 4 of 10 EPA Regions and 2 of the 5 State Title V program eva luation reports we reviewed. Officials from 6 of the 10 EPA Regions cited regulatory certainty f

or permittin g authorities as

a benef it. This be

nefit wa s also cite d 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 reg

ulatory cer

tainty had been a

ccomplished because regulations cha nged frequently a

nd because of issues associated with permit clarity

. 

### Benefits to Public Partici pation

Improved public participation was a lso a key expected be nefit from T itle V. By requirin g that bo th the per

mit and sou

rce com pliance reports be made a

vailable to the public, it was anticipated that interested citizens would be able to review and help enf orce a s ource’ s CAA oblig ations. The extent of Title V benefit related to public participation cited in our interviews of key stake

holders and State evaluation reports depended on the stakeholde r’s perspec tive. I ncreas ed public

particip ation was

cited as a benef it by officia ls in all 10 of EPA’s regions and by officials from public interest groups. One EPA Region wrote to u s that: Title V provides much-needed public access to the permitting process and transparency in CAA requirements that apply to industry. This has given the62 public an opportunity to be involved in the process of attaining and maintainin

g clean ai r. This has al

so provide

d the publi

c conside rable knowledge about a facility’s operation and its obligation to keep the environment clean.

Offici als fr om ano ther r egion a greed by wri ting: The public comment process has benefitted the public by enabling it to review proposed permits, r

equest pu blic hear

ings, and p etition the

administra tor 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

commen t process

, the publi

c has raise

d releva nt issues th at 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 signif icant 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 detai l which ma

kes it ver y di fficult t

o underst and them u

nless the reader has a detailed knowledg e of the s ource’ s operat ions.


### EPA and Indus try

Views of Title V Differed Regional Officials Saw Substantial Improveme nts In Permits
All 10 EPA regional air offices noted that signific ant improvements have occurred in a number of key

elements in State permitting programs since the implementation of Title V. The recording of all rele vant CAA requirements in one document and the ACC requirement were the most significant improvements identified. EPA regional staff were aske d to rank how successful permitting authorities were with reg ard to six pe

rmit eleme

nts. These

elements included : recording all relevant CAA requirements in one document; requiring reg ular 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 effor ts overall ranged from a low of 9 to a high of 17, with an average of 14.2. Rankings by E

PA regions for post-Title V efforts were significantly

higher, ranging f

rom 24.2 to 29.7, with an average of 27. Average ranking

responses to individual program elements rang ed 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 per mit elements they ranke d as improving the most, recording all relevant CAA require ments in one document and requiring ACCs, were elements that were not required in the NSR or PSD progr ams, or any63 other pe rmitting progra m prior to T itle V. The

y no ted that some pre- Title V pe rmits issued by permittin g authorities ma

y ha ve includ ed one or more of the six permit elements on an indiv

idual bas is, but tha

t there w as no sy

stematic require ment to address these el ements pr

ior to Title

V. EPA re gional o fficial s also note d that a handful of permitting authorities with operating permit prog rams prior to Title V did do an adequate job implementing certain elements, such a s including limited monitoring, reporting, and record ke eping requirements in their permits. Industry Of

ficials Viewed Title V as Co stly and Bu

rdensome The industry repr

esentatives we interviewed represe nted large companies from various i ndustria l sectors with fac ilities loc ated thr oughout the Unite d States. T

hese 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 gene ral, these benefits were larg ely descr ibed as benefit s only

in theory . These r

eprese ntatives b elieved

that the si ze and com

plexity of Title V permits a nd the cha

nging nature o f their a

pplicabl e regu

lations ma

de it impossible to achieve the goals of putting all the requireme nts in one document and achieving regulatory

certainty. The

representatives also said that streamlining requirements was difficult to achieve. Their statements we re generally

followed with a caveat stating that, in practice, the be nefits are not seen because of other factors that make the Title V program a high cost, high burden progra m. They claim ed high finan cial c osts of the Titl e V perm its an d the a dmin istr ative backl ogs caused by pe

rmit modifications and renewals were detriments to the Title V program. In a

ddition, industry officials expressed conce rn over the inconsistencies among EPA regions and State permitting authorities in their implementation of Title V programs and the permitting proce ss. 

### Results of O IG Review of Pre- and Post-Title V p ermits

Our review of a sample of Title V permits in four States included an analy sis of preTitle V permits issued to sources in our sample. All of the sources we reviewed were issued some ty

pe 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 o f the pre -Title V p ermits va ried; how ever none of the p ermits contained a ll the elements required in Title V permits.64 Table 4.3: OIG A naly sis of Pre-T itle V Perm its for Sou rces In Our Sample
NC TX NY OH Total Percent Pre-Title V pe rmit issued 10 10 10 10 40 100% Pre-Title V pe rmit available for revi ew 10 10 8 b 10 38 95% Pre-Title V pe rmit contained the follow ing e lements (of th ose pe rmits available for review):
1. All CAA re quire ments 1 0 0 1 2/38 5%
2. Monitor

ing, testing, r

ecord keepin g 10 9 4 9 32/38 84%
3. Periodic moni toring 9 7 3 8 27/38 71% 4. Annual complia nce certifications 0 0 1 0 1/38 3% 5. Public par

ticipation & ob

jections 0 0 3 0 3/38 8%
6. Terms federa lly enforcea ble a 4 0 3 0 7/38 18% 7. Regular

reporting 6 2 2 7 17/38 45%
Source: OIG ana

lysis of Title V per

mit inform ation

a In some cases, the pre-Title V permits provided were NSR permits. Rules governing NSR permitting are federally enforceable when ap proved in to a SIP. The i nformation in th e table abo ve reflects on ly wheth er or not th e per

mits state d that

they wer e fede rally

enfor ceable on th e face of the

permit

. b Prior permits w

ere not pr

ovided for

two New

York permits. In o ne case, the fil es could not b e located; in the ot her ca se, the

old p ermit fi les ha d bee n pur ged. Generally , the pre-Title V permits we reviewed did not recor d all CAA requirements in one document. They also did not require ACCs or provide for public pa rticipat ion and pu

blic rig ht to object to permit s. The ter ms of the pre-Title V permits were no t explicitly

federa lly e nforce able in mo st cases . Most per mits conta ined p rovis ions for at least some m onit oring, testi ng, and record keepi ng; how eve r, t hey d id not alw ays r equ ire per io di c mo ni to rin g or reg ul ar r epo rti ng. In addition, the application of monitoring, testing, and record-ke eping provisions were not consistent for all requirements in pre-Title V permits. I n general, non-Title V permits issued after the Title V program was in plac e (but before the source receiv ed their

Title V pe

rmit) wer e more c omplete than earl ier per mits. 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 Tit le V per mi ts con tai ned all of t he r equ ire men ts fou nd i n t he p rio r pe rmi ts . In
some cas es, howe

ver, it wa s difficu

lt to track requir

ements fr om the prior permit t

o the Title V permit. For example, in Texas a facility may have one

NSR permit and two or mor

e Title V p ermits. I

t was not po ssible to de

termine i f all the N SR requirements were incorporated without revie wing all of the Title V permits for a source. Our methodology , however, limited us to reviewing one permit per fa cility. In a ddition, in

Ohio, cha

nges be tween the pre-Tit le V perm it and the Title V pe

rmit sometimes

made it challeng ing to compare r equirem ents. Ohio

State off icials provided explanations for these discrepancies upon request.65

Conclusi ons

Despite implementation and oversight problems with Title V permits, legal setbacks, and some industry r esistance, the Title V program has g enerally r esulted in signif icant be nefits. Benef

its have b een rec ognized by Sta te pollution agencies in significantly improving

their knowledge of air pollution sources which they believe has im prove d thei r effor ts to reduce air po llut ion l evels in th eir St ates. Alth ough the adequacy

of compliance certifications is inconsistent among the States, the States have improved enforcement tools as a result of the re quirement that source compliance be certified periodically by a responsible of

ficial 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 applica ble reg ulations, accord

ing to of ficials i n State enforcement offic es.
In a ddition to id

entify ing the s pecific benefit s of Title V , officia ls in all 10 E

PA regions cited significant improvements overa ll 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 reg ional officials were recording all relevant CAA require ments in one docume

nt and the require ment for ACCs . These r

equirements are key factor s in provid

ing all s takehold

ers with t he infor mation ne eded to understand the air pollution requirements which major emitting sources a re subject to, as well as how well they are meeting those requirements.

Recommendations

We recommend that the AA for Air and Radiation:

4-1. Consi der for

ming a st akeholde r advisor y g roup, pos sibly

in conjunc

tion with the CAA Advisory Committee, to solicit input on needed Title V g uidance and rules from sele cted Stat

e and loc al age

ncies, a nd industr

ies or ind ustry associa tions, environmental g

roups and other inte

rested s takehold

ers.


### Agency Comments and OIG Evaluation
EPA agreed with recommendation 4-1 but disag reed with our recommendation 4-2. Upon further consideration, we decided to re move recommendation 4-2 from the final report. EPA Headquarters and regions a greement to continue long-term oversight of Title V implementation, including permit reviews and compr ehensive Title V program reviews, should provide sufficient infor mation to identify Title V areas still in need of improvement. The Agenc y’s consolidated re sponse and our evaluation of that respo nse are in Appe ndix F.54 A ma jor source i s define d in 40 CFR Part 70 a s any s tationary source belonging to a single m ajor industria

l grouping that me ets any

of the f ollowing c

riteria: 1) emits , or has the potential to e mit, 10 tons

per ye ar (tpy

) or more of any hazardous a

ir pollutant (as

defined i n section 112(b)

of the CA

A), 25 tpy

of any combinat

ion of haza

rdous air pollut

ants, or 100 tpy

of any air pollutant; 2) is

located in an ozone nonatt ainment area w

ith the potenti al to em

it 100 tpy or

more of volatile organic c ompounds or oxides of

nitrogen in a

reas cla ssifie d as “m

arginal” or “mode

rate,” 50 t py or m ore in are as clas sified a

s “serious ,” 25 tpy or more in a reas cla ssifie d as “se

vere,” or 10 tpy or more in a reas cla ssifie d as “ex

treme ;” 3) is loc ated in ozone transport re

gions with the potential to emit 50 tpy or more of volatile organic com pounds; 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 classif ied as “serious” and has the

potential to e

mit 70 tpy

or more of PM-10.

66 Ap pendix A 

## Definition of Major Stationary Sources
Passage of the CAA Amendments of 1990 also broug ht new definitions of major stationary sources that varied depending on the ty pe of pollutant, the attainment status of the area where the pollutant is emitted , the sy

nergis tic effe cts of mult

iple airb orne poll

utants, th e ability

of some po llutants 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 mee t or excee d levels s

pecifie d 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 Na tional Amb ient Air Q

uality Standard pollutants

under the Act:

Table A. 1: Categ orization of Major Sourc es

Att ainment Status of A rea Where Source Is Located Potential to Emit (Tons/Ye ar)

Carbon Monoxide (CO) Lead

(Pb) a Nitrogen

Dioxide (NO2) a Nitrogen

Oxides (NOx) Particulate

Matter (PM-10) Sulfur

Dioxide (SO2) a Volatil e

Organi c Compounds (VOCs) Attainment Areas 100 100 100 100 100 100 100

Nonattainment Are as Marginal b 100 100

Mode rate 100 100 100 100

Serious 50 50 70 50

Severe b 25 25

Ex tre me 10 10

North east Ozone Transport Region 50 - marginal 100- modera te 50 - marginal 100- modera te

a The Act

did n ot esta blish addit ional major source classif icatio ns for

these pollu tants b ased o n an a rea’s attain ment stat us. b Nona ttainmen t area s for ca rbon monox ide ( CO) a nd pa rticul ate matt er (PM –10) are cl assifie d as ei ther mo derat e or s eriou s.

The 1990 Act also a

dded new definitions for ma

jor sourc es of haza

rdous air pollutants , gene

rally67

referred to as air toxics. The act listed 188 such air toxics, including the airbor ne emissions of such things as arsenic, asbestos, benzene, dioxin, formaldehy de, mercury , and perchloroethy lene. By definition, any

source i s a major s ource if it emits 10 or more ton s annuall y of any one of the se 188 air toxics, or 25 or more tons of any c ombination of these 188 air toxics. Facilities emitting these 188 air toxics a

re reg ulated un der the N ational E

mission Stan

dards for Hazard

ous Air Pollutants. Additionally, enga

ging in or undertaking ce

rtain activities can cause a source to bec ome a major
sourc e. Thes e general ly invol ve sou rces t hat are subj ect to one or more o f the f ollo wing:

• EPA’s New Source Performance Standards limitations for new sour ces of pollution.

• Prevention of Significant Deterioration provisions or the nonattainment are a New

Source Re

view pro visions for expandin g or ch anging

sources

.

• Selecte d source s with pote ntial to contribute t

o acid ra in proble ms.

• Solid waste

inciner ators.
Accord ing to EPA , over 35 ,000 sour ces in the United Sta

tes have the poten tial to emit

pollutants

in sufficient amounts to be a major source, and thus be require d to obtain a Title V permit. However, about 17,000 sources have chosen to limit their hours of operation, install pollution control equipmen t, or take other actions to av oid being subject to

the Title V

require ments.55 Selection of S tate permits was rand om within the co ntext of certain param eters.
68 Ap pendix B 

## Details on Scope a nd Methodology
Objectiv e 1 To assess the adequacy

of Title V operating permits, we conducted intervie ws with of

ficialsin OAQPS and OECA, representatives from 10 environmental groups and 5 industrial concerns, and key offic ials in all 10 EPA regional offices . The EPA regional officials we interviewe d included air offi ce dire ctors or

manage rs, Title V

progra m manag ers, Stat

e coordi nators, p ermit re

viewers , enforc ement staff, and r

egiona l counsel . We also in

terview ed Title V

progra m manag ers, per

mit writers , permit reviewers, and enforcement staf f in four selected States we visited: New York, North Car

olina, Oh io, and Te

xas. In addition, we reviewed 40 Title V permits; 10 in each of the 4 States we visited. We

create d a struc tured inte

rview form and a d

ata colle ction instr

ument to document the data collecte d and fac ilitate in a naly sis. I nformati on on these

follows.
Structured Interview Form

Based on issues id

entified inour preliminary interviews of key stakeholders, a structured interview form was created for use in interviews of EPA region al officials. This form was sent to region air progra m officia ls in preparation for

interviews via video or telephone conferenc e. The structured interview form

contained questions regarding Title V implementation and oversig ht, regional assessment of permit adequacy , regional assessment of permitting authority progress, the impact of Title V, and the resources available for the T itle V program. In a ddition to responding to the qu es ti on s o ra ll y, 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 Collec tion Instrum ent

In a ddition tothe structured interview form, a data collection instrument was c reated to aid in the State permit review aspect of our field work. Questions wer e developed for the data collection instrumentby research ing Title V guidance and policy document s, and Titl e V issues identifie d in prelimina ry intervie ws and in p

ublicly availab le litera

ture on Ti tle V issue s. Docume

nts used to generate review a

reas and questions included EPA white p apers, g uides to a id the publ ic in reviewing Title V permits available on EPA’s website, the EPA Reg ion 3 Title V permit writer’s guide, and vari ous permi

t training and issue -relate d documen ts. Sample Sel

ection
Due to the large number of permits neede d to create a sample statistically representative of the universe of Title V

permits na

tionwide, and limita

tions on OI

G resour ces, we decided to judgmentally sele ct 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 i dentifie d by OAQPS
, EPA regions, and56 Based on 1 998 State-level emissi ons and rank for CO, NO X, VO C, SO2 and PM 10 (EP A Repo rt

“Na tional A ir Po llutant E mission Tre nds, 1 900 -199 8" ( EP A-45 4/R-0 0-00 2), pa ge 36 ).

69 environmental groups as States with vary ing degrees of problems assoc iated with their Title V permits. Ohio and Texas had received NODs as a re sult of Title V program problems; Ohio, Texas, and New York wrote commitment letters to EPA pledging to addr ess 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 rec eived such NODs and few complaints. Another selection criteria we considered was the relative significa nce of major source emissions on air quality. With the exception of North Carolina a nd Ohio emissions of PM10, the Sta

tes rank in the top 1 5 of emitti

ng State s for sele cted cr

iteria po llutants. 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 (SI C code) according to annual tonnage of emitted pollutants (see Table B.1).

Table B.1: Top Five Emitting Ind ustries (of Criteria P ollutants) I n Each State
New York North Carolina Ohio Texas
1. Electric Servi ces 2. Pho to Equ ip & Supplie s 3. Ceme nt Hydr aulic 4. Elec & Other Ser vices Combined 5. Blas t Furn aces and Ste el Mills 1. Electric Servi ces 2. Paper M ills 3. Wood Furniture 4. Ind ustria l Orga nic Chemicals 5. Pulp Mill s 1. Electric Servi ces 2. Elec & Other Services Combined 3. Blas t Furn aces & Steel M ills 4. Ino rgani c Pigmen ts 5. Primary Aluminum 1. Electric Servi ces 2. Petroleum Refi ning 3. Ind ustria l Orga nic Chemicals 4. Nat ural Gas Liquid s 5. Car bon Bl ack

Source: OIG analysis of data from EPA NET FacilitySIC 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; a nd (2) the next two

large st polluting industries for each State were included

. Step 1 res

ulted in selectin

g three industrie s – electric services, blast furnaces, a nd industrial organic chemicals. Step 2 added another eight industry typ es for a

total of e leven se lected in dustries. Table B .2 lists all 11 selected indust

ries.57 In St ates tha t di d not h ave 10 of the 11 indu str ies sel ecte d, we randoml y sa mpled addi ti onal permi ts from the l ist s provided bythe St ates unti l we had s elect ed 10 permits in eachState

.

58 All but s even Ti tl e V permi tt ing aut hori ti es r ecei ved at lea st int eri m progra m operat ing approva l by 1997 (see EPA O IG Rep ort No. 2002 -P-00008 p .51 and www.epa.gov/air/oaqps/permits/approval). W e started our samp le two years (Ja nua ry 1999) af ter al l pr ogra ms we re approv ed t o ens ure th at th e per mit ti ng a ut hori ti es h ad t ime to get their program s operation al and wo rk through early imp lementation pro blems.
70 Table B.2: Industries Selected For Permit Rev iew
Selected Indust ries for Re view ( SIC- Industry

Ty pe) New York North Carolina Ohio Texas

1. 4911 - Electric Serv ices X X X X
2. 3312

- Blast Furna ces and Steel M ills X X (1) a X X
3. 2 869 -

Indust rial O rgani c Chemica ls, nec X X X X

4. 2621 - Paper M ills Exc Build ing

Paper X X (3) X X (3)

5. 2511 - Wood Household Furniture X X X (1)
6. 2911 - Petroleu m Refining X (1) X (2) X
7. 1321 - Natura l Gas Liquids X
8. 2 816 -

Inorg anic Pi gments X (1) X (1) X (1)
9. 3334

- Primary Alu minum X X (1) X (2)
10. 3 861 -

Photo graph Equip ment & Supples X X (2) X (1)

11. 3241 - Cement Hyd raulic X X (3) X (2) X
Source : State

info on Tit

le V pe rmits by SIC c

ode r eceive d from

NC, TX , OH, a nd NY officials.

a Number

s in ( ) rep resen t the n umber o f facil ities i n a spe cific SIC if thr ee or fewe r. To select the sample of Title V permits from among the selec ted industries, we obtained a list of Title V pe

rmits issue d in each

of the 11 SI

C codes, i dentifie d in Table B.2, for New Yor k, North Carolina , Ohio, an

d Texas. The lists inc luded per mit number , source

name, an d date of permit issuance. After assigning a c hronological number to each permit, the team used a random number generator to select one per mit from each SIC code in eac h State. 57 A total of 40 permits were selected, 10 from each State. The permits had to meet the f ollowing 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 enoug h to be statistically projected na tionwide, a broad range of industries and Title V permits were r eviewed. Our selection methodology allowed for some cross-State comparison of Title V permit content and adequacy among sp ecific i ndustrie s, and it also allowed us to review Title V sources in the large st emitting industries in each State. For each source selected, the final Title V pe rmit, SB, ACC, related enforcement documentation, and the most recent pre-Title V permit were re viewed, if available. Data were c ollected in each State, using our data collection instrument, from April to June 2004.71

Limitati ons
Information rece ived as a result of EPA regional officials intervie ws were based largely

on regional officials’ opinions and experiences with Title V, and gener ally not on in-depth prog

ram analysis. Because of the many

possible technical approaches or methods to controlling and monitoring emissions, certain

aspects of Title V

permits c an be ch alleng ing to as sess. Man y of these approaches and methods are subject to differ ing interpretations. Because of the complexity and
un iq ue ne ss of

pe rm it s, we we re no t a bl e t o d ev el op ex te ns iv e c om pa ri so ns by i nd us tr y. Objectiv e 2

To assess the eff ectiveness of EPA

oversig ht and g uidance , we examined EPA re gion ef forts to review i ndividual permits a nd conduc

t progr am evalu ations ac cording

to OAR guidance

. Copies of FY2001, FY2002, and FY2003 memorandums of ag reemen t betwee n the reg ions and O AR, and program evaluation reports completed by the regions were obtained and reviewed. Testimonial evidence regarding region permit re view ac tivity was obta

ined duri ng inter views with

EPA region s. Responses were compared to the actual memora ndums of agreement to see if they were meeting the agr eements with OAR.

To eval uate E PA res ponse s to p ubli c peti tion s, th e Titl e V pet itio n data base o n EPA R egion 7 's website was revie

wed. The data, la st update d in Octob er 2004 a nd repre senting

Title V pub lic petitions filed from July 1996 to October 2004, were a nalyzed to determine if EPA wa s obligated to respond to these petitions within 60 days, under §505(b) (2) of the CAA. Also, using these data, an EPA re sponse ra

te to public

petitions was calc

ulated a s well as a

n avera ge time of response to the petiti ons.
We also sought to determine if the issues raised in NODs and commitment letters had bee n addressed and resolved by the releva nt permitting authorities. NODs and commitment letters were reviewe d and the i ssues ide ntified in each we re followed up in thr

ee State s we visite d (North Caro lina d

id not rece ive a n NODor iss

ue a c ommit

ment l etter). We

tracked the resolution of the NODs through the FR and contacted OAQPS and E PA regional of ficials when there was not a FR notice available. For commitment letters, we were not able t

o verify c ompletion of all the commitments for the States that we did not visit since the commitments were program imple menta tion i ssue s and

not State r

egu lator y i ssue s res olve d thro

ugh t rack able rule chan ges . 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 databa ses were reviewed. The Tec hnology Tr

ansfer Network

, which contains formal, signed guidance a nd policy memoranda, was accessed via the EPA Title V Permits website. This database contained 70 documents. The other g uidance database that was reviewed was the searchable database found on the EPA Region 7 Air Progra m website, which contains letters and responses to petitions. The Region 7 database c ontained more documents than the Tech nology Transfe r Networ k, with 220

guidance docu

ments stor

ed in the d

atabase . These databases were reviewed to identify the body of Title V g

uidance available. Questions were included in the stru

ctured i ntervie w form, a nd asked during i ntervie ws with EPA

region s, to determine if ther

e was a need for

further EPA guid

ance on specific Title V re lated issu

es.72

Limitati ons EPA issuance of guidance, reg arding the Title V program, has be en impacted by va rious 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 re sponses to public petitions, is more difficul t to track than for mally issued EPA

guidance. OI G staff d

id not have

resourc es to cond

uct a comprehensive f

ollowup on

all over sight an

d guida nce issue s, such as

all permi tting au thorities ’ resolution of all commitment letter issues. Objectiv e 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 cer tain elements of the CAA were met both before and a fter the Title V program was implemented. We also asked reg ions to provide specific examples of any benefits experienced as a result of the Title V prog ram. In addition, we interviewe d representatives from key stake

holder groups including OAQPS, OECA, permit writers/reviewers from selected State per mitting a uthoritie s, environmental g roups, an d industry repres entative s. Using

the data collection instrument, we also reviewed actual permits from a se lected number of States and compared their contents and requirements to pre- Title V State permits, where available.
Limitati ons No empirical evidence was available fr om 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 f

ieldwork from Sept

ember 20 03 to Octo

ber 2004 . All work

was done in accordance with the Government Auditing Standards , issued by the Comptroller Gener al of the United Sta

tes.
Prior Audit Cov

erage Government Accountability Off ice

• Air Pollution: EPA Data Gathering Efforts Would Have Imposed a Burden on States - GAO/AIMD-95-160, Aug ust 1995

• Air Pollution: Status of Implementation and Issues of the Clean Air Act Amendments of 1990

- GAO/RCED-00-72, April 2000

• Air Pollutio n: Emissio n Source s Regulate

d by Multip le Clean A ir 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 Facilitie s - GAO-01-46, April 200173

EPA Office of Inspec tor General

• EPA and Sta te Progre ss in Issuin

g Title V Pe

rmits (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 200374 Ap pendix C



### Observa ti ons on Stat ements of Basi s and Annual Compliance Cert if icat ions I n Four Stat es Revi ew ed

Statements of Basis
New York
Up until De cember

2001, New

York did not prepa

re SBs or equivale nt docume

nts for the ir permits. In response to a public petition, New Yor k issued a commitment letter to EPA dated November 16, 2001, in which it agreed to prepa re a document called the Permit Review Report for each Title V permit. Permit Review Reports are New York’ s version of SBs, and were prepare d 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 u

nits, and c ontrol de

vices, ( 3) an expla

nation of why the sourc e is subje ct to Title V, (4) the attainment status of the area where the facility is located, ( 5) a summary of applica ble requ irements , and (6)an explana tion for a pplicabi lity

determinations. One of the Pe rmit 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 de cisions. The other two Permit Review Reports simply indicated that reg ulations were the basis for periodic monitoring decisions without providing any spe cific explanation.
North Carol

ina North Carolina prepared I nitial Title V Air Permit Application Reviews (Application Reviews) for the 10 permits we reviewed, which were c onsidered 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 Applica tion Reviews provided an explanation as to why the fac ility needed a Title V pe rmit. 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 a ttainment status of the areas where the fac ilities were located, though we were told by State officials that North Car

olina did n

ot have a ny a reas of non-atta inment at t

he time the

permits w ere issued. All 10 of the Application Reviews provided a summary of applicable requirements. For eig ht of the permits, t he corr esponding

Applicat ion Review s explaine d the reg ulatory applica bility determinations. Exc ept for one instance, the A pplication Reviews

provided the basis for per iodic monitoring decisions.
Ohio
Following the issuance of the Decembe r 20, 2001, memorandum from EPA Region 5 to Ohio on SB content, Region 5 informed a public interest gr oup in a petition response that Ohio had committed to working with the Region to improve their SBs. However, the SB s completed for the75

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
resourc es should b e devote d to prepa ring SB s. These

officia ls believe d that the ir resou rces sho uld be used in stead to c omplete their unfin ished per mits and tha

t much of the same in formation 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 identify ing the major pollutants, and (3) a summary of applica

ble requirements. Nine of the SBs included an explanation for the re gulatory applicability determinations. Two of the nine SBs prepared for the permits with monitoring requirement s provided t he basis for p eriodic mon itoring deci sions. Ho wever, none of t he SBs provided an adequate description of the fac ility, the manufacturing process and the attainment status of the area where the fac ility is located.
Texas

Texas ame

nded thei r regu lations to r

equire SB s for the ir Title V permits in

response to an EPA NOD issued on January 7, 2002. Texas prepa red Technical Summaries for the six permits we reviewed that were issued p rior to 200 3 and SBs for t he four 2003 p ermits. W e reviewed the S Bs and Technical Summaries for 10 permits. The Technica l Summaries provided a description of the facility and the ma

nufactu ring pr ocess an d also provided summaries of emissions, emissions u

nits, and control devices. The Technical Summaries g enerally pr ovided an explanation of why the sources were subject to Title V and sometimes indicated the attainment status of the a reas where the fac ilities we

re loca ted. The Technic al Summari es did not provide a summary of applic able requirements or an explanation for regulatory applicability determinations. Fur ther, the Technical Summaries did not provide a basis for periodic monitoring decisions. However, Te xas’ SBs were an improvement over Technical Summaries. These SBs provide d (1) descriptions of the facilities and manufacturing processes, (2) summaries of emissions, emissions units, and control devices, (3) explanations of why the sourc es are subject to Title V including charts of the emissions thresholds for defining major sources, (4) the a ttainment status of the areas where the facilities are located , (5) summa

ries of a pplicabl e requir

ements, a nd (6) expl anations

for appl icability determinations. Two of the f our SBs pr

ovided the

basis for periodic monitoring

decision s.

Annual Compliance Certifications
New York

All of the New York ACCs we reviewed met the 40 CFR Part 70 re quirements. All 10 of the compliance certifications addressed the g eneral terms and conditions in the permits to vary ing degrees. The individual terms and conditions for the emissions sources were identified in the ACCs. Howe

ver, g eneral ly, we belie

ved the A CCs we exami

ned in Ne w York we

re more complete than those

we examine d in the oth er thre e States.
North Carol

ina
The seven North Carolina ACCs we reviewed met the applica ble requirements of 40 CFR Part 70. ACCs were not yet due

from three Title V permitted facilities since their permits had been issued59 Publi c Cit izen , 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 ter ms and conditions. Prior to FY 2004, the State required the facil itie s to re port o nly on com plian ce wit h the m onit oring, report ing, an d recor d keep ing requirements in the permits. The facilities were not require d to report on compliance with the gener al terms a nd conditi ons listed i

n the per mit. According to

officia ls in North

Carolina , EPA Region 4 officia ls reque sted that a

ll States in

the Reg ion requi

re their facilitie s to addre ss compliance with the gene ral term s and conditions in A CCs. In FY 2004, three of

the seve n ACCs addressed compliance with all of the permit requirements, including the general terms and condition s. Accor

ding to N orth Caro lina offi cials, so me confu sion still re mained a mong the ir permitees regarding the ir new requirements.
Ohio
All of the Ohio ACCs we reviewed met the 40 CFR Part 70 requirements. Ohio does not requir e identifying the individual g eneral 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 condition s. All of th e Ohio sou rces re quired to

have sub mitted an A CC submitted their ACC in a timely manner. We noted one instance when the certify

ing official for the source did not understa nd the mea

ning of c ontinuous a

nd intermi

ttent comp liance. A note att ached to the ACC stated, “The facility

submitted the report. This is the first year that the facility is repor

ting. Although there are many

‘I’ for intermittent - the fa cility did not have any

deviations in the permit...” As explained in our report, there was confusion as to how the terms “ intermittent and continuou s complian

ce” shou ld be inte rprete d. The Sta

te offic ial we int

erviewe d said tha

t it appear ed that th e offic ial did not u ndersta nd the for m and that

the State would wor

k with them

. Texas

In e arly 2002, Texa s sent a c ommitment le tter to EPA

Region 6 officia ls promisin

g to modif

y th eir ACCs to clarify how mater ial 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 a s complete as those received by the other States we visited. The ACCs submitted by facilities in Texas consisted of a cove r form that addressed the overall compliance with the terms and conditions of the permits and included 6-month deviations reports . The indiv

idual per mit terms a

nd conditi ons are n

ot identif ied 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 oc curred

in the pas t ye ar. The

deviation report s are re quired to be submitte d semiannually in acc ordance with the provisions found in the general ter ms and conditions section of the Title V permits. The deviation reports are used to identifymonitoring, reporting and recordkeeping deviations along with site-wide deviations associa ted with the general terms and conditions. The ACCs do not identify whether ther e 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 Cour t ruled tha

t EPA had the discre

tion to approve the ACCs re ceived by Te xas. 59

Table C.1 shows the

differe nces bet ween the four Stat es discus sed abov e as to how permit te rms77

and conditions are addressed in compliance cer tifications. As noted in the chart, the content of the annual certifications differed substantially by State.

Tabl e C.1: Pe rmit Terms an d Conditions From Permit

s Reviewed in F our States
State Individual general terms and

conditions identif

ied in A CCs? Individual terms a nd

conditions for emissions sources iden tifie d in ACC s? a
New York Yes, in all certi fications Yes
North Car

olina Beginning in 2004; 4 o f the 7 certifications ide ntified at lea st one general te rm and condition Yes

Ohio Reported d eviations on ly Yes
Texas Facilities repo rt deviatio ns in the attached dev iation repo rts per Tex as officials Reported d eviations on ly in attached deviation report

a The te rms and condi tions w ere mon itorin g, rep ortin g, and recor d keep ing r

equir ements.78 Ap pendix D 

### EPA, St ate, and Local A gency Rol es and Responsibi li ti es in I mplementing Ti tl e V

EPA Promulgates Rules, Prov ides Guidance, Oversees Authorized Programs EPA is responsible for promulgating reg ulations; establishing the minimum elements of a Title V permit program; reviewing, appr oving, and overseeing permit prog rams; reviewing permits issued by the State and loca

l agencies; and providing g uidance and technical assistance to State and local agenc ies, indus try , and othe rs to fac ilitate a

chievement of pr

ogram goals. EPA i s also re sponsible for imple menting permit pr ograms for any State and local ag encies t

hat do not i

mplement t

heir own prog rams. While State and local agencies primarily implement the Title V program, EPA has an important oversig ht role. EPA revie

ws and ap proves e ach State

and loca l agenc y’ s operat ing per mits pr og ra m; ov er se es im pl em en ta ti on of th e p ro gr am ; r ev ie ws pr op os ed pe rm it s; an d, if ne ce ss ar y, objects to improper permits pr

oposed. I n addition

to approv

ing State or local agenc y pr ograms , EPA is responsible for ensuring that State and local ag encies administer and enforce the prog rams. If EPA finds a State or local ag ency is not adequa tely administering a

nd enforcing a part of the Title V program, EPA is to notify the State or local agency of its finding. If the def

iciencies are not corrected, EPA can apply sanctions, withdraw the program, or administer a fe deral program in that State. Within EPA’s OAR, OAQPS is responsible for developing national regulations and guida nce for Title V an

d providin

g techn ical assi stance t

o EPA regions and the States. Regions are re sponsible 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 Me morandum of Agreement (MOA) identify ing, among other thin gs, the T itle V ove

rsight a ctivities that EPA r

egions a re to per form. States, Local Ag encies A uthorized to Impleme nt Title V Once approved by

EPA, State and local agencies are r esponsible for establishing and implementing their pe rmit prog rams, issu

ing per mits to major

sources of air po llution loc ated with in their geographical jurisdictions, collecting fees to cover the cost of the progr ams – including the initial costs of issuing permits to sources – and ensuring that sources comply with their permit limits. Under th e CAA, Sta

te and loc al age

ncies tha t do not ade quately

implement

the Title V

permit progra m may lose their authoriza tion to con

tinue adm inisterin g the pr ogram. There are 112 State and local ag encies in the United States approved by EPA to administer the Title V pe

rmitting progra m. In s ome State s, local a gencie s are re sponsible

for imple menting air pollution control programs, such as Title V. To have an approva ble program, State and local agencies must be able, through f ees, to recoup all reasonable costs of deve loping and administering the program, including the reasona ble costs of emission and ambient monitoring, modeling, and reviewing and acting on per mit 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 pr

ovisions that must be part of a Title V program before EPA will approve it include:79

• Monitorin

g and r eporting require ments. • Authority to terminate, modify , or revoke and reissue permits for cause

. • Authorit y to enforc e permits , permit f ee provi sions, and

the requ irement t o obtain a permit. • Public notification and opportunity for comment for every ne w permit and when permits are renewed or significantly

revised. • The re quireme

nt that sou

rces pr ovide emi ssion rep orts to the ir permit ting aut horities a t least semi-annually and c ertify complianc e 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 loc al agencies that are not requir ed by the Act and are not federally

enforceable.80 Ap pendix E 

### Stat us of EPA Regi onal Ev aluat ions and

Notic es of Def ici encies

Tabl e E.1: St

atus of EPA

Regional Ev

aluations of Title V Pro grams Region Number of

permitting authorities t

o be evaluated t hrough Sept. 30, 200 6 Number evaluated through December 31, 2004 Number with reports issued Number of

completed evaluations without written report as o

f December 200 4
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 p

rovided by EPA OAQPS and regio n officials

Table E.2: Status of T itle V Noti ces of Defici ency - October

2004 a Permitting authori ty NOD issue date Date of pr oposed approval b Date of f inal approval b
Indiana 12/11/01 5/16/02 5/16/02 Michigan 12/11/01 6/23/03 11/10/03
District of Colu mbia 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 Agen cies in California 5/22/02 10/8/03 11/21/03

Wisconsin 3/4/04 Resolution Pen ding Resolution Pen ding
Source: Data p

rovided by EPA OAQPS and regio n officials

a Listed in chro nological or der from NOD issue date.

b The propose d and final approva l dates are the dates EPA pr oposed or issued final ap proval of the action taken by the permitting authority to correc t the last deficiency in the NOD.81 Ap pendix F



### Co ns olid ate d Ag en cy R es po ns e to Dr aft R ep ort a nd OIG Eval uati on

UNITE D STA TES ENV IRONMENTA L PROTECTI ON AGENCY WASHING TON, D.C . 20460

OFFICE OF AI R AND RADI ATI ON

MEMORANDUM

SUBJECT: Response to Draft Report No . 2003-00 0339 “Subs tantial Ch anges Needed in Implementatio n and Oversight of Title V P ermits If Program Go als Are To Be Fully Realized”

FROM: Jeffrey R. Holmstead

Assistant Administrator

TO: J. Rick Beusse, Director for Program Evaluation, Air I ssues

Office of the I

nspector General I am responding on be

half of my off

ice, the Regional Offices, and the Of fice of Enforcement and Compliance Assurance (O ECA) to the Office of the I nspector General’s (OI G) draft report of findings and rec ommendations concerning State Title V permit adequacy and EPA’s oversight. We appreciate the insights the re port provides in addressing the question: “Are Title V permits c learly

written a nd comple

te, and is the perm itting pr ogram as a whole

achievi ng its mandate d goals?” a

nd agr ee with y our findi ngs that the prog ram coul d benefi

t from impr

ovements to permit c ontent in s ome are as. While the Agen cy has been - and con tinues- r eviewing permit content and program adequac y, we ag ree with the OIG’s f

indings that we can do more. Along these lines, we are proposing to expand the use of our stake holder workgroup as a means of identify ing wha t is workin

g (and what is not

working ), to stre amline the

petition r esponse p rocess where feasible, and to develop opera ting plans that combine oversight with permit reviews and evaluations. In ge

neral, we disagree that g

uidance documents offer solutions to Title V program implementation issues, especially now that a decade has passed since prog ram approvals and because almost all permits have been issued. We believe it is better to work with our Reg ional Offices on improving the implementation of the Title V progr am when specific issues arises with a gi ve n p er mi tt in g a ut ho ri ty.

Attached is our coordinated response, which includes a pa ge-by -page editorial comment section and a section with the OIG dr aft recommendations and our responses. I f you have a ny questions about this response, please contact Ray Vogel at 919-541-3153.82

Attachme nts

cc: Beth Craig Stev e Page Bill Har nett Bill Wehrum Scott Mathias Rick Beu sse Jan Cortelyou L ee Kay Holt Laurie Trinca Scott Voorhees Ray Vog el83



### Substa ntial Cha nges Needed in Implementati on and Ov ersight of Tit le V Permits If Program Goals Are To Be Fully Rea lized

Comm ents on Report Cont ent Report Pages 6, 39 and 79: EPA Comment : The numbers on pages 6 (Chapter 1), 39 (Cha pter 3) and 79 (Appendix E) are now out of date. The updated numbers through the end of 2004 are:

T able E-1: Status of E PA Regio nal Evaluat ions of Titl e V Program s

Region Number of Permitt ing

Aut horities to be Evaluated T hrough Sept. 30, 200 6 Number Evaluated through Dec. 31, 2004 Number with Reports Issued Number of

Completed Evaluations Without Written Report as of December 200 4
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 : Af ter the Age ncy pr ovide d its re sponse

to our draft r epor t, an OA QPS o fficia

l notif ied us th at ther e was an addit ion error i n the a bove Table. The correct ed infor mation is reflected above. OIG Response: Table E-1 and relevant references to the table have been c hanged in the report based on information provided by OAQPS. Report Page 15: EPA Comment : Regarding incorporation by reference (I

BR), while Region 6 agree s IBR can lack clarity and make

the review of permit conditions time consuming, EPA believes I BR can be a very ef fe ct iv e t oo l w he n u se d p ro pe rl y. Report Pages 15-17: The report states that EPA officials in 6 out of the 10 regions per ceive the lack of nationwide guidance result in inadequa te statement of basis (SB). Environmental groups also rep orted pr

oblems wit

h SB in citi zen petitions. EPA Comment : The report does not explain that EPA investigated the problems, although in the following sentence the report corr ectly states that SBs ha

ve improved. OIG Response: In Chapter 3 of the report, we noted that SBs in Texas improved and that New York started84

preparing Permit Review Reports as a result of NOD and commitment letter resolutions between EPA and the

permittin g authoritie

s. Report Pages 15-17: The rep ort state s that EPA’ s position is that per mitting a uthoritie s could obtain information on the contents of acceptable SBs by reviewing prior court case de cisions and EPA’s response to public petitions. However, not all . . . officials in EPA Regions may be aware of applic able cou

rt decisi ons. EPA Comment : Because EPA responses are public doc uments, noticed in the FR and available on EPA’s web page, it seems an unnecessa ry eff ort to rewrite them in additional guidance documents. In fa ct, citize n group s such as N

YPIRG make use of our SB -relate d policy

statemen ts in their lawsuits. The same objective could be accomplished more eff iciently by

promoting the reading of pertinent documents, and by providing opportunities during conference calls to describe and discuss these decisions, which the Agency currently doe s. This is explained in our
recomme ndation r esponses

. 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 permi tting offic ials. As sho wn in our re port, the current situ ation has re sulted 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, State

s are relu ctant to fol

low guidanc e that is no t issued na tionwide or through a ru le. Thus, in addition to the inefficiency noted above, lack of guidance may allow ineffective actions on key permit pro visions. I

n their re sponse to o ur draft re

port regar

ding their SBs and the

applicabi lity of the Region 5 guidance on SBs, Ohio EPA responded to us that the Region 5 memorandum dated Decemb er 20, 200 1 only inc luded a lis t of desire d eleme nts and not r

equired e lements. They also wrote “Ther

e is no nati

onal guidan ce, polic

y, or prea mble doc umentatio n in eithe r the CleanAir Act or proposed and final versions of Part 70 supporting the SB elements listed in the EPA
memoran dum.” W

e continu e to belie

ve that on e docume

nt that provides thes e eleme nts 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 wha t constitu tes an adequat e SB. EPA Comment : This sente nce is misl eading , first, by refer ring to t wo docume

nts as the only EPA guidance documents, and second, by minimizing the importance of guidelines on the contents of SBs, foun d in a numbe

r of EPA pe

tition res ponses. OIG Response: The wording in the report was modified. Report Pages 15-17: The report recommends issuing guidanc e (or a rule revision?), citing concerns that the lack of nationwide guidanc e 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 re sponses to

citizen pe

titions, EPA

expects th at “[e]leme

nts included in these r eports ma y di ffer, d epending on the ty pe and c omplexity

of the fa cility .” EPA85

interprets that, in general, SB ought to conta in, among other information, a list of any thing that deviate s from a si

mple rec itation of

require ments, an d in general sho

uld draw attention to items that would be the highest priority for EPA and persons reviewing the per mit, such as new conditions. In its responses to petitions, EPA has also explained that there are cir cumstances 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 ba sis 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 standar

d. Also, in a response to a petition on the Seminole Ro ad Munici pal Solid Waste L andfill , EPA stated that the regulation does not require that the SB conta in the facility’s
co mp li an ce hi st or y. OIG Response: We noted more inconsistencies in the e lements 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 rep ort state s, in part , “EPA disa greed with monitoring concerns r aised in public pe titions ag ainst the N ew York a nd Ohio pe

rmitting progra ms, stating

that while

they would watch for individual problems in permits, overall the programs included a dequate monitoring and met the minimum requirements of 40 CFR part 70.” EPA Comment : The Reg ion (and u ltimately , the Admin

istrator ) did not a

lway s disagr

ee with monitoring issues raised in New York petitions against individual permits and, in fact, g ranted such peti tions in some

cases. OIG Response: The sente nce refe renced a bove discusses pet itions spec ific to ove

rall Title V p rograms, n ot 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 conce rn about lack of completeness in Annual Compliance certifi cation, a

nd please include a refer ence to t he Octob er 22, 19 97 pream ble to Par t 70 revis ions - Complianc e Certif

ication Re quireme

nts (62 FR

54936) wh

ich allow s the fac ility

owner tocrossreference the permit or pre vious reports to identify the var ious information elements required in a certifi cation. Also, the pr eamble s tates “T

his provis ion allows

the actu al certi fication

to be a short, concise compliance statement that is not a burden by restating detailed information that has already been provided.” Therefore, it has be en determined that a short and concise compliance state ment meets minimum legal requirements. OIG Response: In the re port, we no ted that the

short and c oncise c omplianc e stateme nts meet l egal requ irements and made reference to the preamble to Part 70. However, we also note that not all permit terms and condi tions, such as the ge neral ter ms and con ditions, ar

e specif ically ad dressed i n all ACCs throughou t the coun try. In ad dition, som e States r

equire th at the fac ilities in th eir State a ddress 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 g uidance, 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: Word ing was cha nged on pa

ge 46 to ind

icate tha t this issue

was not com

pletely r esolved because there is still an issue with SB guidance.

Report Pages 39,40: EPA Comment : In the discussion on progra m evaluations, the OIG made no distinction about the sty le, conte nt or for mat of wr itten rep orts betw een diff erent Re gions or

how that ma

y pl ay into timelines for completion. At least one Region has taken a position that it will create a re port that
accura tely reflects not only

the Reg ional vie

w of their State and Loca l air prog rams but a

lso reflects the State and Loc al opinion of their program. To that end, the Region provide s the State or Local age ncy the opportunity

to comment on the draft Regional report, just as the OI G provides EPA the opp ortunity

to commen

t on its draft repor

ts. Regions spend a

signific ant amoun

t of time prepar ing the r eports in the belie f that a w ell-conducted e valuation will ser

ve as an a ppropria te baseline and serv e as a blu

eprint be tween EPA

and the Sta

te/Lo cal ag encies w

ith respe ct to targeting areas on whic

h to focus the Agency ’s attention. The Regions have received ve ry positive feedback to date from the states evaluate d and have committed to develop an on-going e valuation process that will continue after the initial evaluations. Region 4 reque sts that the report acknowl edge th

is. OIG Response: We re main conc erned ab out the slo w complet ion rate of

program e

valuationreports. H

owever, 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 betwee n the state

permittin g authority

and the c oncerne d citizen or citizens’ group. Sometimes, as a result of a Region’s ef forts, a State is willing to revise a permit before receiving an official EPA determination. Althoug h our information is anecdotal, it appears that open communication between involved parties has helped fac ilitate resolution in some cases. Very few citi zens’ gr

oups have actually followed through and file d lawsuits

involving

untimely response s to petitions. OIG Response: While some regional offices may have facilitated informal communications between permitting authoritie s and petit

ioners, th e delay, or absenc e, of offic ial EPA re sponses to

petitions h as 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 off icial 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 a

t least part of their time reviewing title V petitions and there is one GS-15 attorney super

vising 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 respondin

g to public

petitions m ay be a hig

h priority w ithin some

EPA regio ns, the ov

erall response rates, as we ll as interviews with EP A officials

, indicate that petiti

on respon se is not a high priority within EPA as a whole.

Report Page 42: EPA Comment : The EPA has prepared a draft F ederal Register notice which identifies re solutions 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 rep ort state s on pag e 42 “However, N OD defic iencies remain in

Texas, Hawaii, and Wisconsin...” and on page 43 “NOD issues ha ve been resolved with all States except for Texas, Hawaii, and Wisconsin...”. EPA Comment : Please update the report to reflect that State of Ha waii has corrected all of the deficie ncies ide ntified in the NOD. Under th e proce dures out lined in 40

CFR 70.10(

b), the Sta

te had 18 months to correct the deficiencies identified in the NOD. Working closely with the EPA, Hawaii adopted regulations that addressed a ll of the identified deficiencies. The adopted regulations were signed by the Governor of Hawaii on November 4, 2003 and be came effective on November 14, 2003. All of the deficiencies have be en corrected by the State and all that remains to be done is for Region 9 to issue a FR notice proposing to appr ove Hawaii’s actions. Since the State’s pro gram has been revi sed to correct all of the def iciencies i n accordance wit h 40 CFR 70.10(b), Region 9 believes that the refere nces 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 h as not yet

issued its p roposal to a

pprove th e State’

s actions a nd allowed

an opportu nity 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 clar ity, monitoring

and prac tical enf orceab ility 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. I t is difficult to discern whether certain issues ap ply to only one perm

itting au thority, or whet

her they apply to all permitting authorities listed in that Region. It would be c learer if the table included distinct88

ro ws fo r e ac h p er mi tt in g a ut ho ri ty. 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 p ermits ide

ntified by region s. EPA Comment : Indiana is noted as having a lack of sufficient periodic monitoring requirements. This should be removed as an issue for I ndiana. Although Region 5 noted to the OIG that it had found some monitoring issues in permit revie ws, the Region did not identify a ny 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 ove rly broad conclusi on and sho

uld be re moved. Re gion 5 no ted to the OIG that, in the

past, some

Minnesota permits have contained inadequate periodic monitoring. H owever, this was not considered a significant problem in their Title V program. Curre ntly, the Region has not found this to be a prevale nt issue in M innesota

Title V pe

rmits. OIG Response: The paragraph leading into Table 2-3 acknowledges that regions believe the majority of permittin g authoritie

s include adequate monitoring

provision

s in their pe

rmits. Howe

ver, we believe it is important to identify the types of problems that have been found through region permit re views and oversigh t. To addre

ss Region 5 's concer

ns, we del eted the referen ce to “periodic ” for Indian a, and revised the ta ble to inc lude the p hrase “in so me permi ts.” We also revised the table to include

the phrase

“in some pe

rmits” for M

innesota. We b elieve

this should clarify to the reade

r that the p roblems a re not wide spread with in these S

tates.

Table 2-8: Practic al enfor ceabilit y pr oblems ide

ntified by EPA reg ions. EPA Comment : India

na is iden tified as needing anti-cr edible e vidence (ACE) bus ter lang

uage in permits. This issue has been resolved and should be removed from the table. I ndiana now includes an ACE bus ter lang

uage c ondition in

each pe rmit. Michiga n is identif

ied as la cking F ederal

enforc eability . Althoug

h Region 5 did note t

his in its talking points to the OIG, there was no ba sis for this statement and it should be removed. Region 5 's talki

ng points to the OIG note tha

t, in general, Mic

higan' s permits a

re prac tically enforceable. OIG Response: We revised Table 2-8 to include the update d 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 Recomme ndations and EPA Responses

Recommendatio n 2-1. Dev elop and iss ue guidance

on annual complia

nce cert ification c

ontent which requir

es respons

ible offi cials to ce

rtify compl

iance with al

l applicab le terms and conditions o

f the permit.
Response : Three R

egions a gree w ith the re commenda

tion to pre

pare g uidance and a fou rth would also

agree if the re sulting g

uidance were pr operly focused and spec ific in na

ture. A f ifth Region noted that some States cannot go bey ond EPA rules and therefore, if any thing is needed, it must be done by rulemaking . They did not express an opinion on the appropr iateness of rulemaking on this issue.

OAR disag

rees wit h the rec ommendat

ion that ru

lemaking guidance is nee ded to clarify tha

t 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 identific ation of e ach per

mit deviat

ion – sourc es experi encing deviations from the ir 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 requireme nts and their required methods), other means (for example, compliance determination methods used voluntarily ), the compliance status (including identification of permit deviations) and other f acts required by

the permitting authority. OA R 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 re quired information to be cross reference d from the perm it or prev ious reports. I ssuing ne

w guida nce at th is late da te may undercu t existing St

ate programs, especially

those that are stricter than requirements in guida nce. There is little or no evidence of a fundamental problem with annual complianc e certifications. Please elaborate on the widespread problem that would be correcte d 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 nation al guidanc e or a rule on ACC cont

ent should

be issued to maximi

ze the ef fective ness of the Title V program. Region and State officials indicated that as a result of Title V, they have seen gre ater com pliance a wareness

by permi ttees whic

h may be d

ue, in larg

e 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 resource s devoted to environmental control systems, increased resources dev oted 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 regio ns 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 p ermittee

s certify o nly to overall c omplianc e with the p ermit and t o identify any dev iations. The

differences in State requirements on ACC content may also place increase d pressure

on those St

ates that h ave 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 one60 EPA has described the necessary and suggest ed comp onents of a stat ement of basis in numerous

previous ly i ssued t itl e V orders respondi ng to ci tize ns’ v eto peti tions . See, e.g. , In t he Matter of

Consolidat ed Edison Co. O f NY, Inc. Ravenswood Steam Plant, Petiti on No. II-2001 -08, at pages 39-45 (Sept. 30, 2003); In the Matter of Port

Hudson Operation Georgi a Pacifi c, Peti tion No. 6- 03-01, at pages 37-40 (May 9, 2003); In th e Matter of Doe Run C ompany B uick Mill and Mine, Petition Number VII-199 9-001, at pages 24-26 (July 31, 2002); In the Matter of Los M edanos Energy Center, at pages 9-13 (May 24 , 2004).
90 which would

require l ess conte nt. We believe the effec tivenes

s of ACCs would

be reduc ed if ACC comprehensiveness were lessened due to pressures from industry on a nationwide basis.

Recommendatio n 2-2. Issue the draft r

ule regard

ing intermittent

versus continuous monitoring as it r

elates to a

nnual complianc

e certif ications.
Response : EPA agrees with this recommendation.

Recommendatio n 2-3. Dev elop nationw

ide guidanc

e on the co ntents of sta

tements of ba

sis (SB) which inc

ludes discussions of monito ring, opera tional requi

rements, reg

ulatory applicabi lity dete rminations, exp

lanations of

any conditi

ons from prev

iously issue

d permits that are not b eing transf erred to t he Title V

permit, discussions of st reamlining req uirements, and o the r fa ctu al in

for mati on, i ncl udin g a l isti ng of pri or T itle V p ermi ts is sue d tothe same applicant at the plant, attainment status, and construction, permitti ng, and compliance history of the plant.
Response : One Region agrees with the re commendation and two others would agree if the resulting guidance wer

e proper ly f ocused a nd specif ic in natu re. A fo urth Reg ion would prefer to point to model SBs instead of guidance.

OAR disag

rees wit h the rec ommendat

ion that a dditional g

uidance is neede d to improve the adequacy

of SBs. O AR believ es that its position, a s stated in

EPA’s re sponses to citizen pe titions on st

ate prog rams or p ermits 60 , provides reasonable guidelines as to the ty pes of information that should be in SBs while retaining the flexibility nee ded for state permitting authorities to prepare these documents without imposing an unnecessa ry paper work burden. Further more, pa rt 71 per mits as wri

tten by our Reg ional off

ices pro vide examp les of we ll documented and thorough SBs (for example SBs for D evon SFS Operating, I nc. and Red Cedar Gathering Company

). The ongoing title V progra m reviews include elements for assessing states’ g eneral

practic es reg arding

prepar ation of SB s, includi

ng whet her the p ermitting

authority provides guidance to its permit writers and how the permitting a uthority ensures that g

uidelines 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 approve d 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 e laborat e on the widespre ad proble m that woul d be corr

ected with national guidance.

OAR recognizes that as EPA officials deal with operating permits implementation issues - in

cluding the adeq uacy of SBs - they

must be fa

miliar wit h EPA’s pos ition on the se issues. Although petition responses are public documents, are widely available, and are commonly used by

citizen groups, OAR recognizes that additional efforts ar e needed to bring awareness of the issues addressed in these doc uments within EPA. The EPA has started promoting

these doc uments inte

rnally by c ompiling

lists of al l the issue s addres sed in EPA91

responses together with the refer ences to the particular document(s) where the issue is discussed. The EPA he adquart

ers will c onsult with

the regions on add

itional ef forts ne eded to di sseminate this information and will prepare and implement a plan for this purpose. OIG response: We believe that comple te 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 permittin g authoritie

s. Also, we

noted sign ificant dis

parities inSBs among

the four St

ates we visited. Further, we were informed that the regions have previously requested national guidance from EPA on SBs. We do not believe re gional guidance is sufficient because one region may be required to use guid

ance for w

hich they did not hav

e an oppor

tunity to pr

ovide inp ut. Wh ile we recognize that petition responses can be used in lieu of guidance, we also believe that petition response s are an ine

fficient a nd ineffective me thod for dis seminatin g guidanc e. For ex

ample, we noted one instance in which a key regional office official was unaware of another region’s petition re

sponse tha t provide

d some gui

dance onSBs. The us e of petiti on respon ses 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 prec luded fromrelying o n EPA guida nce and can only re ly on Fed eral rule s. We believe it would be more efficient for the regions to correct SB inadequacies through national guidance or a Federa l rule on SB

content.

Recommendatio n 2-4. Throug h its period

ic grant dis cussions with E PA regions a

nd State and local per mitting authoritie

s, emphasize

improvements in Title V permit clarit

y by minimizing using incorpo ration by re ference (IBR), cle

arly citing

applicabl

e underlyi

ng regulations, emphasizing c

oncisenes s in permit for

mat, and using statements of ba sis to identi

fy and explain permit decisions related to streamlinin g. Response : EPA Headquarters and the Regions disag ree with the recommendation. Funding for title V pro grams c omes fro m permit f ees and s ection 10 5 gran

t monies ca

nnot be ap

plied. I t is inappropriate to raise issues related to improving title V permit clarity in the context of grant fundi ng. OIG Response: We re moved th e refere

nce to “grant” discuss ions from th e recom mendatio n, but we c ontinue 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 improve ments dur ing their e

valuation s of permit

ting author

ities’ Title

V programs

.
Recommendation 2-5. Expeditiously follow th rough on its commit ment in the January 2004 umbrella monitorin g rule to develop periodic monitoring guidance.
Response : EPA agrees with the recommendation. Consistent with the umbrella monitoring rule, we are developing a notice a nd comment rulemaking to provide guidance on pe riodic monitoring92

require d under the provisi ons of 40 CF R §§70.3 (a )(3)(i) (B) and 71.3 (a

)(3)(i) (B). Th

is rule wi ll address when the requirements for periodic monitoring in title V rules are triggered to improve monitoring

in underl yin g emission standar

ds and rul es, and w

hen it is tr

igge red, how to crea te 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 per mitting authoritie

s in preve nting practi

cal enfor ceability problems in Title V permits.
Response : The EPA a

grees that national guid

ance is a n effec tive way to provide

instructi on to EPA regional offices and State and local pe rmitting authorities, and over the y ears EPA has gener ated nume

rous gu idance d ocuments address ing pra

ctical e nforce ability . Howeve

r, it is EPA’s vie

w that pra

ctical e nforce ability

problems arise in i ndividual permits a nd 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 effe ctive oversight. Four Regions disag ree with the recommendation, feeling that concer ns about practical enforceability are best addressed in the New Source Review program, or tha t national guidance already exists and training is a more effec tive improvement. One Regi on agr ees with t he recommendation if the g uidance appears in the form o f a rule

making on Potentia

l to Emit. OIG Response: We agree that the goal of preventing practical enforce ability problems could be addressed th rou gh e ff ect ive , pe ri odi c tr ai ni ng a nd m ore eff ect ive ove rs ig htas o

ppo sed to gui dan ce. We revised the recommendation to reflect this approach.

Recommendatio n 2-7. Estab lish and implement a plan to rev

iew the ade

quacy of monitoring provisions

in SIPs.
Response : EPA agrees with the recommendation. Consistent with the umbrella monitoring rule, we are developing an adva nce notice of proposed rulemaking to ask for comment to identify inadequa te monitor

ing in ce rtain und erly ing emis sion stand

ards and rules, including

SIP ru les, and to ask for input on the best methods to correct such monitoring, such as throug h 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 ou

r mind as to

next steps, it is likely

that if the

outcome o f this proc ess demon strates a need, we would initiate one or more future notice and c omment rulemakings to correct any inadequa te monitor

ing we may

determine to exist in s

uch rule s. We hope t

o issue the

notice in early 2005.

Recommendatio n 2-8. Ensure that State and

local per mitting authoritie

s consiste ntly apply periodic monitoring provisions to all applicable perm it requirements, and ensure that permitting autho rities use AP-42 emissions factors in permits only

after othe

r more reliab le methods for determining compl iance have been considered.
Response: EPA Head

quarters and the R

egions d isagre e with the

recomme ndation. I t is important that the best information be used by States in spec ifying c ompliance determination93

methods. Sometimes AP-42 emission factors are the best that is available. Two Regions cautione d that limits

must be in p lace to a

void exces sive oversight of all permi ts by EPA. This issu e shou ld be a ddres sed th rough t raini ng. OIG Response: Our reco mmendati

on states th at AP-42 e

missions fa ctors shou ld be used “only afte

r other mo re reliable methods for determining compliance have been considered.” W e 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.

Recommendatio n 3-1. Promulga te the draf

t order of sanctions rul

e which prov

ides notic e to State and local agencies, as well as the public, regarding the actions that willbe taken when Notices o f Defic iencies are not timely

resolve d by State a

nd local Tit

le V pe rmitting authorities.
Response : EPA agrees with the recommendation. As noted in the OI G report, in calendar y

ears 2001 and 2 002, EPA iss

ued 10 NO Ds to perm

itting au thorities to addre ss regu

latory problems in their title V programs. EPA also received 23 commitment letters from State a nd local permitting agencies during this period to addre ss 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 addre ssed 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. Reg ion 6 has prepared a draft Fede ral Register notice which identifies resolutions to the remaining NOD issues in Texas, and the Reg ion expects the proposal to be published in the spring of 2005. While we agree that promulgating the Or de r o f S an ct io ns ru le is ou r g oa l, it is cu rr en tl y no t a pr io ri ty f or th e a ge nc y. 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 rul es developed by OAQPS and submitted for approval in 2002.
Response : With the exc eption of the Orde r of Sanctions rule , EPA disag rees wit h these recommendations. Sufficient time has passed for the issues to reach r esolution through other means or are no longer of intere st to State and local agencies. Two Regions ag ree with the
recomme ndation ( althoug

h one con siders the se issues outdated ). A third Region n oted that some States cannot go bey

ond EPA rules and therefore, if any thing is needed, it must be done by rulemaking. They

did not express an opinion on the appropriateness of rulemaking on this issue. Order o f Sanctions Rule

- See previous response to Recommendation 3-1 reg arding the Order of Sanctions rule. Permit Renewal Application Forms Guidance- This gu idance i s no long er need

ed beca use Region 4 has approved a rule in Kentucky that allows for streamlining of renewal applica tions. Th is pr ov id es gu id an ce th at ca n b e a pp li ed na ti on al ly.94

Annual Compliance Certifications Guidance - The original draft guidanc e as prepared over two years a go is now out of date and was not reviewed by EPA management due to competing prioritie s with New

Source Re

view. Wer

e such g uidance to be pre pared no w, it would

need to come in th e form of

a notice -and-c omment rul emaking . There are no pl ans at pr

esent to undertake a rulemaking on this issue. Processing Program Revisions Guidance - The lack of any

recent requests for guidanc e on processing program re

visions suggests that this guidance is not needed at this time. OIG Response: We a gree with t

he Agenc y that the Order of S

anctions r

ule 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 substantia lly revis ed and co nsolidate d our reco mmendati

on to reflect these considerations.

Recommendatio n 3-3. Prov ide a docu ment guide on the EPA public we

bsite which w

ould assist the public in identifying and locating publi shed EPA statements on key Title V program issues.
Response : EPA disagrees with the recommendation. The desig nated repository f

or OAR policy and gui dance ( where k ey title V program issu e docu ments are st ored) i s the O AQPS Techno logy Transfer Network (TTN). The T TN is intentionally limited to documents originating f rom and signed b y O AR offic ials, and

cannot in clude Re gional material s. Regional mater ials are easily accessible, however, by

linking to Region 7's database. One Reg ion agrees with the recommendation and one Region feels this link already exists and a new one is not needed. OIG Response: As indicat

ed in EPA’

s response

above, Ti tle V guida nce canbe found o n both the O AQPS 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 writt

en policy positions o n an issue, one must u se the search func tion 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 believ

e this doc ument sho uld be mad e availab le to regio n and State and local permitting staff. We also believe it would be beneficial to make the docume nt 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 Admin istrators, jointly develop a strategy to ensure that EPA regional oversight and review of Title V permit adequacy continues be

yond the sc

heduled pr

ogram evaluations. EPA re gional rev

iew of per

mits should include an a

nalysis of clarity- related is sues and appropriate in clusion of CA M and MACT provisions

in any permit re

newals.95

Response : EPA Headquarters and the Regions ag ree that long-term oversight of title V implementation is needed. Using the current four-y ear analy sis of title V programs as a baseline, OAR and the Regions will develop five-y ear plans that combine oversight with permit review and audits to ensure continued proper implementation. This would include a written strateg y and annual r eports to OAQPS.

Recommendatio n 3-5. In co njunction with EP A Regional Ad

ministrators, jo intly coor dinate and streamline

the revie w and respons

e proces s for Title V public petitions to

meet the response r

equirements s

pecifie d in the CAA.
Response : There are many case-specific reasons why permit responses can exceed 60 day s. EPA Headquarters and the Regions will work interna lly to devise a proce dure that will reduce response times, will implement that procedure, and then will track the impact on shortening the process . Permits a

re ofte n moving t

arget s, which c an delay

the resp onse proc ess. Recommendation 4-1. Consider formi ng a stakeholder advisory group, possibly in conjunction with the CAA Advisory Comm ittee, to solicit input on needed Title V guidance and rules from selected State and local agencies, and industries or industry associations, environm ental groups and ot

her intere

sted stake holders.
Response : EPA agrees with the recommendation. A stakeholder group has been formed. The stated purpose of the Task Force on Title V I mplementation Experience is to “report to the [Clean Air Act Advisory] committee on the experience s of stakeholders who have been working in the title V permitting arena. The report should refle ct the perspectives of all the stakeholder groups, and should reflect an effor t to answer two questions: (1) How well is the title V program performing and (2) What elements of the prog ram are working well/poorly ?” The Task Force may also make

recomme ndations t o EPA base d on its find

ings.

Recommendatio n 4-2. Estab lish and implement a n EPA-wide d

atabase to

track improv

ements made in Title V

permits by pe

rmitting authoriti

es. Response: EPA Head

quarters and the R

egions d isagre e with this

recomme ndation. T

he purpo se of a permit-improvement database is not clear from the O IG report. Ninety -four percent of the title V sources nationally alr eady ha ve received their permits. Most improvements have alrea dy happened, due to comments and corrections from per mittees, the public and EPA. We agree that there is r oom for pr

ogram i mproveme

nt, but an E

PA-wide d

atabase for trac king pe rmit improvements will not accomplish this. Future program audits, permit reviews, and the T itle V Task For ce will he lp EPA iden

tify areas t hat still ne ed improv ement. 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 informatio n to identif

y Title V ar

eas still inneed of im

proveme nt.96 App endix G



### Texas Response to Dra ft Report and OI G Evalua ti on Using Incorporation by Reference (IBR):
TCEQ Response: OIG’s concer ns 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 “rea sonably discernible” (i.e., the regulatory

citations were specific enough to provide identific ation of the specifically

applicable requirements). I n general, for Texas’ SOP Title V permits (both audit sample and permit population at large), the exact citation of the applicable regulation is provided. I n atypical cases where the specific citation is not provided, per mit 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 progra m. The use

of IB R in GOP is consistent with this approval. Sources a uthorized by G OP ty

pically have few emission units, and reviewing their requir ements does not require naviga tion of mult

iple (i.e ., ‘76 to 10 8') pa

ges of a pplicabl e requirements tables. The review of these table s is also facilitated by an index numbering system included in the desig n of the GOP. Alth ough the issue d GOP authorization i tself doe s not list actual emiss ion units, all emission units to be covered by the G OP must be listed in the application. The sug gested

use of the

narrat ive text alt

ernativ e appar

ently 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 applic able re quireme

nts would b e nega

ted by unmanag eable permit size that would result from using narrative text summaries. As OIG’s own findings a bout IBR indicate, this practice ha s been litigated and upheld by

the August 15, 2003 ruling from the United States 5th Circuit Cou

rt of Appe als. The C ourt foun d that noth

ing in the Fed eral Cle an Air Act prohibits this practice; APDagree s with OIG’s observation that I

BR does not therefore violate any Title V require ment. Add

itionally , EPA’s White Paper No.2 supports IBR. The white paper specifically describes the practic e of citin g and crossrefer encing informat ion in per mits if the i

nformati on is rea

dily availab le to the p ermitting agenc y a nd the pub lic

.97

OIG Response: We agree that general operating permits are approve d 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 betwee n 76 and 108

pages of ap

plicable requirem ents table

s - all with e

xtensiv e IBR. Ev

en 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 IB R would increase the volume of the perm its. Howev

er, in mos t cases, we

do not beli

eve that including

narrative text resu lts 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 incre ased understan ding of the

source. W

e did not fin d that it ham

pered dir ect acc ess to the

applicabl

e requirem ents.

EPA’s W hite Pape r No. 2 state

s that in ge

neral, inf ormation m ay be cit

ed or cros

s-refere nced 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 Re flected th e Underly ing Regula tions:
TCEQ Response: Comparison of text summaries to u nderly ing reg ulations is

a reasonable indicator of a permit’s fidelity to its regulatory

basis, but only for those per

mitting programs that use this approach. While we generally agree with OI G’s observation (i.e., available narrative showed no

discrep ancies f

rom under

lyin g reg ulations) , we maint

ain that the direct regulatory

citations provided by I

BR result in greater overall fidelity betwee n permits a

nd their u nderly ling re quireme

nts (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 supporte d by

OIG ’s overa

ll finding s in this ar

ea. The exception

that a permit shi eld IBR citati on did not pr ovide suf ficient i nformati on to conclude whether the shield

was appr opriate ly a

pplied , however, is attributa ble to an a

dministra tive matte r. At the t

ime the sub

ject per mit was issued, the permit shield citation and its keyword reference to the subject emission unit (i.e., process heater) were c onsistent with the applicable definition in the pertinent regulation (Ch. 117). Since the permit wa s issued, however , Ch. 117 ha s chang ed. The p ermit shie ld citation and keywor

d reference were

not updated when the regulation changed, and the location of the applica ble definition in the regulation98 text is no long er consi stent with the spec ific citation in the shield. Wh en c hec ki ng t he r egu lat ory t ex t t o wh ich th e ci tat io n re fer s, O IG staff ap parentl y c onsulted t

he curr ent vers ion of Ch. 1 17. I

n this version, the same-numbered citation now holds the definition of another concept, unrelated to process hea ters. OIG concluded f

rom these obs ervations that it w as unable to deter mine whet

her the p ermit shield was correctly

applied to the subject emission unit.

APD belie

ves ther e is suffi cient inf

ormation p

rovided by th e permit shield’s keyword r

eference and reg

ulatory citation, and in the initial and current definitions of “process heater ”, with which to determine that the permit shield is appropriately a pplied to the subject emission unit. For consistency of

practice and format with more rece ntly 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 key word 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 reflec t the explanation provided above.

Ove ra ll Pe rm it Cl ar it y: TCEQ Response: As previously indicated ( see response to “Use of I BR” findings), APD has considered this concern relative to those resulting from the use of narrat ive text summaries (i .e., per mit volume) . APD belie

ves the I BR approach offers a better solution to our obliga tion to maximize access and fidelity

to underlying r

egulatory requirements.
Statements of Basis:
TCEQ Response: APD is in general agree ment with this assessment (i.e., that SB’s are improved replacements for technical summaries. More specific comments on OIG ’s SB obse rvations in Section

5 are pr ovided in t

hat portion of the document). Provisions for Periodic Monitoring:
TCEQ Response: APD is in g eneral agree ment with th

is assessment. Compliance Assurance Monitoring:
TCEQ Response: APD is in g eneral agree ment with th

is assessment.99

Gap-fillin g Underly ing State/F ederal Regul ations: TCEQ Response: APD is in g eneral agree ment with th

is assessment. Surrogate Monitoring:
TCEQ Response: APD is in g eneral agree ment with th

is assessment.
Monitori ng and Rep orting R equirements: 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). I n rule changes effec

tive December 2002, APD committed to include periodic monitoring in permits issued after this date, for those

whose und

erly ing stat e and fe deral r

equirements 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 fe deral 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 re newed (SOP), or when the overall GOP is revised (GOP).

The use o f IB R identifie s requir ements a s monitorin

g or re porting in the applicable requirements summary

. The use of GOP, as well as the form and content of this mechanism, are approved ele ments of our Title V program; the use of I BR in both SOP and GOP is consistent with this approval.

An nual Comp liance Certif ications:
TCEQ Response: OIG observes that “...diff erences...were relate d to... whether the facilities certified each permit term and condition or just repor ted deviations." This

langua ge mig ht sugg est that T exas requ ires 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 r eferences the permit in question. Also, the responsible official clearly states the applicants are certify ing to all terms and conditions of the permit with the exception of the deviations repor

ted. We sug

gest re -wording

the ref erence d sentenc e to avoid misunderstanding and/or mis-statement. OIG Response: We m odified the

wording on p age 31 in th e report t o “The diffe

rences w e found re lated 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

. ”100

Pr ac ti ca l E nf or ce ab il it y: TCEQ Response: In rule chang es effective December 2002, A PD committed to include periodic monitoring

in permits

issued af ter this da te, for th ose whose underlying

state and federal requirements did not otherwise re quire Of the 4 audi ted perm its that we

re issue d after

this date, 2 contain

PM provision s and the o ther 2 spe cify the monitor

ing req uiremen ts of their applicable state and/or federal reg ulations. monitoring or specify monitoring frequencies. 6 of the 10 audited permits wer e issued prior to the commitment date for inclusion of PM; required updates will be evaluated and implemented when the permits are re newed (SOP), or when the overall GOP is revised (GOP).

GOP form a

nd conten t are ap proved e lements of

the Texas progra

m; the use of IBR in both SOP a

nd GOP is consistent w

ith this approval. Although the issued GOP authorization itself does not list actual emission un

its, the enforcea

ble appli cation f

or this au thorization must include all emission units to be covered by the GOP.

No ti ce s o f D ef ic ie nc y: 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. T

hese rul e chang es were

submitted t

o EPA as re

visions to the Texas SIP. EPA has given verbal indica tions it will grant limited approva l for all o f these r

ule chan ges, a nd appro val is expe cted in January 2005.
Commitmen t Letters:
TCEQ Response: The substa nce of ou r respon se to the A CC issues re ferenc ed in this section is provided in the responses to OIG’s A CC findings of Sections 2and 5, an

d is not re -stated here. Re gardin g SB issu es, however , OIG ’s refe

rence t o “Chapte r 2" is va gue an d potentia lly confusing, especially

when considering that “Chapter 2" was not provided for review. Follow-up discussions with OI G staff indicated the nature of these SB issues is related to consistency of SB content
across s tates and EPA regions, and t he extent to

which the

SB contained what OIG c onsiders key ele ments. These issues are not exclusively pertinent to Texas. I t would be helpful for these reference s to be cla rified with specif

ic identif ication a nd discuss ion of the se issues in this section, and for Texas to have the opportunity to re view and comment on this discussion

.101

Review of Pr

e- and Post -Title V Per mits: TCEQ Response: Since rul es gove rning N SR permittin

g are p art of the

Texas SI P, NSR permit te rms and c onditions a

re fully enforc eable. F

urther, APD believes its NSR permit conditions contain adequate provisions for periodic monitoring. In addition to technica l summaries, and as supported by OIG’s Table 4-3 indicating availability of pre-Title V authoriza tions for a

ll audited Title V pe

rmits, APD p

rovided a ll available emission rate tables and special conditions of the curre nt NSR authorizations associated with the audited permits. OIG Response: We re vised the report and

added a fo otnote to Ta ble 4-3 e xplaining that some p re-Title V

permits reviewed were NSR permits, and thus were federally enforceable. The numbe rs in the Tab le 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 technic al summaries for the pre-Title V permits t

o reflec t that emis

sions rate tables and

special c onditions we

re also provided.

Observat ions on St atements of Basis:
TECQ R esponse : APD is in g eneral agree ment with th

is assessment. As de scribed in previous responses (Section 2 - Monitoring and Reporting; Prac tical Enforceability) , 2 of the 4 audited permits issued after December 2002 did not require addition of PM provisions. OIG’s indirect observa tion in this section (that 2 of the 4 SB’s reviewed did not provide t he basis of the PM de cision) r

efers 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.
Observat ions on A nnual Com pliance Cert ifications:
TCEQ Response: OIG observes that Texas has addr essed the “material information” issue as committed, but also immediately comments on the substanceof the ACC (completeness of the certification, as indicated with lineby-line cer

tification vs. certification by exception). The organization of these comments suggests that Texas a lso committe d to change its method of certification and has y et to comply with this commitment. Texas has i

n fact mad

e no such commitmen

t. The lan

guag e of thes e observa tions shoul d clarif

y that the sub

ject comm

itment wa s to resolution of the ‘material information’ matter, separate f rom how certifi cation 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.102 Ap pendix H



### Ohio Response t o Draft Report and OI G Evalua ti on

January 26, 2005 CERTIFIED MA IL

U.S. EPA Attn: J Rick Beusse, Director for Program Evaluation, Air Quality Issues Office of Inspe ctor 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 c omment on the Ohio portions of the draft evaluation report on Title V. Ohio EPA believes that a thorough re view of the federal Title V permit program will lead to improvements in implementing a complex progra m and will provide increased national consistency . We look forward to participating in any effort to make the Title V program more efficient and e ffective. We also appreciated meeting with your review

team and believe they gained valuable information concerning the e xperience that Ohio brings to issues associated with implementing 40 CFR Part 70 requirements. Following is a summary of our comments b ased on o

ur limited knowledg e of the f

ull prog ram eva luation c onclusion s. These comments a

re base d on our re

view of the redac

ted draf t report y ou supplie d for com

ment. Using Incorporation By Reference Ohio EPA ha s no comme nts.

How Well Pe rmits

Reflect ed the Unde rlying Re gulations As with any larg e, complex program, the initial permits may not have contained the amount of information that appeared in later permits. Ohio EPA apprecia tes recognition that implementation issues can be worked out in a cooperative fashion with the U.S. EPA reg ional staff. Ohio is following through with the commitment to cite underly ing regulations as part of any permit mod

ification or rene

wal.
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 r equirement is selected as the most stringent in cases wher e streamli ning is e mploy ed. SI P approve d, rule-based re quireme nts and SI P approve d state be st availab le technology

require ments are good exa

mples of w

here “s treamlin

ing” is u sed 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) be cause both requirements are part of the federally

approved SIP for Ohio. Thus, the basis for e ach requirement has already undergone federal and public r eview, and needs no further justification reg arding the selection of the more stringent requirement. Further , there is no national guidance concer ning the level or103

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 langua ge such as “... The minimu m overal l control e fficien cy specifie d by

this rule i s 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” ra ther than “streamlining” in Ohio. OIG Response: We a gree that there is n o Part 70 pr

ovision re quiring sid

e-by-s ide comp arisons to ju stify streamlin ing. Howev

er, this us eful prac tice is recommen ded in EPA ’s Wh ite Paper #2 and in Region 3's Title V Permit Writers Tips.

Overall Permit Clarity Ohio respectfully disa

grees with the conclusion that Ohio permits lack clarity or that the use of the phrase “upon request” or “if re quired” makes it unclear what conditions would trigg er a source t o be teste d. To state

every condition

which co uld trig ger the

require ment for a

source t o underg o emission t

esting i n an oper ating pe rmit is unr

easonab le. As U.S. EPA is awa re, most determinations for these source test requirements ar e made on a site-specific basis. U.S. EPA has
no t p ro vi de d c le ar gu id an ce or ru le -b as ed re qu ir em en ts co nc er ni ng on -g oi ng te st in g f re qu en cy. For example, most, if not all NSPS and NESHAPS categories only specify a n initial compliance determination. If it is U.S. EPA’s desire to have ce rtain types of oper

ations tested on specified frequencies, U.S. EPA should promulgate reg ulations to ensure that goal is achieved. Otherwise, deference needs to be given to the permitting authority to de termine when and if emission testing should be r

equired on a site a

nd source -specif

ic basis. OIG Response: We understand Ohio’s position that stating every condition which could trigger emissions testing may be unreasonable. We also ac knowledge 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, suc h language can appear vague and leave the reviewer unc lear as to what would trigger source testing.

Statem ent of Basis ( SBs) As stated in the draft report, Ohio EPA does question the overall effic acy of SB s, 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 Ag ency, a nd every a ssociated SB, meet s the req

uiremen ts of the Pa

rt 70 rule s. The Cle an Air Act (includi ng 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 re quired focus, elements, or structure of the SB. The focus of this section of the draft report is a letter f rom 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 regula tory basis, an d contain s the information that Region V would li ke to see . Althoug

h Ohio EPA recognizes that more information can be helpful, ther e needs to be a recognition that104

permitting authorities have limited resources and the focus of the effort needs to be in the issuance of quality

permits. OIG Respo nse : 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 requirem ents to determine compliance)

Provis ions for Pe riodic Mo nitoring Ohio EPA does not believe that commonly understood or well established permitting practices need to be explained or detailed in either the pe rmit or SB. For example, not requiring monitoring for PM for inherently clean fuel burning operations should not have to be expla

ined in the

permit or in the SB b ecause

the minor e

missions as sociate d with such operations are widely and commonly understood by industry and the reg

ulatory community. One could question whether the public could readily a scertain why monitoring is not required in such an instance, and conclude that e xplanation should be provided . Howeve

r, nothing in Part 70 or the Act

require s permittin

g authorities to d

etail the minutia

of ever y de cision the

permittin g authority

makes in d

evelopin g permi t requirements, especially

those decisions that are consistent, and widely understood and accept ed in the e

nvironme ntal fiel d. Furth er discu ssion of th is issue is d

etailed b elow in the OIG review SB discussion.
Gap-filling Ohio E PA has no com ments regardi ng gap-fi llin g. Surrogat e Monitor

ing Concerning surrogate monitoring , Ohio EPA does not have a ranking sy stem for surrog ate monitoring. O hio EPA is c oncerne d that the list of ty pes of sur rogate monitoring in Table 2-5 in conjunction with the preceding par agraph would lead a rea

der to believe that the list is the ranking mentioned in the lead-in. OIG Response: Ch apt er 2 of

our rep ort cit es a No vem ber 200 1 Re gi on 5 mem ora ndu m to Ohi o EP A. 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 determin ation. Table

2-5 lists ty

pes of surr

ogate mon itoring or c omplianc e determ ination 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 Com pliance Ohio EPA ha s no comme nts reg arding

reportin g requ irements

.105

Annual Compliance Certification Ohio EPA ha s no comme nts reg arding

Annual Com

pliance Certific ations.
Practical Enforceability Ohio EPA is c oncerne d about the assertion that Ohio

Title V pe

rmit terms

are not practica

lly enforceable, particularly

in light of the lack of U.S. EPA follow-through in providing re gulatory enforc eability

for cer tain ty pes of on- going

compliance demon stration t ools. Espe cially disappoin ting is the continue d failure

of revie wers to r ecogn ize how ce

rtified c ontinuous o

pacity monitoring

sys tems can

be used to

help ensu

re ong oing co mpliance

with visible

particu late emission li

mitations. There c ontinues t o be a push for tra

ditional Me

thod 9 obse

rvations at some set frequency

even though the data from a cer tified continuous opacity monitoring sy stem does not indicate a compliance problem and, therefore , the need for additional Method 9 observations. U.S. EPA sho

uld step ba

ck and c onsider t

he rationale for

and bene fits of the

continuou s opacity monitoring

sys tems requ

ired by 40 CFR Par

t 51, Appe

ndix P, 40 CFR Pa

rt 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 instance s cited in Table 2-9, Ohio EPA uses manufacturers’ spec ifications that are not developed or provided by t he manuf acture r on a site -specif

ic basis. To requir

e the per mitting a uthority 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 pra ctical enforceability

of “manufacturers’ specifica tions.” OIG Response: We d o not inten d to assert

in our repo rt that Ohio

Title V per

mit terms a re not prac tically enforceable. Our discussion of practical enforceability in Chapter 2 cites potential problems and conc erns that we

believe could aris e from the

standpoint

of an outsid

e revie wer. As not

ed in our report

, officials in 8 out of 10

EPA regio ns told us th at problem s in some p ermits pot

entially 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 Let ter Issues Ohio EPA wa s the firs t state in Re gion 5 to c omplete the initial r ound of Ti

tle V per mits. This significant achievement was attained in spite of fe deral audits of the air program, cha llenges by environmental or

ganizat ions of the

Title V pr

ogram i mplementa

tion in Ohio

on the fe deral le

vel, and many appeals of the ind

ividual pe rmits by industry at the sta te level. Regarding SB guidanc e. Ohio EPA has a standing committee of Ohio EPA Central Office, District O ffice, and loca

l air ag ency

permit an

d enforc ement re

present atives tha t meet on a

bimonthly basis (the

P&E Committ

ee). Th e requir

ed eleme nts of the SB have b een disc

ussed in P&E meetings. Additionally , the Ohio version of the SB was revised in 2003 to include detailed instructi ons reg arding

the eleme

nts to be c ompleted

in the SB, including

consider ations tha t must be taken into acc ount by

permit wr

iters whe n develop ing the SBfor a g iven per mit. The SB instructions were discussed during P&E meetings. Ohio considers these activities to meet the commitment by the Director to tra in 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 c omments regarding the OIG review “identified deficie ncies” i n Ohio’s SB s.106

OIG Response: As stated i

n our repo rt, we beli

eve that Ohio SBs c ould be fur

ther impro ved by in cluding c ertain key ele men ts con si der ed a dvi sab le i n t he D ece mbe r 20 , 20 01, Reg io n 5 m emo ran dum . 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 Perm its Ohio EPA is concerned that the message conve yed by a zero in item 5 of table 4-3 in this section of the OI G repor t would lea

d a read er to con clude tha t the Ohio E

PA does not

adequa tely address public pa rticipat ion. The f act that t here ha ve not bee

n any objections by

the public

to an Ohio permit doe s not have

a nega tive ref lection on public pa

rticipat ion. Ohio EPA provide s public participation and information regarding appeal provisions for every permit in the cover letter accompany

ing the permit. If a g

iven permit was issued draft, a public notice is sent to the newspaper of genera

l circulation in the county whe re the facility

is located. This notice provides all instru ctions an d contacts associa

ted with pu

blic par ticipation in the pe

rmitting process

. Additiona

lly, the Ohio EPA produc es a publi cation tit led the ‘ Weekly

Review’ that iden

tifies al l Agenc y a ctions tak en each week. Th is publica tion also provides i

nstructions rega

rding pu blic 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 improve ments that

Title V has b rought abo ut over th e old oper ating perm its. This tabl

e is not a
commen t on curre

nt public p articipati

on practic es in the S

tates. The

zero in ite

m 5 which O

hio refers to is not related to current Title V permits or public participation efforts.

Observat ions on State ment of Ba sis and Annual C omplianc e Cert ifications Ohio EPA is concerned that the draft OI G 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 fina l version s of Part 7 0 supporti ng the SB elements

listed in th e EPA memorandum. Indicating in the O IG review that Ohio EPA did not include “...se veral key elements identified as necessary in U.S. EPA Region 5's 2001 memorandum.” provides no construc tive adva ncement regar ding the SB issue. Further, indicat ing that “none of the SBs [reviewe d for Ohio ] provided an adeq uate des cription o f the fa

cility , the manufactur

ing proc ess and the attainment status of the area where the f acility is located.” ha s no constructive value. Inclusion of such statements in the OIG review, absent federal rules on minimum elements of the SB, will only serve to fue l a mis-perception that Ohio SBs do not meet the minimum Part 70 and Clean Air Act requirement of providing the leg al and factual basis for each per mit term to the EPA and the public. The requirement for permitting Ag encies to provide a SB is a product of EPA requiring permitti ng authoriti es to ident ify 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 an107

“adequ ate” SB in either

the draf t or final preambl es to Part

70. Ohio EP A respe ctfully request s that all language in the OIG report that would lead a reader to conc lude that Ohio EPA SBs do not meet the minimum r

equirements of Pa

rt 70 be r emoved. N otwithsta

nding, Ohio EPA apprec iates tha

t the OI G repor

t does re cognize

that Ohio E

PA has mad

e chang es to the SB in response to input for U.S. EPA Region 5. Additionally, Ohio EPA is not aware of A NY instance where a citizenhas relie d upon the SB to understa nd, let al one, comment on any Ohio Title

V permit. The vast majority of comme

nts receiv ed in the f

irst round of Title V

permits pr

ocessed by Ohio EPA we

re made by U .S. EPA staff or environmental organizations; both of which have a r easonable knowledge of issues associated with air pollution control permitting. Further, if a citizen were to r

eview Oh io EPA permits and the associated SBs, and they were to still have confusion or questions regarding either document, Ohio EPA or local air agenc y staff ar e available to further explain the documents, the source, or any other issue related to a given permit or fac ility. Taking per mitting authority staff time out to addre ss specific instances of citizen confusion or questions is a much more resource effective a pproach than developing voluminous SBs for an extremely limited audienc e; partic

ularly in light o f the lack of fede ral rule s, guida

nce, or p olicy

with resp ect to SB s. The content of Ohio EPA’s SBs meet the legal re quirements 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 na tional guidance from U.S. EPA on this issue. Furthermore, it should be noted that the SBs a re not necessary to prepare a Title V permit. The SB is an informational tool only that is prepared for U.S. EPA an

d the ge neral pu blic. I n proces sing clo se to 700 T itle V per mits, we r eceive d less than 10 comments from citizens concerning SBs. To ask an ag ency to spend more time to expand the conte nt of the SB , would force val uable re sources

to be red irected from permit preparation

to SB prepa ration. We

fail to se e any

positive b enefit f

rom such a

realloc ation of r

esource s. OIG Response: Please note our responses on SBs provided above. W e agree that an EPA nationwide guidance documen t or rule ha

s not beenissued tha t would provide minim um SB requ irements and we have, the refore, r ecomme nded that E

PA provid

e such gu idance or

rule. In o ur report, we identified missing elements in Ohio SBs that were recommended in Region 5's guidance documen t. We

also ident

ified missi

ng SB ele ments for t

hree othe r States an d noted tha t there ar e inconsiste ncies am ong the SB

s prepare d by each State. W

e believ e that ke y conten t of SBs shou ld be consistent nationwide. We disagree with Ohio EPA on the value of Sbs, i. e., we believ e 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 effec tive 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 believ

e adequate SBs are necessary and that the resources nece ssary to construct these SBs are justifi

ed. Furth er, the ot

her three states’ pe

rmit progra ms we rev iewed with m ore 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 su mmary , Ohio EPA a

pprecia tes the op portunity to submit comments on the draft OIG Title V evalua tion report. We hope

that the r eport is u sed by

U.S. EPA an

d permitti ng authorities to refine and enha nce imple mentation of the Tit le V perm it progr am, and a ssists the p

ublic in108

understanding the complex issues associated with implementing this very important federal progra m.
Si nc er el y,

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 5109 Ap pendix I


### Dist ribu ti on

EPA Headquarter

s 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