EPA issues White Paper 3 on Flexible Title V Permitting

Guidance focuses on "advance approval" of operating changes; reaction mixed

From

The U.S. Environmental Protection Agency (EPA) has released a draft of its third Title V "white paper," which provides guidance on designing permits to allow sources the flexibility to make frequent operational changes without triggering permitting delays.

The draft White Paper 3, released Aug. 15 (65 FR 49803), encourages, but does not require, state and local permitting authorities to use flexible permits for sources, such as semiconductor and pharmaceutical manufacturers, that need to make rapid changes. According to EPA, the document is designed to address state and industry concerns "that existing approaches to Title V permitting will prevent those industries from making the quick operational changes necessary to meet fluctuations in market demand."

The EPA guidance describes several options for providing greater operational flexibility, but focuses on "advance approval," which the agency considers to be the most versatile and effective of these approaches. An advance approval provision in a permit allows the facility to make a defined category of changes in the future without seeking further review or approval.

Initial reaction to the draft was mixed. "We're real pleased with it," said Gary Jones, manager of environmental, health and safety affairs for the Graphic Arts Technical Foundation. "We think it provides some necessary flexibility," he said.

"The only criticism I have is, I wish they'd done it sooner" and made it a binding rule rather than merely a guidance document, Jones added. "We're running into incredible delays in the process of permitting."

However, Richard Cordes, a staff engineer with the Minnesota Pollution Control Authority, expressed the concern that "the kind of notification and the level of detail that's needed" actually would make it more difficult to provide operating flexibility.

Some environmental agency staff, on the other hand, see White Paper 3 as a serious loophole in the Title V permitting scheme, according to Jeff Ruch, executive director of Public Employees for Environmental Responsibility. "These concepts, while they sound good in theory, have not been put into practice in enforcing a permit," he said. "You don't know what's going to happen."

"You can write ‘smart permits' in such an all-inclusive way that you undermine" the Title V requirement for public notice of facility changes, Ruch said. Citizens who miss the initial opportunity to review an advance approval would then be left out of the process for the remainder of the five-year permit term, he said. "These people are not professional technology-watchers."

Details of Guidance
In White Paper 3, EPA maintains that permitting mechanisms such as advance approval can actually improve public understanding of a facility's activities by requiring the sources to describe the type and magnitude of the potential emission increases that may occur. A Title V permit containing an advance approval must include:

1. a description of the advance-approved changes and a limit on their magnitude;
   
2. the relevant "applicable requirements" that apply to the advance-approved changes;
   
3. permit terms linking the changes to their applicable requirements and ensuring compliance with them at all times; and
   
4. other terms to ensure that the contemplated changes do not trigger new requirements for which advance approval is not appropriate.

"The real utility of advance approvals is for those industries that characteristically make many changes each year where the source cannot determine the specific changes until shortly before it needs to make them, but the changes are all within a defined category of changes for which all requirements will be well known," according to the guidance document. "Advance approvals involving such defined categories typically include one or more emissions limits (known as emissions ‘caps') applying over the whole site."

The permittee must notify the state or local permitting authority before making an advance-approved change, but need not undergo the standard Title V permit modification process. However, the source must maintain a contemporaneous log of activities and may need to perform additional monitoring to verify that the overall emission cap is not being exceeded.

State minor new source review (NSR) programs are an important consideration in the design of most advance approvals, EPA noted. Unless the advance approval addresses these requirements as well as Title V requirements, the advance-approved changes still must undergo minor NSR and the advantages of advance approvals will be negated, the agency warned.

EPA has found, in the course of the Pollution Prevention in Permitting Pilot (P4) project, that many minor NSR programs can be interpreted to allow advance approvals for at least some types of changes, such as those made under a volatile organic compound emission cap.

EPA is accepting public comments on the draft White Paper 3 until Sept. 14 and plans to issue the final document by December.

For more information on this or other Thompson publications: Don Montuori, Thompson Publishing Group, 1725 K. Street NW, Washington, DC 20006. Tel: 202-872-4000. Fax: 202-296-1091.

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