Comments and Testimonies

May 24, 2005

Docket ID No. OAR-2004-0010
(Clean Air Council Comments to Title V Area Source Exemptions)

The following are comments to the U.S. Environmental Protection Agency's ("EPA") March 25, 2005 "Proposal To Exempt Area Sources Subject To NESHAP From Federal and State Operating Permit Programs," and are submitted on behalf of Clean Air Council. The Council is a non-profit, environmental organization headquartered in Philadelphia, Pennsylvania, and dedicated to everyone's right to breathe clean air. The comments have been prepared for the Council by the Mid-Atlantic Environmental Law Center, which also submits them on its own behalf.

I. Summary

The Agency's proposal permanently exempts from Title V permitting area sources in the following source categories: dry cleaners, halogenated solvent degreasers, chrome electroplaters, ethylene oxide sterilizers, and secondary aluminum smelters. EPA also addresses the category of secondary lead smelters but proposes to decline to exempt them at this time. The primary criteria in EPA's analyses is whether requiring these sources to apply for a Title V Permit will unnecessarily burden the source category and whether a Title V Permit is unnecessary to improve compliance rates with the underlying National Emission Standard for Hazardous Air Pollutant ("NESHAP").

The Council believes that the EPA's decision to exempt these categories is based on insufficient evidence and focuses heavily on presumed impacts on businesses with little emphasis provided on the impacts on the public. EPA should therefore withdraw its proposal and develop a new approach that would efficiently bring Title V permits into existence for the 40,000 plus subject area sources.

It must be noted at the outset that EPA's attempts to justify these exemptions ignore a very important role that Title V permits play, which is to provide the public with the means to efficiently understand the universe of air quality requirements that apply to a polluter in a single document and to have access to records that demonstrate the compliance with those requirements.

II. Dismantling of State Title V Permitting for the Subject Categories

Once again, EPA is making clear its intentions to prevent the states from protecting their residents by holding sources accountable to a higher standard than those imposed by the federal government. In the past, it has been a state's prerogative to set regulatory requirements more stringent than those required by the federal government if the state deemed it necessary to achieve air quality standards or to better protect the public. The notion of the federal rules as providing a "floor" is under assault by the Agency in recent years. In this proposed rule, states that have moved forward with Title V permits for the source categories encompassed by today's proposed rule are now being denied the ability to maintain those permits. Further, the issuance of new Title V permits in states interested in having a program for these source categories will be prohibited by the proposed rule. The Council specifically rejects the EPA's interpretation that such state-based Title V permitting is "inconsistent with the Act." To the contrary, the essential purpose of the Clean Air Act is "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." 42 U.S.C. §7401(b)(1). Indeed, both the courts and EPA itself have a long tradition of supporting state requirements that are more protective of public health than EPA's.

To ensure that the door is fully closed to state action in this manner, EPA is also proposing several deletions to the regulations at 40 CFR §70.3(a), §70(b)(3), §71.3(b)(3), and §70.3(b)(4). The Council opposes these changes.

III. Burden on Industry

The Agency attempts to buttress its argument that Title V permits for these area sources would be overly burdensome by claiming that the facilities in question would not be able to obtain compliance assistance from the permitting authorities. That is clearly an improper rationale for weakening a public health protection requirement. The same argument could also have been made to apply for all major sources at the time of the onset of the Title V program ten years ago. That initial onslaught of permitting reviews did not prevent the program from moving forward, although it may have slowed the pace of full implementation. While delays in compliance would not be desirable, they are certainly preferable to complete exemption. Furthermore, the addition of a new generation of Title V permits confers a workload that permitting authorities would be expected to anticipate and have resources available to accommodate. Fees assessed would help to offset the costs of committing staff resources.

An additional approach for ensuring that adequate resources are available for the task of processing a large number of new permits. Although the concept of general permitting is typically not favored by the Council, in the case of categories with thousands of sources of extremely similar operation, general permitting admittedly can make for sensible policy. EPA abruptly dispensed with the idea of general permitting as a tool to significantly diminish any burdens imposed by the Title V regime upon area sources or permitting authorities. EPA offered no data and no reasoned explanation why the streamlining of general permitting would fail to ameliorate those concerns. Indeed, when combined with another acknowledged fact regarding the five source categories of today's proposal, that they tend to be simpler operations with need to comply with only a single NESHAP, EPA's conclusion that Title V is inappropriate for these sources appears increasingly flawed.

EPA seeks to use the simplicity of the sources for the proposition that Title V's purpose to sort and neatly assemble all of a source's requirements is of no value with regard to these source categories. EPA cannot have it both ways. It cannot argue legitimately that relatively simple requirements apply to the sources and simultaneously maintain that the sources themselves would be hopelessly burdened in seeking to assemble the necessary information for the Title V application. This becomes even more plain when the likely middle ground of utilizing general permitting is contemplated. The potential lack of compliance assistance is simply not a valid reason to deprive the public of the benefits of requiring these sources to obtain a Title V permit.

The Agency's own estimate in 2000 of average annual costs for obtaining and complying with a Title V permit is $7,700. The Council disagrees with EPA's speculation that the cost for dry cleaners would be half of that amount and believes that EPA's compliance cost for small area sources is significantly inflated. The EPA's cost numbers pertain to major sources and are weighted by the costs incurred by some extraordinarily complex and large facilities. Such numbers are in no way reflective of the costs to be expected by an area source operation running one or a small number of units under a single NESHAP. If general permitting is authorized, the cost would diminish even further, to a figure the Council expects would be many times lower than the number above. There is value enough in providing the public with the useful tool of a Title V permit with compliance certification and monitoring reports to justify requiring business to make such an expenditure.

IV. Effect Upon Compliance

In its proposal, the Agency has broken down its analysis for each of the six categories. It is disturbing that EPA repeatedly draws the conclusion that compliance with the respective NESHAPs is high in the absence of Title V permitting based on the input of a small minority of states. EPA also repeatedly draws on the experience that the State of Georgia relates about its programs. There is no discussion provided for why Georgia's inclinations and findings should serve as a model on which to base the program for the rest of the nation, and there is no explanation suggesting that EPA has determined that the Georgia model is a particularly efficient and well implemented program. Nevertheless, even costs in the range of EPA's estimate would not justify depriving the public of the Title V protections.

With regard to the 30,000 area source perchloroethylene dry cleaners covered under the NESHAP, EPA seeks to make its case that Title V permitting would not aid compliance by generalizing from the reports of "several" states. According to EPA, the reports state that using state permits alongside the NESHAP did not result in increased compliance with the standard. "They reported that successful implementation of emission standards at area sources could only be achieved through one-on-one effort explaining the requirement…" 70 FR 15255. It is a given that compliance assistance may be necessary at the time new standards take effect, but that is not at issue here. What is relevant is how the existence of a federal permit containing sufficient monitoring to determine compliance and the obligation to sign a compliance certification would affect overall rates of compliance with established standards. This inquiry is not resolved through EPA's discussion, nor is it resolved by the fact that 13 out of 25 permitting authorities report "high compliance rates without Title V permits." 70 FR 15256. One may reasonably conclude that the other half believed rates of compliance without Title V were not suitably high. Further, EPA fails to define what is considered "high" compliance in this context. The Agency has not made the case that a Title V permit would not be a significant factor in achieving compliance at dry cleaners.

EPA claims that for Chrome Electroplating and Anodizing, Ethylene Oxide Sterilizers, and Secondary Aluminum Smelters, the NESHAPs contain substantially equivalent periodic monitoring to what Title V would require. However, there are appreciable differences. For EO Sterilizers, those facilities not employing continuous monitoring are not required by the NESHAP to submit excess emission reports, prompt deviation reports, or six month monitoring reports. For chrome plating operations, Title V requires deviation reports and monitoring reports every six months, whereas the corresponding NESHAP intervals are on an annual basis. For secondary aluminum smelters, without any specific data to support the claim, EPA declares that only a "few" of the more than 1,300 covered sources will be using non-continuous monitoring methods, while all the rest will submit excess emission reports semi-annually. For the non-continuously monitored sources, it is clear that monitoring report submittals will be considerably less frequent than Title V would require. The reduced monitoring and reporting in the absence of Title V makes it harder for concerned citizens to acquire adequate and timely information about pollution levels in their community.

Overall, for these source categories as well as for solvent cleaning and dry cleaners, the importance of the lack of a compliance certification cannot be understated. EPA has presented no evidence to suggest that certification will not be useful in bringing about better compliance, and specifically solicits comment on this issue. The Council firmly believes that the act of signing a certification, particularly with a smaller business, is not taken lightly, and therefore will produce positive results. These would include greater efforts at achieving compliance and the submittal of more compliance plans.

Furthermore, the Council maintains that the public benefit to having the Title V permit is extremely important. It is much more likely that a concerned citizen will learn of the compliance status of a facility and the existence of monitoring reports and deviations from emission standards through a review of the Title V permit than otherwise.

V. An Alternative

One possibility to explore, to the extent that EPA fears an onerous impact on "mom and pop" small business operations, is the concept of a "de minimis" exemption. Given that EPA does have some discretion to exempt area sources, there appears to be no bar to the Agency making some distinction among the area sources based on emissions totals. EPA could exempt those area sources that demonstrate that their actual emissions of Hazardous Air Pollutants do not exceed 3 tons per year, and require all others in the source categories to obtain a Title V permit. This approach could be modified for the dry cleaning source category, where the NESHAP already classifies small and large area sources by gallons of perchloroethylene consumed. The small area sources, which currently enjoy an exemption from control device requirements for existing sources, could be permanently exempted from Title V permitting. But states should be provided with the regulatory flexibility to regulate beyond EPA's deminimis exemption should it adopt one.

VI. Conclusion

The Council is concerned that the Agency's intention to exempt these categories under the rationale provided would do a disservice to the public and result in failure to achieve necessary and anticipated reductions of hazardous air pollutants, particularly in urban areas. It is the Council's belief that EPA's failure to support its contentions in this proposal with adequate statistical data rises to the level of arbitrary and capricious action.

At its core, the conflict here is drawn between industry's desire to be free from further regulatory commitments and accountability and the public's need to be informed and empowered to demand environmental compliance from small neighboring industries that can be located in close quarters with homes and schools. EPA's analysis has very clearly indicated where its priorities lie.

The Council and the Center appreciate the opportunity to comment on this important rulemaking and urge the Agency to reconsider its proposal.

Respectfully submitted,

Michael D. Fiorentino, Esq.
Mid-Atlantic Environmental Law Center
On behalf of Clean Air Council