BEFORE THE ADMINISTRATOR UNITED STATES ENV IRONMENTAL PROTEC TION AGENCY

IN THE MATTER OF ) COLUMBIA UNIVERSITY ) ) Permit ID: 2-6202-00167/00005 ) Facility DEC ID: 2620200167 ) ) Issued by the New York State ) Department of Environmental Conservation ) Region 2 ) ____________________________________) ORDER RESPONDING TO PETITIONER’S REQUEST THAT THE ADMINISTRATO R OBJECT TO ISSUANCE OF A STATE OPERATING PERMIT

Petition No.: II-2000-08

ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR OBJECTION TO PERMIT

On October 2, 2000, the Environmental Protection Agency (“EPA”) received a petition from the New York Public Interest Research Group, Inc. (“NYPIRG” or “Petitioner”) re questing that EPA object to th e issuance of a st ate operating pe rmit, pursuant to titl e V of the Clean Ai r Act (“CAA” or “t he Act”), 42 U.S.C . §§ 7661-7661f, CA A §§ 501-507, to Colum bia University (“Columbia Permit”). The Columbia Permit was issued by the New York State Department of Environmental Cons ervation, Region 2 (“DEC”), and too k effect on Augus t 3, 2000, pursuant t o title V of the Act, t he federal imple menting regulation s, 40 CFR part 70, and t he New York State implementing regulations, consisting of portions of 6 NYCRR parts 200, 201, 616, 621, and 624.

The petition alleg es that the Columbia Permit does not comp ly with 40 CFR Part 70 in that: (1) DEC violated the public participation requirements of 40 CFR § 70.7(h) by inappropriately denying NYPIRG’s request for a public hearing; (2) the permit is based on an incomplete permit application in viola tion of 40 CFR § 70.5(c ); (3) the permit e ntirely lacks a statement of basis as required by 40 CFR § 70.7(a)(5); (4) the permit distorts the annual compliance certification requirement of Clean Air Act § 114(a)(3) and 40 CFR § 70.6(c)(5); (5) the permit does not assure complianc e with all applica ble requirement s as mandated by 40 CFR §§ 70.1(b) and 70. 6(a)(1) becau se it illegally sanc tions the systematic violation of applic able requirements during startup/shutdown, malfunction, maintenance, and upset conditions; (6) the permit does not require prompt reporting of all deviations from permit requirements as mandated by 40 CFR § 70.6(a)(3 )(iii)(B); and (7 ) the permit does n ot assure complia nce with all applic able requirements as mandated by 40 CFR §§ 7 0.1(b) and 70.6(a )(1) because ma ny individual permi t conditions lack adequate monitoring and are not practically enforceable. The Petitioner has requested that EPA object to the issuance of the Columbia Permit pursuant to § 505(b)(2) of the Act and 40 CFR § 70.8( d) for any or all o f these reasons.Subsequent to receipt of the NYPIRG petition, the EPA performed an independent and in-depth review of the Columbia Permit. Based on a review of all the information before me, including the petition; the permit application; a June 16, 2000 letter from Elizabeth Clarke of DEC to Steven C. Riva o f EPA transmitting th e “Responsiveness Summary” or “re sponse to comments document ”; and the Columbia P ermit dated August 3, 2000, I deny in pa rt and grant in part the Petitioner’s request that I object to this permit, for the reasons set forth in this Order. Petitioner has raised valid issues on the Columbia Permit, resulting in our granting portions of the petition. This petition also raised programmatic issues, some of which DEC has already addressed and others which DEC is in the process of addressing. Seeletter dated November 16, 2001 from Carl Johnson, Deputy Commissioner, DEC to George Pavlou, Director, Division of Environmental Planning and Protection, EPA Region 2 (“commitment letter” or “November 16 letter”).

STATUTORY AND REGULATORY FRAMEWORK

Section 502(d)(1) of the Act calls upon each State to develop and submit to EPA an operating permit p rogram to meet the requirements of title V. EPA grante d interim approva l to the title V operating permit program submitted by the State of New York effective December 9, 1996. 61 Fed. Reg. 57589 (Nov. 7, 1996 ); see also61 Fed. Reg. 63928 (Dec. 2, 1996) (correction); 4 0 CFR part 70, Append ix A. Effective N ovember 30, 2001, EPA granted full approval to New York’s title V operating permit program based, in part, on “emergency” rules promulgated by DEC. 66 Fed

. Reg . 63180 (Dec. 5, 2001). Once DEC adopted final regulations to replace the emergency rules, EPA granted full approval to New York’s title V operating permit program based on these final rules. 67 Fed

. Reg . 5216 (Feb. 5, 2002). Major stationary sources of air pollution and other sources covered by title V are required to apply for an operating permit t hat includes emissi on limitations and suc h other conditions a s are necessar y to assure compliance with applicable requirements of the Act. SeeCAA §§ 502(a) and 504(a).

The title V opera ting permit progra m does not genera lly impose new substa ntive air quality control requirements (which are referred to as “applicable requirements” ) but does require permits to contain monitoring, recordkeeping, reporting, and other conditions to assure compliance by sources with existing applicable requirements. 57 Fed. Reg. 32250, 32251 (July 21, 1992). One purpose of the title V program is to enable the source, EPA, States, and the public to better understand the applicable requirements to which the source is subject and whether the sour ce is meeting those requirements. Th us, the title V oper ating permits progr am is a vehicle for en suring that existing air quality contro l requirements ar e appropriately applied to facility emission units and that compliance with these requirements is assured.

Under §§ 505(a) and (b)(1) of the Act and 40 CFR §§ 70.8(a) and (c)(1), States are required to submit a ll operating permi ts proposed pursua nt to title V to EPA for review and EPA will object to permi ts determined by th e Agency not to be in compliance with applicable requirements or the requirement s of 40 CFR part 70. If EPA does not object to a permit on its own initiative, § 505(b)(2) of the Act and 40 CFR § 70.8(d) provide that any person may petition

2 Ithe Administrator, within 60 days of the expiration of EPA’ s 45-day review p eriod, to object to the permit. To justify exercise of an objection by EPA to a title V permit pursuant to § 505(b)(2), a petitioner must demonstrate that the permit is not in compliance with the requirements of the Act, including the requirements of part 70. Petitions must, in general, be based on objectio ns to the permit that were raised wit h reasonable spe cificity during the public comment period. 1 A petition for rev iew does not stay th e effectivene ss of the permit or i ts requirements if the permit was issued after the expiration of EPA’s 45-day review period and before receipt of the objection. If EPA objects to a permit in response to a petition and the permit has been issued, the permitting authority or EPA will modify, terminate, or revoke and reissue such a permit consistent with the procedures in 40 CFR §§ 70.7(g)(4) or (5)(i) and (ii) for reopening a permit for cause.

ISSUES RAISED BY THE PETITION ER

On April 13, 1999, N YPIRG sent a petitio n to EPA which broug ht programmatic problems concerning DEC’s application form and instructions to our attention. NYPIRG raised those issues and ad ditional program im plementation issue s in individual permi t petitions, including the instant petition, and in a citizen comment letter, dated, March 11, 2001 that was submitted as part of the settlement of litigation arising from EPA’s action extending title V program interim approvals. Sierra Club and the New York Public Interest Research Group v. EPA , No. 00-1262 (D.C.Cir.). 2 EPA has conferr ed with NYPIRG and D EC relative to thes e program implement ation concerns.

EPA received a letter dated November 16, 2001, from DEC Deputy Commissioner Carl Johnson, committing to address various program implementation issues by January 1, 2002, and to ensure that the permit issuance p rocedures are in accord with sta te and federal r equirements. DEC’s fulfillment of the commitments set forth in the November 16, 2001 letter will resolve some administration problems. EPA is monitoring New York’s title V program to ensure that the permitting authority is implementing the program consistent with its approved program, the Act, and EPA’s regulations. According to a recent review, DEC has made many of the necessary changes, and is su bstantially meetin g its commitments. 3 As a result, EPA has not issued a notice

1 See CAA § 505(b)(2); 40 CFR § 70.8( d). Peti tioner commented dur ing the publ ic comment period, raising con cerns w ith the draft o perating p ermit that a re the basis fo r this petition. See Letter f rom Keri Powell, Esq. and Larry Shapiro, Esq., of NY PIRG to DEC (November 5 , 1999) (“NYPIRG Comm ent Letter”).

2 EPA responded to NYPIRG’s March 11, 2001 comment lette r by lett er dated December 12, 2001 from George Pavlou, Director, Division of Environm ental Planning and Protection to Keri N. Powell, Esq., New Y ork Public Interest Research Group, Inc. The response l etter is available on the i nternet at http://www.epa.gov/ai r/oaqps/permits/ response/

.

3 See letter dated M arch 7, 20 02, from Steven C . Riva, Ch ief, Perm itting Section , USEP A Reg ion 2 to John H iggins, Ch ief, Bureau of Stationa ry Sour ces, DEC

. This letter sum marizes a n EPA review o f draft perm its (continued...)

3 IIof deficiency a t this time. Failure to properly administe r or enforce the program will resu lt in issuance of a Notice of Deficiency pursuant to § 502(i) of the Act and 40 CFR § 70.10(b) and (c).

A. Public Hearing

Petitioner allege s that DEC violated t he public partici pation requireme nts of 40 CFR § 70.7(h) by inappropriately denying its request for a public hearing. Petition at page 3. Specifically, Petitioner asserts that the Notice of Complete Application dated September 29, 1999, which initiated the 30-day public notice, did not announce that a public hearing was scheduled, nor did it inform the public how to request a hearing. Petitioner further contends that the DEC applied the wrong standard in reaching the decision to deny the Petitioner’s request for a public hearing. Specifically, Petitioner asserts that DEC applied the standard that governs when it can hold a hearing on its own initiative, rather than the standard that governs when DEC receives a request from a member of the public for a hearing. Petition at page 4. 4

This issue has bee n addressed in pr evious Orders. 5 The case-specific review of NYPIRG’s petition on Columbia’s permit indicates there are no substantive differences in fact between this petition and the petitions that were the subject of the previously-issued Orders referenced in note 5, regarding the public hearing issue. Specifically, Columbia’s Notice of Complete Application contained similar information to the notices in the other cases, there were no commenters other than Petitioner, as was the case before, and DEC applied the same standard

3 (...continued)
iss ued by t he DEC fr om December 1, 2001 throu gh Febr uary 28 , 2002. Through June 20 02, EPA pr ovided DEC with monthly updat es to suppl ement the inf ormation provi ded in the March 7, 2002 lett er. The purpos e of this EPA review w as to determ ine whe ther the D EC is m aking ch anges to p ublic notic es and to se lect perm it provision s as it committed in its Novemb er 16, 2001 letter.

4 The Petit ioner point s out that 6 NYCRR § 621.7 defines t wo types of hear ings: adjudicatory a nd legisl ative.Under 6 NYCRR § 621.7(b), DEC deter mines to hold a n adjudicat ory public hea ring when “subst antive and signif icant issues relating t o any findings or determina tions t he [DEC] is requi red to make” or where “any comments received from members of the public or other int erested parti es raise subst antive and signifi cant issues relati ng to the appl ication, and resol ution of any s uch issue may result i n denial of the permit applicat ion, or t he impositio n of signific ant cond itions thereo n.” Und er 6 NY CRR § 621.7(c ), DEC shall hold a legislative pu blic hearing if a significant de gree of pub lic interest exists.

5 The issue of denying a publi c hearing has been rais ed previousl y by the Peti tioner and a ddressed by t he Adm inistrator in six O rders resp onding to the petition s: In the M atter of No rth Shore Towe rs Apartm ents, Inc., Petiti on Number II-2000-06, J uly 3, 2002 (“Nort h Shore Towers”); In the Matte r of Tanagraphi cs Inc., Petiti on Number II-200 0-05, July 3, 2002 (“Tanagrap hics”); In the Matter of Rochdale Village Inc., Petition Number II2000-04, July 3, 2002 (“Ro chdale Village”); In the Matter of Kings Plaza Total Energy Plant, Petition Numb er II2000-03, Jan.16, 2002 (“Kings Plaza”); In the Matte r of Action Pa ckaging Corp., Petiti on Number II-2000-02, J an. 16, 2002 (“Acti on Packaging”); and In the Matt er of Albert Einstei n College of Medicine of Yeshi va Universi ty, Petition N umbe r II-2000 -01, Jan. 1 6, 2002 (“Yesh iva”). Eac h of these Orders is a vailable on the interne t at: http:/ /www.epa.gov/re gion07/progra ms/artd/ air/t itle5/ petiti ondb/petit iondb2000.htm. Addi tionall y, Issues B-F of this Order were also raised previously by Petitioner and a ddressed by th e Adm inistrator in these same six O rders.

4in each case, in determining wheth er to hold a heari ng. Because Petiti oner raises no iss ues in thispetition that are unique to Columbia, the petition is denied on this issue as it was in the abovereferenced Orders. The rationale of those determinations is hereby re-a ffirmed in this Order.

This determination does not mean that D EC may be inconsiste nt in the applicatio n of its own regulations. As previously discussed, New York’s regulations provide that when a member of the public requests a hearing on a draft title V permit, the determination to hold such hearing shall be based on w hether “a signif icant degree of public interest ex ists.” 6 NYCRR § 621.7(c)(1). Thus, to ensure a consistent approach and to prevent further confusion as to what standard applies to title V public hea ring requests, DE C has agreed to ex press in its public notices the standard of whether a significant degree of public interest exists (that is, the standard for holding a legis lative hearing un der 6 NYCRR § 621.7( c)), and to use su ch a standard to determine whether to hold a hearing on a draft title V permit. See November 16, 2001 letter at page 5. Failure to consistently express this standard and attendant procedures in public notices may result in a find ing of program def iciency pursuan t to 40 CFR § 70.10(b). A ccording to EPA’s program review, the DEC is substantially meeting this commitment. Seenote 3, supra

. In fact, such he arings have bee n held for a numbe r of draft title V p ermits. 6 Furthermore, where EPA concludes tha t there is a basis f or objecting to a pe rmit due to improper denial of a public hearing, EPA may order a timely objection to any permit pursuant to 40 CFR § 70.8(c)(3)(iii).

B. Permit Application

Petitioner’s seco nd claim alleges th at the applicant d id not submit a comple te permit application in accordance with the requirements of the Clean Air Act, 40 CFR § 70.5(c) and 6 NYCRR § 201-6.3(d), especially as these provisions incorporate provisions of CAA § 114(a)(3)(C). Petition at page 5. I n making this claim, Pe titioner incorpor ates a petition tha t it filed with the Admin istrator on April 1 3, 1999, contendin g that the DEC’s app lication form is deficient because even a properly completed form would not include specific information required by both th e EPA regulations a nd the DEC regulat ions. This earlier petition asks EPA to require corre ctions to the DEC pro gram.

Petitioner’s conc erns regarding t he DEC’s applica tion form are summa rized as follows:

1. The application f orm lacks an initia l compliance cer tification with re spect to all applicable requ irements. Without s uch a certifica tion, it is unclear w hether Columbia

6 E.g., Vil lage of Freeport (DEC Permit No. 1-2820-00358/00002); Orange Recycli ng and Ethanol Production Facilit y, Pencor Masada Oxynol, LLC (DEC Permit No. 3-3309-00101/00003); Poletti Power Project (DEC Permit No. 2-6301- 00084/00015); New York Organic Fertil izer Company (DEC Permit No. 2-6007­ 00140/00011); Keyspa n Energy’s Spagnol i Road Energy Cente r (DEC Permit No. 1- 4726-01500/00011); Con Edison’s Hudson Avenue Station (DEC Permit No. 2-6101-00042/00011); NYCDEP’s North River Waste Water Polluti on Control Plant (DEC Permit No.2-6202-00007/00015); and the Al Turi Landfill (DEC Permit No. 3-3330­ 00002/00039 ).

5was out of compliance and, therefore, whether DEC was required to include a compliance schedule in the titl e V permit;

2. The application f orm lacks a statem ent of the methods f or determining co mpliance with each applicable requirement upon which the compliance certification is based;

3. The application form lacks a description of all applicable requirements that apply to the facility. That is, t he form only requi res applicants to supply numerical c itations to regulations, unaccompanied by any description; and

4. The application form lacks a description of or reference to any applicable test method for determining compli ance with each a pplicable requir ement.

1. Initial Certification

EPA agrees with Petitioner that the compliance certification process in the application form utilized by Columbia University could enable applicants to avoid revealing noncompliance in some circumstan ces. The DEC form allowed an applic ant to certify tha t it expects to be in compliance with all applicable requirements at the time of permit issuance, rather than to make a certification as to the facility’s compliance status at the time of permit application submission. As provided for in 40 CFR § 70.5(c)(9)(i), permit applicants are required to submit: “a certification of compliance with all applicable requirements by a responsible official consistent with...section 114(a)(3) of the Act.” EPA interprets this language as requiring that sources certify their compliance status as of the time of permit application submission. The State and EPA agree that the application form submitted by applicants in New York prior to January 1, 2002, including Colum bia University, did not properly imple ment the EPA or the St ate regulations. Therefore, as detailed in the November 16, 2001 commitment letter, the State changed its forms and instructions accordingly. 7

EPA disagrees with Petitioner that we must object to this permit based on the use of a flawed certification form. In this case, Columbia certified on December 7, 1998 that it would be in compliance with all applicable requirements at the time of permit issuance, which occurred on August 3, 2000.

The publically available data from inspection and compliance records indicate that Columbia was in compliance at the time of permit application. Therefore, EPA does not believe

7 In accordance with the DEC ’s November 16 , 2001comm itment letter, the DEC permit application form

wascha nged to clea rly re qui re t he a pplica nt t o certif y as to complian ce wi th a ll

app li cab le req uir emen tsat the ti

me of applica tion subm ission. The application form an d instructio ns were change d to clearly require the applican t to describe t he methods used t o determine i nitial compliance st atus. Wit h respect to the ci tation i ssue, t he applicat ion instructi ons were revised to requir e the applicant t o attach to the appl ication copies of all documents (other t han published statutes, rules and regulations) that contain applicable requirem ents.

6that DEC would have issued a title V permit any different from the one ultimately issued ( ie include a compliance schedule) had the facility properly certified compliance at the time of application.

During the time bet ween submission of the application a nd permit issuance , Columbia continued to submit mo nitoring reports a s required by exis ting permits. As a r esult of these reports, NYSDEC identified some instances of alleged violations approximately four months prior to permit issuance, and issued Notices of Violation (NOV) to Columbia for certain alleged NO X violations on January 4 and April 4, 2001. 8 The DEC is continuin g to investigate the se alleged violation s. The regulation s at 40 CFR § 70.5(c)( 8) address the sit uation where a f acility proposes a compliance schedule in its application for a title V permit, to resolve admitted violations. Columbia did not admit to any vi olations in its applic ation, nor has it ag reed with DEC that the NOVs have merit. Thus, Columbia did not propose a compliance schedule, nor did DEC unilaterally create such a schedule. Until such time that resolution is reached on the nature and extent of the alleged violations, EPA is not required to object to Columbia’s permit due to a lack of a compliance schedule. 9 Furthermore, the permit shield does not protect Columbia from enforcement ac tion relating to the se alleged violat ions. Nothing in the p ermit shield in Columbia’s permit made any specific finding of compliance as to the NOXemission limits that were the subject of the NOVs issued by DEC. Thus, Columbia is not shielded from any NOX requirements that may be the subject of a future consent agreement or other administrative or judicial enforcement proceeding. Accordingly, EPA denies the petition with respect to the initial certification issue.

In any event, the permit provides a dequate means of assuring that the p ermittee does in fact comply with applicable requirements. The issuance of the permit triggers various attendant compliance requirements including the six-month report [70.6(a)(3)(iii)(A)], the annual report [70.6(c)(5)], and the requirement to promptly report permit deviations [70.6(a)(3)(iii)(B)]. Whether the permittee has complied with all these requirements -- which are enforcea ble by petitioner through citizen suit under Section 304 of the Act – is not a basis for objection to the permit itself.

2. Statement of Methods for Determining Initial Compliance

Petitioner cites th e regulations at 4 0 CFR § 70.5(c)(9)( ii), which requir e the statements in the permit application regarding the compliance status of the facility to include “a statement of

8 Issuance of a NOV is not a final judgemen t of a facility’s compliance status. It is the beginning of a process where the faci lity may submit informati on or evidence r elevant t o its compli ance record, the nature of the violations, and any mitigating circum stances.

9 When a final agr eement is r eached, the DEC must revise t he permit t o include any r equirements arisi ng from any adm inistrative order on consent or similar enforcement document. These m ay be incorporated as part of a compliance schedule.

7methods used for determining compliance.” Although the application form completed by Columbia University did not specifically require the facility to include a statement of methods used to determine initial compliance, in this case, the applicant did provide this information for all but one of the listed applicable requirements. On pages 8 through 13 of the application, the applicant descr ibes monitoring that is in place and is be ing used to determi ne compliance wi th regulations for opacity, reasonably available control technology for nitrogen oxides (NO X RACT), sulfur content in fuel, and potential to emit limits on NO X and SO 2 . This monitoring includes continuous monitors for opacity and NO X , supplier certif ications of sulfur content in fuel, and calcu lations of SO2 emissions using an automated data system and continuous fuel flow monitors. Although the facility did not specifically mention in the application how it determined it was in compliance with the NSPS subpart Dc, the monitoring for opacity and sulfur content that is conducted for other purposes also serves as monitoring for the NSPS. EPA has concluded that the Petitioner was not harmed by the omission of these initial compliance methods from Columbia University ’s application. Th e petition is there fore denied on th is point.

3. Description of Applicable Requir ements

Petitioner’s next p oint is that EPA regu lations call for th e legal citation to the applicable requirement to be accompanied by the applicable requirement expressed in descriptive terms. EPA has developed guidance, in the f orm of “White Pape rs” which were i ssued in order to enable States to take immediate steps to reduce the costs of preparing and reviewing initial part 70 permit applica tions. In “White Pa per for Streamlin ed Development of Part 70 Permit Applications” da ted July 10, 1995 (“ White Paper 1”), EPA clarified tha t citations may be us ed to streamline how applicable requirements are described in an application, provided the cited requirement is ma de available as p art of the public d ocket on the permi t action or is other wise readily availab le. The permitting authority may allow the applicant to c ross-referen ce previously issued preconstr uction and part 70 permits, State or lo cal rules and re gulations, State la ws, Federal rules an d regulations, and other documents th at affect the a pplicable requir ements to which the source is subject, provide d the citations are current, clear and unambiguous, a nd all referenced ma terials are cur rently applicabl e and available t o the public (e.g. , publically avail able documents include regulations printe d in the Code of Fede ral Regulations or its State equivalent).

Columbia’s permit a pplication contai ns codes or citati ons associated wi th applicable requirements that are readily available; that is, these codes refer to federal and state regulations that are printed in rule compilations and also are available on-line. Because not all of the applicable requ irements derived from Columbia’s ex isting preconstru ction permits are in rule compilations or available on-line, Columbia attached these permits to its application. Another applicable requirement that is not clearly described in the regulations is the provision corresponding to the NO X RACT requirements of 6 NYCRR § 227-2.4(c), because Columbia has a choice of compliance options according to that regulation. In this case, however, the information submitte d by Columbia on page s 12 and 13 of its app lication form ade quately describes its chosen compliance option. The application in this case included a complete citation

8of the applicable requirement, inc luding a descripti on of the applicab le emissions limit. Thu s, EPA believes that there was no need for a more elaborate narrative description. Ther efore, the petition is denied on this issue.

This issue regarding citations also was addressed in detail in the July 18, 2000, letter from Kathleen C. Callahan, Director, Division of Environmental Planning and Protection to Robert Warland, Director, Division of Air Resources, DEC. (“July 18, 2000 letter”) The letter explained that the DEC application form and/or instructions for its operating permits program should be clarified with respect to the “non-codified” documents that include applicable requirements, such as NO X RACT plans, pre-construction and operating permits, etc. EPA pointed out that the application and instructions should make it clear that all supporting information is required in the application with c lear cross-re ferencing to the emission point and a pplicable requir ement cited in the printed form. Accordingly, in its November 16 commitment letter the DEC agreed to amend the application in structions to ensur e that applicants include all docume nts that contain applicable requ irements (other t han published statu tes, rules and re gulations), with ap propriate cross-referencing. 10 The DEC is aware that the documenta tion necessary to insure the adequ ate public participation called for in 40 CFR § 70.7(h) must be available with the application during the public comment period.

4. Statement of Methods for Determining Ongoing Compliance

Petitioner’s fina l point is that the app lication form lac ks a description of or reference to any applicable test method for determining compliance with each applicable requirement. In Section IV - Emission Unit Information of DEC’s application form, there is a block labeled “Monitoring Information” that asks applicants to provide test method information as well as other monitoring inf ormation such as w ork practices a nd averaging meth ods. Columbia completed this section for all but one of the listed applicable requirements. As described above, the application ( pages 8 to 12) lists mo nitoring that is bein g used to determine compliance with regulations for opacity, NO XRACT, sulfur content in fuel, and potential to emit limits on NO X and SO 2 . Although the facility did not specifically mention in the application how it will monitor its compliance with the NSPS Dc, the monitoring for opacity and sulfur content that is conducted for other purposes may also serve as monitoring for the NSPS. Because the application included a description of or reference to applicable test methods and was correctly completed, Petitioner’s fourth issue regarding the application form is without merit and accordingly is denied.

C. Statement of Basis

Petitioner’s third claim alleges that the proposed permit is accompanied by an insufficient statement of basis. According to 40 CFR § 70.7(a)(5), each draft permit should include a

10 As previousl y discuss ed, DEC amended its a pplicat ion form and ins tructi ons in accor dance with t he Novemb er 16 comm itment letter.

9statement that sets forth the legal and factual basis for the draft permit conditions. Petition at page 7. Petitioner refers to the “Permit Description” included with Columbia’s draft permit as the statement of basis in this case.

The requirement for the “statement of basis” is found in 40 CFR § 70.7(a)(5) which
states:

The permitting authority shall provide a statement that sets forth the legal and factual basis fo r the draft permi t conditions (includ ing reference s to the applicable statutory or regu latory provisions)

. The permitting au thority shall send th is statement to EPA an d to any other per son who requests it

. The statement of basis is not a part of the permit itself. It is a separate document 11 which is to be sent to EPA and to interested persons upon request. This requirement for the statement of basis is not contained in 40 CFR § 70.6 which sets forth the required contents of the permit. In fact, 40 CFR § 70.6 (a) requires th at the permit conta in all the explana tion that ordinaril y would be necessary to determine whether the permit conditions have been accurately expre ssed. For example, the permit must contain the references to the applicable statutory or regulatory provisions forming the legal basis of the applicable requirements on which the conditions are based. 40 CFR § 70.6(a)(1)(i).

A statement of basis should contain a brief description of the origin or basis for each permit condition or exemption. It should highlight elements that EPA and the public would find important to review. The statement should highlight anything that deviates from simply a straight recitation of requirements. The statement of basis should support and clarify items such as any streamline d conditions, any so urce-specific monitoring require ments, and the per mit shield.

EPA has recently p rovided guidance to permitting author ities that address es the contents of a “statement of basis” in terms that aid both EPA and the public. 12 As a result, the DEC has incorporated certain elements into its “permit review reports.” 13 In the cited docum ents, EPA

11 Unlike p ermits, statem ents of ba sis are not en forceab le, do not se t limits and d o not oth erwise cre ate obligations as to the permit holder.

12 See lette r dated December 12, 2001 from George Pavlou, Director, Division of Environmental Pl anning and Protection to Keri N. Powell, Esq., New Y ork Public Interest Research Group, Inc., responding to NY PIRG’s March 11, 2001; November 16, 2001 DEC commitment lette r; let ter dated December 20, 2001, fr om EPA Region V to the Ohio EPA (available on the i nternet at http://ww w.epa.g ov/regio n07/pro grams/a rtd/air/title5/t5m emos/sb guide.p df); see also Notice of Defi ciency for t he State of Texas, 62 Fed. Reg. 732, 734 (Jan. 7, 2002 ).

13 In order t o comply with the requirements of 40 CFR § 70.7(a)(5), DEC has committed to prepare and (continued...)

10explains the “statement of basis” is to be used to highlight significant decisions or interpretations that were necessary to issuing the permit. These reports are not intended to be redundant to the permit but to assist in reviewing what is in the permit. Additionally, in a December 22, 2000 Order responding to petition for objection to the Fort James Camas Mill permit, EPA interpreted 40 CFR § 70.7(a)(5) to require that the rationale for selected monitoring method(s) be documented in the permit record. In re In the Matte r of Fort James Cama s Mill , (“ Fort James ”), Petition No. X-1999-1, at page 8 (De cember 22, 2000) (available on the internet at: http://www.epa.gov/Region7/programs/artd/air/title5/petitiondb/petitions/fort_james_decision19 99.pdf).

The regulation a t 40 CFR § 70.8(c)(3) (ii) requires tha t the permitting aut hority submit any information necessary to review adequately the proposed permit. Accordingly, EPA may object to the issuance of a permit simply because of the lack of necessary information. The missing information could be a stateme nt of basis or any ot her information d eemed necessa ry to review adequat ely the draft per mit in question. Since the statement of ba sis can serve a va luable purpose in directing EPA’s and the public’s attention to important elements of the permit and since it is important that EPA perform any reviews as quickly as possible, it is a required element of an approved program that EPA receive an adequate statement of basis with each proposed permit.

Both the draft permit of September 29, 1999 and the final permit of August 3, 2000 contained a Permit Description. Although this description does not provide all needed information on the permit, 14 EPA has concluded, in this case, that Petitioner’s claims regarding the Permit Description do not warrant objection to the permit, for the reasons described below.

In this case, it is possible to achieve a sufficient understanding of a source using other available docume nts in the permit re cord, including the permit applicatio n, the permit descriptions contained in the draft and final permits, and DEC’s Responsiveness Summary. Although Columbia is s ubject to applica ble requirement s that rely on sourc e-specific determinations, 15 the permit recor d contained suffi cient information describing these

13 (...continued)
make availabl e at ti me of issuance of draft pe rmits, a “permit re view report,” which will serve as DEC’s statement of basis. The contents of this permit review report are described in DEC’s Novem ber 16, 2001 com mitment letter.

14 The permit descripti on includes the nature of the “busi ness” (cent ral st eam plant at a large uni versit y, consisting of four fossil fuel-fired boilers each rated at 99.5 million British thermal units per hour (mmBtu/hr), firing na tural gas and residua l fuel oi l to genera te stea m for heating a nd cooling campus bui ldings); a discuss ion of the equipment a nd operations at the f acili ty; air permit appl icabil ity; and a discussion of some complia nce methods utili zed at the facili ty.

15 The strai ghtforward appl icable r equirements list ed in thi s permit as applying t o the boilers incl ude: (1) the opacit y requirements of 6 NYCRR § 227-1; (2) the limit of the sulf ur content of the fuel oil to 0. 30 percent by (continued...)

11requirements. Accordingly, in this instance a more detailed explanatory document was not necessary to understand the legal and factual basis for the draft permit conditions. Furthermore, there is no evidence that the Petitioner was harmed by the flaws in Columbia’s statement of basis. In fact, N YPIRG provided de tailed and thoughtf ul comments on Columbi a’s draft permit establishing that it had a basic under standing of its term s and conditions.

While failure to include a comprehensive statement of basis with the draft permit does not, in this case, constitute a reason to object to this permit, EPA can object to a permit on such grounds. In this instance, the substantive purposes of the statement of basis requirements were met through other available documents in the permit record. Accordingly, EPA does not believe that the circumstances of this case warrant an objection to the Columbia permit and, therefore, denies the petition on this issue.

Nonetheless, DEC’s permit issuance process now provides that a permit may not be issued in draft unl ess a permit revie w report has bee n prepared for the draft permit. This requirement also applies to issuance of draft permits for renewed, revised or modified permits. As discussed in detail in Section G, EPA is granting the NYPIRG petition to object to the Columbia permit on ot her grounds. The refore, when D EC revises the per mit in response to thi s Order, it will also prepare a per mit review repor t that meets the re quirements of 40 CFR § 70.7(a)(5).

D. Annual Compliance Certification

Petitioner’s fourth claim alleges that the proposed permit distorts the annual compliance certification requirement of the Clean Air Act § 114(a)(3) and 40 CFR § 70.6(c)(5). Petitioner alleges that the p roposed permit doe s not require the f acility to certify compliance with a ll permit conditions, but rather just requires that the annual compliance certification identify “each term or condition of the permit that is the basis of the certification.” Petition at page 9. Specifically, Petitioner is concerned with the language in the permit that labels certain permit terms as “compliance certification” conditions. NYPIRG notes that requirements that are labeled “compliance certification” are those that identify a monitoring method for demonstrating compliance. NYPIRG asserts that the only way of interpreting the compliance certification designation is as a way of identifying which conditions are covered by the annual compliance certification. Thus, NYPIRG asserts, permit conditions that lack periodic monitoring are

15 (...continued) weight pursua nt to the requirements of 6 NYCRR part 225; and (3) New Source Perfor mance Standards ( NSPS) from 40 CFR part 60. The requirements that rel y on source-s pecific determinat ions are ( 4) “Capping” emis sions limi ts p er 6 NYCRR § 201 -7 and (5) the NOXRACT requirements of 6 NYCRR § 227-2. As monitoring, Columb ia’ s per mit i nclu des c onti nuous emis sions moni tors (CEM) t o det ermi ne comp lia nce wi th t he NO XRACT requirement, continuous opa city monitor s (COM), fuel met ers and CEM for the capping, and record keeping of logs of fuel sul fur content

. The addit ional monitor ing that is needed t o assure compli ance is discussed bel ow in secti ons G.7 and G.9 through G.14.

12excluded from the annual compliance certification. The Petitioner claims that this is an incorrect application of state and federal regulations because facilities must certify compliance with every permit condition, n ot just those that ar e accompanied b y a monitoring requ irement.

EPA notes, first, that the language in the Columbia permit follows directly the language in 6 NYCRR § 201-6.5(e) which in turn, follows the language of 40 CFR § 70.6(c)(5) and (6). Section 201-6.5(e ) requires cer tification with ter ms and conditions co ntained in the per mit, including emission limitations, standards, or work practices. Section 201-6.5(e)(3) requires the following in the ann ual certificati on: (i) the identif ication of each t erm or condition of the permit that is the basis of the certification; (ii) the compliance status; (iii) whether compliance was continuous or intermittent; (iv) the methods used for determining the compliance status of the facility, currently and over the reporting period; (v) such other facts the Department shall require to determine the c ompliance status; a nd (vi) all complia nce certifica tions shall be submitt ed to the Department and to the administrator and shall contain such other provisions as the Department may r equire to ensure compliance with a ll applicable req uirements. Columbia University’s permit includes this language at Condition 14, Item 14.2.

EPA disagrees with Petitioner that “th e basis of the cer tification” should be interpreted t o mean that facilities are only required to certify the permit terms labeled as “compliance certification.” “Compliance certification” is a data element in New York’s computer system that is used to identify te rms that are rela ted to monitoring met hods used to assure compliance with specific permit conditions. Condition 14 delineates the requirements of 40 CFR § 70.6(c)(5) and 6 NYCRR § 201-6.5(e), which require annual compliance certification with the terms and conditions contain ed in the permit.

The referenc es to “compliance certification” found in the permit terms do not appea r to negate the DEC’s general requirement for compliance certification of terms and conditions contained in the pe rmit. Because the permit and New Yo rk’s regulation r equire the sourc e to certify complian ce or noncomplian ce, annually for terms and conditio ns contained in the permit, EPA is denying the pe tition on this point.

Nonetheless, in its November 16, 2001 letter, the DEC has committed to include additional clarif ying language re garding the annua l compliance cer tification in draf t permits issued on or after January 1, 2002, and in all future renewals so that the permit includes all the compliance certifications necessary to avoid any misunderstanding such as that Petitioner pointed out might occur.

Although this issue does not present grounds for objecting to the Columbia permit, the DEC has nonethele ss elected to take the appropriate steps to improve the administration of i ts program in this regard. As discussed in detail in Section G, below, EPA is granting NYPIRG’s petition on this perm it on other grounds. Therefore, wh en DEC revises the permit in response to this Order, it will also add language to clarify the requirements of the annual compliance certification r eports.

13E. Startup, Shutdown, Malfunction

Petitioner’s fifth claim is that the pe rmit does not assure compliance with a ll applicable requirements as mandated by 40 CFR §§ 70.1(b) and 70.6(a)(1) because it sanctions the systematic violations of applicable requirements during startup/shutdown, malfunction, maintenance, and upset conditions. Petition at page 9. Petitioner asserts that 6 NYCRR § 201­ 1.4 conflicts with E PA guidance and mu st be removed fro m the state implemen tation plan (SIP) and federally enforceable permits as soon as possible. In addition, Petitioner asserts that the permit lacks prop er limitations on whe n a violation may be excused and lac ks sufficient publ ic notice of when a violation is excused.

Permit condition 5, states, in part, “At the discretion of the commissioner a violation of any applicable e mission standard fo r necessary sch eduled equipment m aintenance, startup/shutdown conditions and malfunctions or upsets may be excused if such violations are unavoidable.” Pe titioner argues th at condition 5 is so e xpansive that it mak es emission limits very difficult to enforce and departs from EPA guidance that requires facilities to make every reasonable effort to comply with emission limitations even during startup/shutdown, maintenance and malfunction condi tions. 16 Accordingly, Petitioner asserts, the Administrator must object to the proposed permit because it does not include conditions to assure compliance with all applicable requirements as required by 40 CFR § 70.6(a)(1).

The four boilers operated by Columbia undergo frequent startups and shutdowns and require regular maintenance. The nature of this process and the control devices employed is such that more emissions will inherently be produced during t hese times than dur ing steady-state operation, especially in the case of opacity. These boilers vent to one stack, which is equipped with continuous monit ors for opacity, o xygen, and nitroge n oxides. Columbia r ecords all instances of opacity deviations and reports them to DEC quarterly. Columbia appears to be complying with the SIP at 6 NYCRR § 201.5(e)(1) and the State rule at 6 NYCRR § 201-1.4 (a) which allow that detailed reports of maintenance activities need not be submitted if the source employs continuous m onitors and submits q uarterly monitori ng reports.

16 See Mem orandu m from Kathleen M. Ben nett, Assistan t Adm inistrator for A ir, Noise an d Radiatio n, EPA , to Regional Administrators, Regions I-X, tit led “Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions,” (Bennet t Memo September 1982); memorandum from Kathl een M. Bennett, Assist ant Admin istrator for Air, Noise and Radiation, EPA , to Regional Ad ministrators, Region s I-X, titled “Policy on E xcess Emis si onsDuri ng St art up,Shut down , Mai nte nance, a nd Mal functi ons ,” d ated February 15,1983 (Bennet t Mem o February 1983); Memorandum from Steven A. Herm an, Assistant Administrator for Enforcement and Compliance Assurance an d Robert Perc iasepe, Assistant Adm inistrator for Air and R adiation to Region al Administrators, Regions I - X, titled “State Im plementation Plans: Policy Reg arding Exc ess Emissions D uring Ma lfunctions, Startup, an d Shutd own,” d ated Sep tember 20, 199 9 (“Sep tember 1999 G uidance ”); and M emora ndum from E ric Schaeffer, Director, Office of Regul atory Enforce ment, and John S.Seitz, Director, Office of Ai r Quality Planning and Standards to Regional Adm inistrators, t itled “Re-Issuance of Clarification - State Implementation Plans (SIPs): Policy Regar ding Excess Emiss ions During Malf unctions, Startup, and Shutdown,”dat ed December 5, 2001 (“December 200 1 Clarification”).

14Although DEC rece ives data from Colu mbia indicating de viations from the a pplicable opacity standard, EPA is not aware that DEC has issued any NOV’s or initiated enforcement action against Columbia for any opacity violations. In the reports that EPA has reviewed, Columbia does not explicitly request to be excused pursuant to 201-1.4. For example, in the annual certification dated August 25, 2001, Columbia reported a complete inventory of deviations by quarter and explained that each was due to start-ups, shut-downs and malfunctions. Columbia also reported that the corrective actions taken included revisions to maintenance procedures and revisions to the soot blowing schedule.

EPA is not aware of, and Petitioner has provided no evidence of, any instance where DEC relied on the excuse provisions of 6 NYCRR § 201-1.4 or the SIP at 6 NYCRR § 201.5(e) to provide blanket excuses for non-compliance merely because the incidents were repor ted. Rather Condition 5 provides that it is the DEC’s decision whether to pursue enforcement activities on a case-by-case basis, through the exercise of its enforcement discretion.

With respect to e nforcement disc retion, EPA recog nizes and approv es such provisions i n State SIPs in accordance with EPA guidance, and Condition 5 is modeled upon a provision in the New York SIP. It sets forth the notification requirements that a facility owner and/or operator must follow in the case of excess emissions caused by start-up, shutdown, malfunctions, or upsets. The conditions provide a detailed and thorough procedure to report and correct such violations. These n otice requireme nts are included i n the approved SIP a nd Columbia must adhere to them. Mo reover, failur e to notify the DEC of the emission violati on on a timely basis precludes consideration of the reason for the emission violation in order to mitigate the enforcement re sponse. This proce dure is required for occurrenc es where a sourc e hopes to avail itself of enforc ement discretion, but does not establi sh any right to be ex cused for the ex cess emission occurrence.

It is EPA’s view tha t the Act, as inter preted in EPA polic y, does not allow fo r automatic exemptions from compliance with all applicable SIP emissions limits during start-up, shut-down, malfunctions or upsets. Further, improper operation and maintenance practices do not qualify as malfunctions under EPA policy. Seenote 16, supra

. To the extent that a malfunction provision, or any provision giving substantial discretion to the state agency broadly excuses sources from compliance with emission limitations during periods of malfunction, EPA believes it should not be approved as part of the federally approved SIP. See In re Pacificorp's Jim Bridger and Naughton Electri c Utility Steam Gene rating Plants , Petition No. VIII-00-1, (“ Pacificorp ”), at page 23 (Novembe r 16, 2000), avail able on the intern et at http://www.epa.gov/region07/programs/artd/air/title5/t5memos/woc020.pdf.

In any event, as explained in the Pacificorp decision, “even if the provision were found not to satisfy the Ac t, EPA could not prop erly object to a pe rmit term that is der ived from a provision of the fe derally approve d SIP. Such a provisio n is inherently a pa rt of the ‘applica ble requirement’ as that term is defined in 40 CFR § 70.2, and the Administrator may not, in the context of reviewing a potential objection to a title V permit, ignore or revise duly approved SIP

15provisions.” See Pacificorp at 23-24.

The position set forth in Pacificorp was reiterated in the December 2001 Clarification which confirms tha t EPA’s September 2 0, 1999 guidance e ntitled “State Impl ementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown” (“September 1999 Guidance) p rovides guidance to States and EPA re garding SIP provisio ns related to exc ess emissions during malfunctions, startups, and shutdowns. It was not intended to alter the status of any existing malfunction, startup or shutdown provision in a SIP that has been approved by EPA. Similarly the September 1999 Guidance was not intended to affect existing permit terms or conditions regarding malfunctions, startups and shutdowns that reflect approved SIP provisions including opacity provisions, or to alter the emergency defense provisions at 40 CFR § 70.6(g). Existing SIP rules and 40 CFR § 70.6(g) may only be changed through established rulemaking procedures and existing permit terms may only be changed through established permitting
processes. Thus, EPA did not intend the September 1999 Gu idance to be lega lly dispositive with respect to any pa rticular proce edings in which a vi olation is alleged t o have occurre d. Rather, it is in the context of future rulemakin g actions, such as the SIP approval pr ocess, that EPA will consider the Septe mber 1999 Guidanc e and the statutor y principles on whi ch this Guidance i s based. SeeDecember 2001 Clarification at p. 1.

In sum, Condition 5 relates to SIP provisions governing the exercise of enforcement discretion regarding excess emissions and does not, itself reduce the effectiveness of any applicable requirements derived from State requirements. The DEC’s unavoidable noncompliance and e mergency requir ements are part of the approved SI P. Whether the SIP m eets EPA’s guidance is n ot an appropriate subject for an obj ection to a specif ic permit and is not a reason to object t o the permit. Acco rdingly, the petitio n is denied on this poi nt.

NYPIRG further a sserts that the re quirement of 40 CFR § 7 0.6(a)(1), that permits contain monitoring suffici ent to assure comp liance, also appl ies to the excuse p rovision of 6 NYCRR § 201-1.4 to assure that the provision is not abused. EPA agrees with this general proposition. However, since the DEC Commissioner has discretion to excuse certain violations, any abuse of the excuse provision would be by DEC and not by the source for simply asking for the excuse. In accordance with the provisions of the title V permit, the source is required to monitor compliance, and any violation for which an excuse is sought will be included in the facility’s deviation reports, semi-annual reports and annual reports. Petitioner has not demonstrated that any additional moni toring of the sourc e is required to a ssure proper ex ercise of the ex cuse provision by DEC.

As previously disc ussed, DEC’s curr ent rules at 6 NYCRR § 201-1.4 and the SIP at §201.5(e) provide the Commissioner with a discretionary authority to excuse unavoidable noncompliance and violations when certain conditions are met. Moreover, 6 NYCRR § 201­ 6.5(c)(3)(ii), as amended, clarifies that the DEC’s own rules do not authorize expansion of the Commissioner’s discretion. The DEC’s rules, as amended, provide that violations of a federal regulation may not be excused unless the specific federal regulation provides for an affirmative

16defense during start-up, shutdowns, malfunctions or upsets. See6 NYCRR § 201-6.5(c)(3)(ii). DEC’s response to comment letter to EPA and NYPIRG on the draft title V permit for Columbia 17 demonstrates to EPA that the DEC’s interpretation and application of section 201-1.4 is not inconsistent w ith the Act, as inte rpreted by EPA in it s guidance. In DE C’s Response to Comments Document, DEC acknowledges that it “cannot exercise more discretion than federal requirements allow.” Responsiveness Summary re: General Permit Conditions, No. 10, Page 4 of 7.

The permit term should be revised to be consistent with requirements of the Act and the applicable scope of 6 NYCRR § 201-1.4. Accordingly, for permits issued after January 1, 2002, DEC has committed to move this condition to the State side of th e permit. 18 EPA believes that the Commissioner is aware of the limits on the authority to excuse emission exceedances existing under the DEC’s ow n regulations, and believes that it is u nlikely that the Commi ssioner will exceed the discretion allowed under the State regulations. Accordingly, the petition is denied with respect to this issue.

Petitioner raised several additional points on the issue of start-up, shutdown and malfunction which warrant further discussion.

1. Petitioner states that New York’s regulation 6 NYCRR § 201-1.4 and the corresponding language in the permit do not conform to the September 1999 Guidance. The Petitioner generally alleges that the New York regulation has created a loophole for facilities complying with emission limits because facilities routinely use the excuse provision without proving the violation was unavoidable.

Petitioner suggests that terms addressed in the September 1999 Guidance should be added to the permit. We conclude that it is not necessary for the DEC to restate the September 1999 Guidance in th e permit as the guid ance is policy and does not constitute an applicable requirement. SeeDecember 2001 Clarification. In addition, in its November 16, 2001 Commitment letter DEC agreed that effective January 1, 2002, it would include the provision of 6 NYCRR § 201-1.4 on the State side of all permits. Seenote 18, supra

.

17 Letter from Elizabeth Clarke, Environmen tal Analyst, DEC, Region 2, to Steven C. Riva, Chief, Permitting Section, E PA Re gion 2, d ated June 16, 200 0, Respo nses to N YPIRG Com ments re : Genera l Permit Cond itions, num ber 10, U navoid able No ncom pliance an d Violatio ns, page 4 of 7. The response reads, “T his condition i s as expli cit as necessary a nd does not excuse or diminis h, in any way, t he accountabi lity of a source for polluti on exceedances. It set s forth a practical procedure for notif ying the agenc y.... [T]he agency use s engineeri ng judgment on a case-by-case bas is to make a de terminati on as to the unavoidable s tatus of an exceedance. The departm ent also can not exerc ise more discretion th an feder al requirem ents allow .”

18 DEC is su bstantially m eeting this co mmitm ent. See note 3. As dis cussed in deta il i n Sect ion G, belo w, EPA is g ranting N YPIRG ’s petition on this perm it on other g round s. Therefo re, when DEC r evises the p ermit in response t o this Order , it will als o remove the excuse provision that ci tes 6 NYCRR § 201-1.4 fr om the federal side of the per mit, and in corpora te the con dition into th e state side of th e perm it.

172. Petitioner asserts the permit apparently allows the DEC Commissioner to excuse the violation of any fe deral requirem ent by deeming the v iolation “unavoida ble.” As discusse d in section F, infra, the commissioner discretion conditions apply only to State requirements and cannot apply to federally promulgated requirements. In its November 16, 2001 Commitment letter DEC agreed that effective January 1, 2002, it would include the revised provision of 6 NYCRR § 201-6.5(c) (3)(ii) on the fe deral side of all p ermits. DEC is substa ntially meeting this commitment. Seenote 3, supra

.

3. Petitioner states that all significant terms must be defined in the permit. The Petitioner alleges that the permit is not practically enforceable because the permit lacks definitions for “malfunction,” “upset,” and “unavoidable.” EPA disagrees with the Petitioner on this issue. The purpose of the pe rmit is to ensure tha t a source opera tes in compliance with all applicabl e requirements. To the extent Petitione r argues that this r equirement exte nds to compliance w ith the SIP-based commissioner discretion provision, EPA agrees. However, the lack of definitions for the terms “ma lfunction,” “upse t” or “unavoidab le” does not, on its f ace, render th e permit unenforceable

. These are comm only used regulato ry terms and are not so inherently va gue as to render a permit using these terms practically unenforceable. Moreover, Petitioner has not demonstrated that DEC has improperly interpreted them in practice so as to broaden the scope of the excuse provision. In addition, in its November 16, 2001 Commitment letter DEC agreed that effective January 1, 2002, it will include the provision of 6 NYCRR § 201-1.4, which has not been approved into the SIP, on the State side of all permits. Seenote 18, supra

. This will help further assure that the excuse pr ovision is not expand ed beyond its prope r bounds.

4. Petitioner also states that the permit must define reasonably available control technology (RACT)

. DEC’s current r ules at 6 NYCRR § 201- 1.4(d) and the SIP a t 6 NYCRR § 201.5 require facilities to use RACT during any maintenance, startup/shutdown, or malfunction condition. The Petitioner claims that the proposed permit does not define what constitutes RACT or how the government or public knows whether RACT is being utilized at those times. As explained abov e, EPA cannot prop erly object to a pe rmit term that is der ived from a provision of the fe derally approve d SIP. Such a provisio n is inherently a pa rt of the “applic able requirement” as that term is defined in 40 CFR § 70.2, and the Administrator may not, in the context of reviewing a potential objection to a title V permit, ignore or revise duly approved SIP provisions. Pacificorp at 23-24; see alsoDecember 2001 Guidance at p.1.

Moreover, RACT is a defined term in the New York SIP. The SIP specifically defines RACT as the “[l]owest emission limit that a particular source is capable of meeting by application of control technology that is reasonably available, considering technological and economic feasibility.” 6 NYCRR § 200.1(bp). There is an identical definition in the current New York regulations that are not part of the approved SIP. 6 NYCRR § 200.1(bs). As explained above, EPA cannot reopen the issue of whether the SIP provision should have required a more specific definition of RACT in the context of deciding whether to object to a title V permit. In any eve nt, NYPIRG has fail ed to demonstrate that the RACT provis ion is deficient in this case. As a practical matter, it is not possible to set forth in advance a detailed definition of

18RACT that will address all possible startup, shutdown or malfunction events throughout the life of the permit. The specific techno logy that will constit ute RACT during such a period of exce ss emissions will depend on both the nature of the violation and the technology available when the violation occurs. The SIP provision al lows that determin ation to be made on a case by case ba sis by the Commissioner if and when she chooses to exercise her authority to excuse a violation.

Columbia is also subject to an opacity standard under the NSPS. The federal regulation at 40 CFR § 60.11(d) explains what facility owners must do during times of SSM to minimize emissions. Rather than using the expression “reasonably available control technology,” § 60.11(d) uses the phrase, “good air pollution control practice.” This rule further explains that the Administrator will determine whether acceptable procedures are being used based on information including, but not limited to, “monitoring results, opacity observations, review of operating and maintenance pro cedures, and ins pection of the sour ce.” Columbia may review these da ta to determine if it did everything it shoul d have to minimize e missions during SSM.

5. Petitioner next asserts that any title V permit issued to Columbia must require prompt written reporting of all deviations from permit requirements including those due to startup, shutdown, malfunction, and maintenance as required under 40 CFR § 70.6(a)(3)(iii)(B). Petitioner states t hat the permit must r equire written r eports of all devi ations.

As written, the permit only requires the permittee to inform DEC of an exceedance when seeking to exercise the excuse provision of 6 NYCRR § 201-1.4. Otherwise, the permit provides that written notifications be provided when requested to do so by the Commissioner. Prompt reporting of devi ations is required by 40 CFR § 70.6(a)(3 )(iii)(B) which s tates,

Prompt reporting of deviation from pe rmit requirement s, including those attributable to upset conditions as defined in the permit, the probable cause of such deviations, and any corrective actions or preventive measures taken. The permitting authority shall define “prompt” in relation to the degree and type of deviation likely to o ccur and the app licable require ments.

Reporting in order to preserve the c laim that the devia tion should be excu sed is not a required repor t. Deviations from an applicable re quirement are r equired to be rep orted regardle ss of the cause of the deviation and these reports are required by other provisions of the permit. See Discussion in Part F infra. For a violation to be properly excuse d, the DEC must prope rly apply the regulation authorizing such discretion and must properly document its findings to ensure the rule was reasonably applied and interpreted. As further discussed below, EPA denies the petition on this point.

F. Prompt Reporting of Deviations

Petitioner’s sixth c laim is that the per mit does not require prompt reporting o f all deviations from permit requirements as mandated by 40 CFR § 70.6(a)(3)(iii)(B). Petition at

19page 15. The Petitioner states that the only prompt reporting of deviations is that required by 6 NYCRR § 201-1.4, which governs unavoidable noncompliance and violations during necessary scheduled equipment maintenance, start-up/shutdown conditions and upsets or malfunctions. SeeCondition 17, Item 17 .2 (ii) of the fina l permit. Petitioner argues that any o ther deviations, including situations where the permit tee could have a voided a violation b ut failed to do so, w ill not be reported until the six-month monitoring report. The Petitioner alleges that six months cannot be conside red “prompt repo rting” in all case s.
EPA agrees with Petitioner’s comment. EPA raised this issue with DEC in the July 18, 2000 letter at Attachment III, item 2. The DEC may adopt prompt reporting requirements for each condition on a case-by-case basis, or may adopt general requirements by rule, or both. In any case, States are required to consider prompt r eporting of devia tions from permit c onditions in addition to the reporting requirements of the explicit applicable requirements. As discussed above, EPA does not consider reports submitted for the purpose of preserving potential claims of an excuse to meet prompt reporting requirements because these reports are optional, and they may not include all deviations, instead only those potentially unavoidable violations that the source seeks to have excused. All deviations must be reported regardless of whether the source qualifies for the excuse. Whether the DEC has sufficiently addressed prompt reporting in a specific permit i s a case-by-ca se concern unde r the rules applic able to the approv ed program, although a gener al provision applic able to various situ ations may also be a pplied to specific permits as EPA has done in 40 CFR § 71.6(a)(3)(iii)(B). 19

EPA has addressed the prompt reporting requirement with the DEC in order to clarify how the DEC will properly exercise this discretion. In the November 16 commitment letter, DEC agreed that for all permits issued on and after January 1, 2002, it will include a requirement for reporting deviations consistent with 6 NYCRR § 201-6.5(c)(3)(ii). Indeed, DEC is including such prompt repor ting language in ea ch permit that is now issued. For example , with respect to criteria pollutants, DEC now requires in every permit that, “For emissions...that continue for more than two hours in excess of permit requirements, the report must be made within 48 hours.” Additionally, DEC is now requiring in every permit that, “A written notice, certified by a responsible official consistent with 6 NYCRR Part 201-6.3(d)(12), must be submitted within 10 working days of the occurrence.” EPA finds DEC’s new standard permit c onditions setting for th procedures for prompt reporting to be reasonable and compatible with the federal regulations at 40 CFR § 71.6(a)(3)(iii)(B)).

As discussed in det ail in Section G, be low, EPA is granting NYPIRG’s petition o n this permit on other gr ounds. Therefor e, when DEC revis es the permit in re sponse to this Orde r, it will also incorporate these additional prompt reporting requirements into the permit. Therefore, EPA denies the petition on this issue.

19 These provisions detai l the prompt r eporting r equirement appl icable t o sources under the federa l operati ng
per mit pro gra m.

20G. Monitoring

Petitioner’s seve nth claim is that the permit does not ass ure compliance w ith all applicable requirements as mandated by 40 CFR §§ 70.1(b) and 70.6(a)(1) because many individual permit c onditions lack ade quate periodic mo nitoring and are n ot practically enforceable. Petition at page 16. The Petitioner addresses individual permit conditions that allegedly either lack periodic monitoring or are not practically enforceable. 20 The specific allegations for e ach permit condit ion are discussed below. EPA is grant ing Petitioner’s re quest that the Administrator object to issuance of the permit for several of the allegations, and denying Petitioner’s request for the remaining allegations, as delineated below.

Section 504 (a) and (c) of the Act makes it clear that each title V permit must include “conditions as are necessary to assure compliance with applicable requirements of [the Act], including the requirements of the applicable implementation plan” and “inspection, entry, monitoring, compliance certification, and reporting requirements to assure compliance with the permit terms and conditions.” In addition, Section 114(a) of the Act requires “enhanced monitoring” at major stationary sources, and authorizes EPA to establish periodic monitoring, recordkeeping, and reporting requirements at such sources. See alsoCAA section 504(b) (EPA may promulgate regulations under title V prescribing procedures and methods for monitoring that are sufficient for determining compliance).

The regulations a t 40 CFR § 70.6(a)(3) specifically re quire that each p ermit contain “periodic monitoring sufficient to yield reliable data from the relevant time period that are representative of the source's compliance with the permit” where the applicable require ment does not require periodic testing or instrumental or noninstrumental monitoring (which may consist of recordkeeping designed to serve as monitoring). In addition, 40 CFR § 70.6(c)(1) requires that

20 With respect to l ack of what the Petit ioner refers t o as adequate "periodic" monitoring, NYPIRG cites two sepa rate regula tory requ iremen ts: 40 CFR § 70.6 (a )(3) wh ich requir es mon itoring suff icient to yield reliable data from the relevant t ime period that are re presentative of the source’s compliance;and § 70.6 (c)(1) which requires permits to contain testing, monitoring, reporting and recordkeeping requirements sufficient to assure compliance wit h the terms a nd conditions of the permit

. In all the monitori ng issues presented here, where we have concluded that additiona l monitori ng is needed, either t he underlying a pplicable requirement imposes no monitor ing of a periodic nature or the applicable r ule contains suff icient peri odic monitoring but it was not properly carried over into t he permit. Therefore, we are address ing them exclus ively under 40 CFR § 70.6(a)(3) and do not rel y on 40 CFR § 70.6(c)(1)

. The scope of applicabi lity of § 70.6(a)(3) was addressed by the US Court of Appea ls for t he DC Circuit i n Appalachian Power v. EPA, 208 F.3d 1015 (D. C. Cir. 2000) . The court concluded that , under sect ion 40 C.F.R. §70.6(a)(3)(i )(B), the peri odic monitoring rule appli es only when the underlying applicabl e rule requires "no periodic test ing, specifi es no frequency, or requires only a one-time test." Id. at 1020. The Appalachian Power court did not address t he content of the periodic monitoring rule where it does apply, i.e. , the question of what monitoring would be suffici ent to "yi eld reli able data from the rel evant ti me period that are representati ve of the source’s compliance with the permit, as is required by 40 C.F.R. §70.6(a)(3)(i)(B) and 6 N YCRR § 20 1-6.5(b)(2). It is this issue that i s raised by the peti tion at bar. With r espect t o practical enforceabilit y, the Pet itioner cites the U.S. EPA’s Periodic Monitoring Guida nce, September 15, 1998, at 16 which has si nce been vacat ed by Appalachian
Power

.
21all part 70 permits contain, “Compliance certification, testing, monitoring, reporting, and recordkeeping requirements sufficient to assure compliance with the terms and conditions of the permit.” These r equirements are also incorporate d into New York’s r egulations at 6 NYC RR § 201-6.5(b).

Decisions by the U.S. Court of Appeals for the District of Columbia Circuit shed light on the proper interpretation of these requirements. Specifically, the court addressed EPA’s compliance assurance monitoring (“CAM”) rulemaking (62 Fed

. Reg . 54940 (1997) (promulgating, inter alia, 40 CFR part 64) in Natural Resourc es Defense Counc il v. EPA , 194 F.3d 130 (D.C. Cir. 1999), and reviewe d EPA's periodic mon itoring guidance u nder title V in Appalachian Powe r Co. v. EPA , 208 F.3d 1015 (D.C. Cir. 2000).

EPA first summarized the relationship between Natural Resourc es Defense Counc il and Appalachian Power and described their impact on monitoring provisions under the Clean Air Act in two orders resp onding to petitions un der title V reque sting that the Adminis trator object to certain permits. See In re Pacificorpand In re Fort James Ca mas Mill

. Please see pages 16-19 of the Pacificorp order for EPA's complete discussion of these issues. In brief, given the clear, multiple statutory d irectives for ad equate monitoring in permits, and in a ccordance with the D.C. Circuit decisions, EPA concluded that where the applicable requirement does not mandate any periodic testing o r monitoring, the re quirement of § 70.6 (c)(1) that monit oring be sufficie nt to assure compliance will be satisfied by establishing in the permit “periodic monitoring sufficient to yield reliable data from the relevant time period that are representative of the source's compliance with the permit.” 40 CFR § 70.6(a)(3)(i)(B). EPA also pointed out that where the applicable requirement already requires periodic testing or instrumental or non-instrumental monitoring, the court of appeals has ruled that the periodic monitoring rule in § 70.6(a)(3) does not apply even if th at monitoring is not su fficient to assur e compliance. In such circumstanc es, EPA found, the separate regulatory standard at § 70.6(c)(1) applies instead. Furthermore, where 70.6(a)(3)(i)(B) applies, it satisfies the general sufficiency requirement of 70.6(c)(1). T he factual circumstances of Pacificorp and Fort James Camas Mill are analogous to this case. Accordingly, the reasoning of t hose decisions is be ing followed in this c ase as well.

Facility-Specific Petition Issues 21

1. Condition 3 (Mainte nance of Equipme nt)

Petitioner alleges that general permit Condition 3, item 3.1, citing 6 NYCRR § 200.7, should not be includ ed in the Columbia pe rmit unless Columbia U niversity actuall y operates pollution control equipment. This condition states that pollution control equipment should be maintained according to ordinary and necessary practices, including manufacturer spec ifications.

21 Issues G.1-3, 5, 6 and 8-10 were addressed previously. (see Footnote 2) Most recentl y, these iss ues were address ed in the Order responding t o the “North Shor e Towers” peti tion, on pages 24-29.

22The Petitioner also alleges that if there is control equipment, such condition must be supplemented with monitoring. Petition at page 17. In DEC’s Response to Comments, DEC stated that this condition is a general requirement that is applied to all air permits, and that the condition is included even where no applicable requirement necessitates the use of control equipment. DEC further stated that control equipment maintenance plans are typically submitted as part of the app lication, but do not b ecome enforce able parts of the permit. Responsive ness Summary re: General Permit Conditions, No. 8, page 3 of 7.

Petitioner states t hat if 6 NYCRR § 200.7 d oes not apply to Colum bia University, thi s condition must be de leted from the pe rmit. EPA disagree s with Petitioner. Ma ny SIPs contain generic requir ements for facil ities to maintain all equipment in prope r condition. These generic requirements are typically provided in the general permit conditions section of the title V permit. Permitting authorit ies have discret ion to develop such general permit c onditions that apply to all title V sources. EP A also is aware th at some facilities employ control equ ipment although not mandated to do so by any specific applicable requirement; thus, including the general SIP condition is not improper.

In this case, the E mission Unit Definiti on at Condition 24, It em 24.1 of the fina l permit states that all four boilers have low NO Xburners and one boiler also has flue gas recirculation (FGR). Therefor e the record is c lear that this gene ral condition does have practical application to Columbia, and it is pr oper to include it in the permit.

Furthermore, EPA d isagrees with Peti tioner that monitor ing must be added to t his provision. Where control equipment is installed pursuant to an applicable requirement, DEC includes such requirement under the emission units section of the title V permit, not the general permit condition section. To support such a requirement, DEC would then include monitoring sufficient to assu re compliance. I n this particular c ase, the documen ts available to EPA indicate that Columbia operates and maintains its control devices at its own option, rather than pursuant to a requirement to do so. Therefore, EPA is not mandating that any specific monitoring for the control equipment be included at this time. In cases where a control device is maintained pursuant to an app licable require ment, monitoring sho uld be provided und er the emissions un it section as the DEC d eems necessary , and not under the general permit c ondition section of title V permit. Theref ore, EPA denies th e petition on this poin t.

2. Condition 4 (Unpe rmitted Emission Sour ces)

Petitioner also raises concern about Condition 4, Item 4.1, relating to unpermitted emission sources. The condition, restating 6 NYCRR § 201-1.2 (adopted March 20, 1996), provides that if an existing emission source was subject to the permitting requirements of 6 NYCRR part 201 at the time of constructi on or modification and the owner or o perator failed to apply for a permit, then the owner or operator must now apply for a permit. The condition further states th at the emission sour ce or facility is s ubject to all regu lations that were applicable to it at the time of co nstruction or modif ication and any su bsequent require ments applicable to

23existing sources or facilities. Petitioner asserts that the condition is confusing because if the facility is subjec t to NSR but failed to o btain a required NSR permit, a clea r requirement to obtain an NSR permit should be in the per mit. Petitioner arg ues that it is unclea r from the permit or the applicatio n whether the fa cility is subject to a pre-existing per mit. Petitioner is als o concerned that a source may not be subject to penalties if it applies for a permit as required by condition 4.1(a). Petition at page 19.

EPA notes that this provision does not relieve the permitting authority or permittee from including construction permit conditions in the permit. In addition, if the facility is in violation because it does not have the required construction permits, the operating permit must include a compliance schedule. 40 CFR § 70.6(c)(3). Condition 4 expands on what is required by the SIP at 6 NYCRR § 201.2(a) – that no person shall commence construction or proceed with a modification of an air contamination source without ha ving a valid permit – by naming some additional terms f or those who violat e permitting requi rements.

NYPIRG’s specific concern that Columbia’s permit shield precludes the imposition of penalties is unfounded. The permit shield provides that compliance with the conditions of the permit is deemed to be compliance wi th applicable re quirements for those applicable requirements spe cifically identif ied in the permit or those requireme nts that the State spe cifically identifies as not-applicable. 40 CFR § 70.6(f). A permit shield can not exonerate or protect from enforcement a facility that lacks required construction permits. Therefore, if it were later discovered that Columbia lacks a construction permit, the permittee would need to apply for the appropriate per mits, the title V per mit would be reope ned, and the fac ility may be subject to appropriate enf orcement action s.
In the present case, Columbia’s Permit Description states that neither PSD nor NSR are applicable to the facility, because of federally enforceable capping limitations. These limits were applied to Columbia through previous construction permits. This description, together with the statement in Conditions 37 and 38 that a PSD cap is being set, constitute an extension of the permit shield. Belo w in sections G.7., G.10., G.13. and G.14., EPA is grantin g this petition with respect to several flaws in those capping limitations. Nonetheless, Columbia did apply for and receive constr uction permits fro m the DEC, as was its o bligation. The eff ect of the permit s hield in this case is that Columbia is shielded from the need to apply for a major PSD permit for the currently operating boilers. Any other need for construction permits that may exist from prior actions, or that arise in the future, is not protected by the permit shield, nor is this obligation compromised by Condition 4. Finally, Condition 4 directs what the permittee must do to achieve compliance; it does not address the penalties that may result from non-compliance. Therefore, the condition does not preclude the public, DEC or EPA from bringing an enforcement action and seeking pena lties from the fac ility. Accordingly , EPA denies the pe tition on this point.

3. Conditions 7 and 8 ( Air Contaminants in C ontrol Devices)

Petitioner alleges that the permit must specifically explain how Conditions 7 and 8,

24addressing the ha ndling of air conta minants collected in air cleaning de vices, applies to Columbia University. Petitioner further asserts that the permit must include recordkeeping requirements to assure that the facility complies with these requirements. Petition at page 19.

EPA denies the petition on this point. The control devices installed on the boilers at Columbia University do not collect air contaminants. As su ch, there are n o collected mate rials that require recycling or disposal, or which require special handling to avoid reintroduction to the atmosphere. Further, as stated in response to issue G.1, above, States have discretion to include language from the general provisions of the SIP as general permit conditions. Where an applicable requ irement specifie s a control device that collects con taminants, then ap propriate monitoring require ments must be include d under the emissio ns unit section of th e title V permit.

4. Condition 10 (Exe mpt Activities)

Petitioner states that the activities claimed as Exempt Sources as per 6 NYCRR § 201­ 3.2(c)(44) may n ot truly fall under the definition of r esearch and de velopment (R&D) a ctivities, and therefore may not truly qualify for exemption from inclusion in the title V permit. Petitioner particularly high lights a concern a bout Columbia’s use o f coatings that emi t VOC’s and air toxics. Petition at pa ge 20. In its applic ation, Columbia lists t hree exempt gra phic arts processes, 160 exempt laboratory exhaust vents, and 10 exempt R&D activities. EPA has reviewed the regulatory statu s of these specif ic activities, and we agree that DE C has correctly e xempted these activities from the permit.

New York’s title V rules regarding exempt sources state that: “Owners and/or operators of stationary sources subject to Subpart 201-6 may consider the activities listed under Section 201-3.2 to be exempt activities unless such activities are subject to an applicable requirement.” See6 NYCRR § 201-3.1(b). Thus, only if there are federally enforceable requirements that apply to these R&D activities, would they not be considered exempt under 6 NYCRR § 201-3.2. EPA has found no suc h requirements, t hus the title V perm it need not be reop ened for this

reason.
Columbia’s application states that its graphic arts processes qualify for exemption from air pollution control requirements in the SIP at 6 NYCRR part 234. In stating this, Columbia also asserted that the VOCs in its inks are not A-rated contaminants, thus further exempting the graphic arts processes from regulation under 6 NYCRR § 212.7(p). 22 In order to understand and assist the review of the permit, whe n DEC prepares a statement of basis ( SeeSection C, supra ), it should also specify that the materials used in Columbia’s graphic arts processes have not been

22 According to 6 NYCRR § 212.9, an “A” rated cont aminant is , “An air cont aminant whose dis charge result s, or may res ult, i n serious adverse eff ects on receptors or the environment. These eff ects may be of a health, economic or aest hetic nat ure or any combinat ion of these.” Also according to 6 NYCRR § 212.9, DEC has the discretion t o consider the emissi on rate potential in addition to several other fact ors when considering how to rate a
contam inant.

25given an A-rating.

EPA believes ther e is enough informa tion about the natur e of the R&D activit ies to determine the applicability of title V. According to the SIP at 6 NYCRR § 201.6(j), laboratory exhaust vents are exempt from permitting. This is also consistent with NYSDEC’s current regulation at 6 NYCRR § 201-3.2(c)(40), which exempts laboratory exhaust systems from permitting requir ements.

The information provided in the List of Exempt Activities attached to the application indicates that Columbia’s laboratory operations are used for academic purposes, and are vented from the same build ings where acad emic research activities are c onducted. In the p reamble to its proposed revisions to the rules at 40 CFR part 70, EPA suggested a definition of R&D activities that may be relevant to the current discussion:

“Research and development activities means activities conducted to test more efficient production processes or methods for preventing or redu cing adverse environmental impacts, provided that the activities do not include the p roduction of an intermediate or final product f or sale or exch ange for commerc ial profit, and activities cond ucted at a research or lab oratory facility that is operate d under the clo se supervision of technically trained personnel the primary purpose of which is to conduct research and development into new proce sses and produ cts and that is not engaged in the manufacture of products for sale or exchange for commercial profit, except in a de minimis manner.” (60 FR 45565, August 31, 1995)

This definition focuses on the intent of the research activity, not the nature of it. Therefore, if the purpose of the processes described on the exemption form of Columbia University’s application is not the sale for p rofit of a manufa ctured product, then it is reasona ble to classify the se activities as R&D f or purposes of air permitting. The SIP a t 6 NYCRR § 228.1(h)( 1) reflects this principle by specifically exempting all R&D activities that involve surface coating, which “produce a product for study rather than eventual sale.” Columbia’s primary standard industrial classification code is in major group 82, Educational Services. The information in the record before EPA does n ot indicate that Col umbia engages in th e sale for profi t of property rel ated to these activities. Because EPA sees no deficiency in the permit as to this issue, we deny the petition.

5. Condition 12 (Ope ration in Accord ance With Applic able Plans)

Petitioner assert s that facility lev el Condition 12, Item 12.1(i), which sa ys the facility shall operate in a ccordance with any accidental r elease plan, re sponse plan or com pliance plan, is problematic bec ause the require ments in these docu ments should be inco rporated into the permit as permit terms. The Petitioner asserts that such documents, if not incorporated, should be clearly cross r eferenced in th e permit. Petitione r also suggests tha t this general con dition should be deleted from the permit altogether since it adds nothing to the permit. Petition at page 20.

26EPA disagrees with Petitioner that all types of plans must be part of a title V permit. In certain cases a facility must comply with a plan that is not part of the title V permit. For instance, risk management plans under 112(r) need not be incorporated into a title V permit. Thus, DEC’s general condition is useful to the title V permit since it also serves to remind the source and the public of those plans that are not part of the title V permit. The general condition

can serve as a r eminder to the per mittee to comply with and apply for re quisite permit amendments on a timely basis. Therefore, this facility-level condition does serve a purpose.

However, EPA doe s agree that cer tain documents shou ld be properly cr oss-referenc ed in title V permits. For example, where a facility is subject to plans such as a NOXRACT plan or a start-up, shut-down and malfunction plan under a maximum achievable control technology (MACT) standard, the permit must specifically say so, and properly incorporate that plan by reference. In this case, the Petitioner does not allege any specific plans that should have been, but were not, included in the permit as an applicable requirement. Therefore, EPA is denying the petition on this issue.

6. Condition 14 (Risk Ma nagement Plans)

The Petitioner alleges that the general permit condition, Condition 14, Item 14.3, which states “[r]isk management plans must be submitted to the Administrator if required by Section 112(r)” should state whether the facility is or is not subject to 112(r). Petition at page 21.

While EPA agrees with Petitioner that this provision is very general and does not provide information regarding the applicability of § 112(r) to this particular source, we do not believe that the absence of such a determination provides a basis for EPA to object to this particular permit. Columbia did not submit a Risk Management Plan (RMP) to EPA under § 112(r) of the Act and 40 CFR part 68, 23 and given what we know about the type of emissions activi ties at this source, it is reasonable to assume that Columbia is not subject to these statutory and regulatory requirements. EPA finds that DEC’s failure to specify whether Columbia is subject to § 112(r) and part 68 was therefore at most harmless error 24 that did not prejudice the Petitioner or hinder the Petitioner’s ability to obtain clarification on this issue.

Furthermore, DEC did not take delega tion of § 112(r), a nd therefore, E PA is responsible for implementing such requirements in New York. Because all applicable requirements must be

23 All Risk Management Plans are filed wi th EPA and EPA can verif y the submission of an RMP by contacti ng the RMP Reporting Cent er at (703) 816-4434.

24 See e.g. Massachusetts Trustee s of Eastern Gas & Fuel Associat es v. United States , 377 U.S. 235, 248 (1964) (an err or can be dis missed as har mless “when a mist ake of the admini strat ive body is one that cl early had no bearing on the pr ocedu re used o r the substa nce of the decision re ached” ); Braniff A irways, In c. v. Civil Aeronautices Bd. , 379 F.2d 453, 466 (D.C. Cir. 1967) (“The Supreme Court’s opini on reflects t he concern that agencies not be reversed for error that is not prejudicial.”).

27included in title V permits, during the early stages of implementation of New York’s title V program, EPA aske d DEC to include a ge neral requirem ent regarding § 1 12(r) in all permi ts (based on language prepared by EPA). New York has included such general language on § 112(r) in all title V permits as requested by the EPA, and although we agree with Petitioner that this condition is not optimal, as discussed above, the circumstances of this case do not warrant objecting to the pe rmit on this issue. The refore, EPA den ies the petition on th is point.

7. Condition 24 (Emission Unit Definition)

The Petitioner remarks that the Emission Unit Definition at Condition 24, Item 24.1, includes a statement that only three of the four boilers are ever operated simultaneously. Petitioner asserts that this language must be separated and made into a free-standing requirement. Petition at page 21. DEC responded to Petitioner’s comments by promising to include in the permit a require ment that the oper ator keep reco rds in a log book indic ating which boiler s are in operation at a time.

EPA notes that the f inal permit contai ns no condition that a ssures this opera ting scenario is followed. There is no written requirement that the operator keep logs noting which boilers are in operation at a time. According to the construction permit issued on May 17, 1999 (1999 permit), the fac ility relies upon thi s operating scena rio of maintaining o ne boiler off-lin e at all times for purposes of avoiding applicability to PSD for NO X and SO 2 . If all four boilers are ever operated simultaneously, the 1999 permit would be a sham, and Columbia’s continued operation may trigger several major source permitting requirements. Therefore EPA agrees with Petitioner that a requireme nt to never opera te more than thre e boilers simultane ously must be include d as a federally enfo rceable applic able requireme nt in the permit. DEC must reopen the pe rmit to include this requi rement, as well a s the monitoring con dition it promised in it s responsiveness
summary.
EPA also notes that Columbia currently does keep daily records of operating hours of each boiler. In the monthly CEM Summary Reports, the operator indicates the number of hours each boiler ope rates each day

. With this record ing system, it is possib le that a daily rec ord will show all four boilers operating for some hours in a single day. In reviewing the records submitted as part of the semiannual report for the period February 3, 2001 to August 2, 2001, EPA noted several instances where all four boilers operated in one day. In each instance, one or more boilers had a very small number of hours, usually less than 10. EPA recommends that Columbia make a note in its log on days where each boiler operates some hours, certifying that the overlap in hours did not occur for more than three boilers at a time.

8. Condition 27 (Requ ired Emission Tests )

Petitioner alleges that Condition 27 of Columbia University’s permit which cites the requirements under 6 NYCRR § 202-1.1 is incomplete. The Petitioner comments that Condition 27, “Required Emissions Tests,” includes everything required under 6 NYCRR § 202-1.1, except

28the requirement that the permittee “bear the cost of measurement and preparing the repor t of measured emissions.” Petitioner cites EPA’s “White Paper Number 2 for Improved Implementation of the Part 70 Operating Permits Program” dated March 5, 1996 (“White Paper 2”) which states t hat “it is genera lly not acceptabl e to use a combinat ion of referenc ing certain provisions of an ap plicable requir ement while para phrasing other pr ovisions of that same applicable requ irement. Such a pr actice, partic ularly if coupled with a permit shield , could create dual requirements and potential confusion.” Petition at page 22, citing White Paper 2, Section II.E.

EPA disagrees with Petitioner that the omitted clause fr om 6 NYCRR § 202-1.1 ne eds to be added to Condition 27. The permit unambiguously states that 6 NYCRR § 202-1.1 is an applicable requirement. In addition, 6 NYCRR § 202-1.1 places the burden of conducting and reporting any re quired emissions te sting on the permitte e. EPA does not find the omitted clause to have resulted in a defect in Columbia University’s permit since omitting who shall bear the cost of conducting and reporting mandatory emissions tests does not relieve the permittee from the requirement to perform and report such tests. Furthermore, EPA does not believe a reasonable interpretation of the permit would lead a reader to conclude that anyone other than the permittee should b ear the costs of m easuring and test ing emissions. For this reason, EPA finds it unnecessary to c hange Condition 27 a s requested by Pet itioner. EPA denie s the petition on this issue.

9. Condition 30 (Visib le Emission Limits)

The petition conta ins many separate allegations of pe rmit flaws regar ding applicable requirements and monitoring relating to opacity emissions: (a) The Petitioner alleges that the permit lacks any k ind of periodic mon itoring to assure c ompliance with the applicable opac ity limitation found in th e SIP at 6 NYCRR § 211.3

. Petition at page 22

. The Petitioner spe cifically points to condition 30 which prohibits the facility-wide emissions at Columbia University from exceeding 20% opacity over a six minute average, and 57% in any single six minute period during each hour. (b) Petitioner remarks that unit-specific conditions 39 and 40, citing 6 NYCRR § 211.3, which DEC included in re sponse to NYPIRG’s comments on the dra ft permit, have the same flaws as Condition 30. Petition at page 23; (c) Petitioner alleges that Conditions 43 and 45, citing 6 N YCRR § 227-1.3, do not reflect the cur rent SIP, and do not c ontain sufficient monitoring. Petition at page 26.

(a) EPA disagrees with the Petitioner that the permit needs to include monitoring for the facility-level opacity limitation listed in Condition 30, citing the SIP at 6 NYCRR § 211.3. Because different emissions units can create opacity through different processes (combustion, material storage) and reach the atmosphere in different ways (stacked, fugitive), pe rmittees may not know how to comply with a facility-wide monitoring condition. Indeed, an operator may be unable to conduct the same kind of mon itoring at each op acity-emitting emi ssions unit at a facility. Therefore, it is more appropriate to create monitoring in the Emission Unit Level section of the permit. Although EPA denies the petition with respect to facility-level Condition

2930, EPA discusses the adequacy of the unit-specific opacity monitoring in subsections 9(b), 9(c) and 11(a), below.

(b) In response t o the allegation th at the permit lack s any kind of perio dic monitoring to assure compliance with the facility level opacity limitation found at Condition 30, citing the SIP at 6 NYCRR § 211.3, DEC created conditions 39 and 40, citing the maximum and average opacity allowed under § 211.3, respectively. These conditions apply specifically to the four boilers when firing natural gas or residual oil. As stated above in Section E., these boilers vent through a common stack which already has a continuous opacity monitor (COM) installed. Petitioner is correct that neither of these conditions specifies the method or frequency of monitoring that will be used to demonstrate compliance. Furthermore, the only place that mentions this COM is the Permit Description in the introduction to the permit.

EPA agrees with th e Petitioner that th e permit must includ e monitoring suffic ient to assure compliance with Conditions 39 and 40, and is therefore granting the petition on this issue. Below in subsection 9(c), EPA discusse s the reasons for granting this petiti on with respect to Conditions 43 and 45, which contain more restrictive limits than those in Conditions 39 and 40. The monitoring that is required for those conditions will suffice as monitoring for conditions 39 and 40. When DEC revises the permit to address this objection, it may list the required monitoring in each of these condition s, or DEC may wish to s treamline these r equirements following the guidance in White Paper 2. 25 Accordingly, DEC may choose to state that although compliance with the SIP at part 227 assures compliance with the SIP at part 211, both rules are applicable.

(c) Petitioner identifies a SIP-approved version of the opacity rule in 6 NYCRR part 227 that is different from the curren t State rule, and a sserts the permit s hould include the SIPapproved rule. Petitioner also asserts here that periodic monitoring must accompany each opacity require ment that is placed in the permit. At the time Columbia Univer sity submitted its permit application, the SIP-approved opacity rule at 6 NYCRR § 227.4 was very different than the State’s adopte d rule. In 1999, DE C submitted a revise d opacity rule to EP A for approval in to the SIP. EPA approved this revised rule on April 19, 2000 (65 FR 20905), effective on May 19, 2000. Thus, DEC was correct to amend the permit between the draft and final versions, and incorporate the newly approved federally enforceable opacity rule in Conditions 43 and 45 of the final permit eff ective August 3, 20 00. Thus, this portio n of Petitioner’s c laim is without merit.

25 In White Paper 2, EPA presented a procedure where by States and sources can determine t he set of permit ter ms and conditions that wi ll ass ure compliance with all applicabl e requirement s for an emis sions point or group of emissions points so as to eliminate redundant or conflicti ng requirements. In each case , a source may request t o subsume one or more le ss rest ricti ve provisi ons into a more r estrictive provi sion or create a new provision which c ontains all th e most re strictive term s of the sub sumed provision s. The pe rmitting au thority m ay gran t this request, p rovided the perm it and the state ment o f basis exp lain that com pliance w ith the new or mor e restrictive ru le

assures compliance wit h the other rule(s)

. This anal ysis makes i t clear that al l relat ed rules a re applicable to t he source, and a re covered by t he permit shi eld.

30However, EPA agr ees with Petitioner that Conditions 43 an d 45 must include app ropriate monitoring. Further, EPA notes that Columbia’s COM is not installed voluntarily. New York’s regulations at 6 NYCRR § 227-1.4(a) (and the SIP at 6 NYCRR § 227.5(a)) 26 require facilities operating combustion installations with total maximum heat input capacity exceeding 250 mmBtu/hr to install, operate and properly maintain COMs. Columbia’s boilers constitute a combustion installation, as defined in 6 NYCRR § 200.1(m), with a total heat input exceeding 250 mmBtu/hr. Thus, the facility must continue to operate and maintain its existing COMs. DEC must reopen an d revise the perm it to require this mo nitoring method. Als o, the permit must specify that Columb ia report its monito ring results on a qu arterly basis ac cording to 6 NYCRR § 227-1.4(b), whic h Columbia already does. Because EPA finds that DEC faile d to properly include the periodic monitoring required by the SIP, EPA is granting the petition on this issue.

10. Conditions 36 and 49 (Process Permissible Emissions and Su lfur Limits)

Petitioner identifies various concerns relating to the sulfur-in-fuel limitations in the Columbia permit: (a) Petitioner identifies the 0.3% sulfur-in-fuel limit in Condition 36 and notes that “it appears that the sulfur content of fuel oil is being used in this permit as an aspect of the facility’s PTE limit,” and assert s that monitoring must be included to assu re compliance w ith this limit. Petition at p age 25; (b) Petitio ner asserts that t he prohibition on the use of fuel oil with a sulfur content of greater than 0.3 percent weight, listed at Condition 49, should be listed on the federally enforceable side of the permit, and should correctly cite the SIP-approved version of the sulf ur rule rather th an the current Sta te rule. Petitioner further asserts that this provision lacks sufficient monitoring, and recommends that the DEC include a requirement for Columbia to maintain records for each fuel delivery and submit reports semiannually. Petition at page 27.

(a) Condition 36, Item 36.1 of the final permit, citing 6 NYCRR subpart 201-7, arranges the facility’s PTE limits by process, distinguishing the emissions that result from oil burning from those resulti ng from gas burning

. Where SO2 PTE limits are identified under process 001, which is defined a s oil burning, the DE C includes hourly a nd annual SO2 limits together with the applicable fuel sulfur content limit, measured in percent weight. Because this sulfur in fuel requirement is included in Condition 36, Petitioner believes DEC may have intended it to be part of the method for l imiting Columbia’s PTE for SO 2 . If this is the case , then Petitioner a sserts monitoring is needed. EPA agrees with Petitioner that it is unclear whether the sulfur in fuel limit has a bearing on Columbia’s SO 2 PTE limit, because there is no restriction in the permit on the quantity of fuel used. Therefore, when DEC reopens the permit as a result of EPA’s objection in Section C, it must also include an explanation of why this limit was included here. If DEC is not using the fuel sulfur content limit as part of Columbia’s PTE cap, then DEC may

26 6 NYCRR § 227-1.4(a), although state-enforceable, has been disapproved by EPA, and thus is not a part of New York’s SIP. The govern ing feder ally enfor ceable reg ulation is fro m the 1 972 ve rsion of the SIP, at 6 NYC RR § 2 27.5(a), w hich is sim ilar to the cur rent state rule e xcept tha t it does not ex empt g as turbines from th is requirem ent.

31remove this limit from Condition 36 if it so chooses, provided that a clear explanation is given. EPA sees no need to object to the lack of monitoring in Condition 36. EPA sees no need for sulfur monitoring to be duplicated in Co ndition 36 if other p rovisions of the pe rmit adequately describe Columbia’s fuel sulfur moni toring obligations. This issue is addre ssed below in subsection 10(b).

(b) NYPIRG notes th at the current Sta te version of 6 NYC RR subpart 225-1 is on ly enforceable b y DEC, while the SIP v ersion is enforc eable only by EPA a nd the public. The r ule pertaining to “Fuel Composition and Use” at 6 NYCRR § 225.1(a)(3), although no longer a current NY State rule, is still in the SIP and is therefore federally enforceable. The SIP approved regulation is the applicable requirement that must be included in the title V permit. Therefore, EPA is granting the petition on this issue, and requiring DEC to reopen the permit to cite the correct applic able requireme nt, the SIP provision a t 6 NYCRR § 225.1(a)( 3). EPA is also requiring that DEC correct the error in Condition 49, where the process material is described as numbers 1 and 2 disti llate oil. Columbia f ires only residua l oil in its four prima ry boilers.

EPA notes that, for facilities in New York City, the curr ent State version o f 6 NYCRR subpart 225-1 is environmentally equivalent to the version in New York’s SIP. Because the substance of thes e two versions of p art 225 is identica l, DEC may wish to stre amline these requirements following the guidance in White Paper 2. Seenote 25, supra

. Accordingly, DEC may choose to subsume the State-only enforceable provision into the SIP provision, provided the permit and the statement of basis explain that compliance with the SIP-approved rule assures compliance with the State rule, while both rules are applicable.

EPA agrees with Petitioner that Condition 49 is not supported by adequate monitoring. In granting this issu e, EPA is requiring DEC to incorporate the monitoring req uirements from its own regulations at 6 NYCRR §§ 225-1.7 and 225-1.8(a) (and the SIP at 6 NYCRR §§ 225.6(b) and 225.7(a)). 27 These regulation s require those f acilities operat ing combustion insta llations with total maximum heat in put capacity exc eeding 250 mmBtu/hr, who do not operate SO 2 control devices, to reta in records on sulf ur content and sub mit periodic repor ts. In accordan ce with these regulations, DEC must revise the permit to require recordkeeping of fuel sulfur content per delivery of fuel, and reporting of these data semiannually, to assure compliance with the applicable requirement at 6 NYCRR § 225.1(a)(3). EPA also notes that although there are currently no req uirements in the pe rmit to record or r eport fuel oil sulf ur content, Columbia is doing this anyway, a s evidenced by the most recently submi tted semiannual re port.

11. Condition 41 (NSPS Subpart Dc)

27 6 NYC RR §§ 225-1.7 and 22 5-1.8(a) , although state-enfor ceable, ha ve not b een sub mitted to E PA in their curren t form, an d thus on ly the prev ious form is a part of N ew Yo rk’s SIP. T he gov erning fe derally enforce able regu lation is from the 198 1 version of the SIP , at 6 NY CRR § § 225.6 and 22 5.7(a), w hich is environmentally equivalent to the current st ate rule.

32Petitioner raises the concern tha t the permit does no t include the prope r applicable requirements from the Standards of Performance for Small Industrial-Commercial-Institutional Steam Generating Units at 40 CFR part 60, subpart Dc. Petition at page 25. 28 (a) Petitioner complains that she is unable to locate any condition citing the NSPS at 40 CFR 60.43c(c), and such a condition must be included in the permit. Further, Petitioner asserts that Condition 41, addressing opacity requirements, must include appropriate periodic monitoring. Petition at page 26; (b) Petitioner r emarks that the SO 2 limits of the NSPS must apply to Columbia.

(a) Although Petitioner alleges that DEC omitted the opacity requirement of the NSPS at 40 CFR 60.43c(c) from the permit, this provision is included in the final effective permit at Condition 41. Nonetheless, EPA agrees with Petitioner that DEC neglected to include any monitoring for this requirement. As discussed above in subsection 9(c), the SIP at part 227 requires Columbia to install and mainta in COM. EPA is grantin g the petition to req uire DEC to reopen and revise the permit to specify this monitoring method for the NSPS opacity requirement as well. Because the NSPS opacity requirement is equivalent to that of the SIP at part 227, when DEC revises the permit to address this objection, it may list the required monitoring in each of these conditions, o r it may provide a s treamlining analy sis in the Permit Revie w Report, in accordance with White Paper 2. Seenote 25, supra

. In such an analysis, DEC should state that although complianc e with the federa l NSPS assures compli ance with the SIP- approved rule, b oth rules are applicable.

(b) In its Novembe r 5, 1999 comment le tter, NYPIRG quest ioned whether the permit should include the s ulfur dioxide limita tions from the NSPS sub part Dc. In its re sponsiveness summary, DEC implied that because the SIP sulfur limitation at 6 NYCRR § 225.1(a)(3) (see discussion above in subsection 10(b)) is more stringent than the requirement at 40 CFR § 60.42c (d) which allows a maximum of 0.5 perc ent weight, the pe rmit need not includ e the NSPS provision. Becaus e DEC’s response is not completely co rrect, EPA is rec ognizing this as a va lid petition issue. Seenote 28, supra

. DEC may, by its choice, include each applicable sulfur standard in the permit. If, however, it chooses to include only the most stringent standard, a streamlining analysis is required, in accordance with White Paper 2. Seenote 25, supra

. When DEC reopens the permit to address EPA’s other objections, DEC must explain that although compliance with the SIP-approved sulfur standard assures compliance with the NSPS sulfur standard, both rules are applicable.

12. Condition 35 (PTE L imits)

Petitioner raises concerns about t he practical en forceability of C ondition 35 of the pe rmit. Petition at pages 23-25. Condition 35 lists hourly and annual emissions limits that originated from the State Fac ility Permit that was issued on May 17, 199 9, keeping Columbia University

28 In her November 5, 1999 comments at page 20, Pe titi oner identi fies se veral concer ns involvi ng the applicabili ty of NSPS subpart Dc. Although the peti tion dated September 28, 2000 is bri ef and vague on this iss ue, EPA recognizes the complaint fil ed as it appli es to opacity and sulfur dioxide.

33out of major source permit review for NOX and SO 2 . Petitioner allege s that the permit mus t include operatio nal restrictions ( i.e., fuel usage) to make these PTE limits practically enforceable. Petitioner furthe r asserts that the monitoring and rec ord keeping that Co lumbia must conduct is not sufficient to demonstrate compliance with the hourly emission rate limits for either NOX or SO 2 . EPA has found in some cases that the Clean Air Act and the implementing regulations allow for a flexible evaluation of appropriate methods for ensuring practical enforcea bility of PTE limits. See In re Orange Recycling and Ethanol Production Facility, Pencor Masada Oxynol, LLC , Petition No. II-2001-05, April 8, 2002 (“Masada”)at p. 4-10 (available on the internet at: http://www.epa.gov/region07/programs/artd/air/title5/petitiondb/petitions/masada-2_decision200 1.pdf) In brief, EPA concluded tha t some facilities ma y qualify for emiss ions-based PTE limit s if certain other permit provisions ensure that the PTE limits are enforceable as a practical matter.

Conditions 37 and 38 c ontain the monitorin g requirements th at are intended t o help Columbia University track compliance with the requirements of Condition 35. The adequacy of this monitoring, and EPA’s decision on g ranting or denying the petition on thes e counts, is discussed below in sections G.13 and G.14.

13. Condition 37 (NO X Emission Limits)

Petitioner raises two types of complaints regarding NO X emissions limits: (a) Petitioner alleges that the permit must include a fuel use restriction to make the NOX PTE limit practical ly enforceable; ( b) Petitioner belie ves that Condition 37 does not contain su fficient monitorin g to assure Columbia’s compliance with the hourly NO Xlimit. Petition at page 26.

Condition 37 requires Columbia to continuously monitor NO X emissions and calc ulate annual emissions monthly on a rolling total basis. The data collected by these monitors are tabulated daily a nd reported quar terly, using units of lb/mmBtu, lb/hr and ton /yr. EPA is granting Petitioner’s request on both counts, as described below.

(a) EPA agrees w ith Petitioner that o perational restr ictions are nece ssary in most case s to make PTE limits practically enforceable. Columbia’s permit includes a set of secondary emissions limits, which function essentially as if they were operational restrictions. Condition 36 specifies separate fuel-based emissions limits (137.5 tons/yr from oil, 43.5 tons/yr from gas), which indirectly a ffect the total a mount of fuel burne d and even hours o f operation to some
extent. If Columbia were to continuously operate at full steam load, and if emissions were adequately predicted by emissions factors, then it would be effectively limited to less than 6,000 hours per year b y Condition 36 (2,347 hours on oil, 2,900 ho urs on gas). Norma lly, Columbia operates at reduced load, and may occasionally achieve better emissions rates than would be predicted by standardized factors. Thus the fuel-based emissions limits in Condition 36 offer sufficient operational flexibility to Columbia while also protecting the integrity of the annual

34facility-wide NO X limit of 181 tons/yr. Given that recently reported actual emissions of NO X have been less than 50% of the PTE limit, and continuous monitors are employed, this level of protection is ade quate. Nonethele ss, EPA is requiring DEC to reopen and r evise the permit to require recordkeeping and reporting to support the fuel-specific emissions limits in Condition 36.

(b) The permit indeed neglects to address monitoring of the hourly NOX emissions. DEC must reopen and amend the permit to reflect Columbia’s current practice of calculating and reporting information on hourly NO Xemissions from both oil and gas. EPA notes here that the hourly limits on NO X do not serve to constrain Columbia’s annual emissions; rather they provide operational fle xibility. Thus, the pr otections descri bed above in (a) are vital.

14. Condition 38 (SO 2 Emission Limits)

Petitioner raises two types of compla ints regarding SO 2 emissions limits: (a) Petitioner alleges that the p ermit must include a fuel use restric tion to make the SO 2 PTE limit practical ly enforceable; ( b) Petitioner belie ves that Condition 38 does not contain su fficient monitorin g to assure Columbia’s compliance with th e hourly SO2 limit. Petition at page 26.

Condition 38 requir es Columbia to calc ulate annual SO 2 emissions monthly on a rolling total basis, using continuously-sampling fuel flow meters, EPA emission factors, and an automated data acquisition system. The data compiled by this monitoring system are tabulated daily and reporte d quarterly, using units of lb/hr and to n/yr. EPA is grantin g Petitioner’s req uest on the second count, as described below.

(a) EPA agrees w ith Petitioner that Co lumbia’s permit lac ks sufficient pro visions to ensure practic al enforceabil ity of the SO2 PTE limit. As describ ed above, Columbia’s permit does not restrict the volume of fuel oil burned annually, only the NO X emissions from fuel oil. If Columbia were to control its NO X emissions to less than 80% of the amount predicted by the standard emission s factor, then Colu mbia could burn en ough fuel oil to viola te its SO 2 PTE limit. EPA thus agrees wi th Petitioner that th e permit must conta in a limit on the quant ity of fuel oil burned. Accordingly, EPA is granting the petition on this point, and requiring DEC to reopen the permit to restrict oil consumption to less than 6.28 million gallons annually.

(b) The permit ind eed neglects to a ddress monitoring o f the hourly SO 2 emissions. DEC must reopen and amend the permit to reflect Columbia’s current practice of calculating and reporting informa tion on hourly SO 2 emissions resulting from the combustion of oil. EPA notes here that the hour ly limit on SO 2 from fuel oil does not serve to constrain Columbia’s annual emissions; rather it provides operational flexibility. Thus, the protections described above in (a) are vital.

III CONCLUSION

For the reasons set forth above and pursuant to section 505(b)(2) of the Clean Air Act, I

35grant the petition on issues G.7. and G.9. through G.14., addressing the operating scenario for capping, opacity monitoring, sulfur monitoring, the NSPS, and PTE limits for NO X and SO 2 , respectively. I object to the issuance of the Columbia Permit on those points, and deny the balance of NYPIRG’s petition.

12/16/02

_____________________________ Dated: Christine Todd Whitman, Administrator

36