September 21, 2000

Michael Trutna

Information Transfer and Program Integration Division

MD-12

US Environmental Protection Agency

Research Triangle Park, NC 

Dear Mr. Trutna,

On behalf of the State and Territorial Air Pollution Program
Administrators (STAPPA) and the Association of Local Air Pollution
Control Officials (ALAPCO), thank you for the opportunity to comment on
EPA’s August 14, 2000 draft White Paper 3, entitled Operational
Flexibility in Facilities Subject to Title V Permitting (65 FR 49803). 
Specifically, the White Paper proposes to allow state and local agencies
to issue “smart permits” that would build more flexibility for
industry into the Title V permitting program.

STAPPA and ALAPCO support EPA’s continued efforts to facilitate
flexibility in state and local Title V permit programs and commend the
agency for exploring ways to provide flexible permitting mechanisms to
improve both the environment and economic competitiveness.  However,
rather than issuing another guidance document that provides flexibility
on a limited basis, the associations urge EPA remove the numerous
barriers to flexibility that currently exist in the Title V permitting
program.  Over the past few years, we have repeatedly urged EPA to
remove and/or resolve numerous barriers to flexibility, including the
unresolved Title III/V interface issues, the question of federal
enforceability of terms and conditions in preconstruction permits, as
well as the uncertainty of the agency’s position on potential-to-emit
limits definition and the pending Part 70 revisions.   We believe that
it is only through a revision of the current rules that these issues
will be resolved and the barriers to flexibility truly removed from
state and local permitting programs.

However, if EPA plans to issue the White Paper, we believe that
significant modifications are necessary before it can be successfully
utilized by state and local permitting agencies.  The following comments
explain our specific concerns and offer our recommendations.

New Source Review (NSR) Reform

One of the key aspects of this White Paper is the ability of sources to
obtain advance approval of changes at a plant, thereby assisting state
and local air pollution control agencies who are under continuing
pressure to quickly review construction permits.  The White Paper
acknowledges that certain administrative requirements of NSR may delay
operational changes at a facility, and attempts to develop a procedure
that will replace the formal review process.  However, while state and
local agencies have been working with EPA to streamline the issuance of
modifications of existing Title V permits, and appreciate EPA’s
efforts to do so on a limited basis in this guidance, we do not believe
that EPA can accomplish these objectives for a select number of sources
through guidance.  Therefore, we strongly urge EPA to incorporate these
flexibility concepts in the upcoming revisions to the Title V
regulations, thereby assuring implementation.

Eligibility of Sources

We also have concerns regarding the numbers and types of sources that
may believe they are eligible for flexible permits. EPA's stated goal is
to have all initial Title V permits issued by December 31, 2000.  While
we support the concept of flexible permits, there must be a recognition
that the process for development of a flexible permit is time-consuming
and, in the cases where state and local permitting authorities will not
meet the December 31, 2000 goal, devoting time to issuing flexible
permits will only further delay the Title V issuance rate.  To that end,
the state and local permitting authorities must have the discretion to
determine the extent that flexible permits can be reviewed and issued
consistent with workload allocation.

Moreover, while we agree that the ultimate decision to issue a flexible
permit should rest solely within the discretion of state and local
permitting agencies, the draft White Paper contains little or no
guidance on “rejecting sources.”  Instead, the White Paper includes
a broad statement that flexible permits are appropriate when marketplace
demands require an ability to make quick changes to products or
services. We believe this statement could be misinterpreted by sources
to imply that the options outlined in the White Paper, most of which
state and local agencies already have discretion to use, are mandatory. 
As a result, many sources that cannot identify flexibility needs may
still want flexible permits.  EPA should provide examples of sources
that are not likely candidates for application of this policy.  In
addition, we believe that the White Paper should recommend that state
and local agencies develop a “criteria of eligibility” list for the
prioritization of reviewing flexible permit applications. Such criteria
could include, but would not be limited to, compliance history of the
facility, resources to maintain monitoring and reporting requirements
and a demonstrated need for flexibility.

Enforcement Issues

 We also note that implementation of the proposed White Paper may raise
potential enforcement issues.  For example, in Section III (Preserving
Flexibility of Applicable Requirements), under “replacement
conditions,” the guidance suggests that retaining a VOC “emission
limit,” but removing specific restrictions on materials usage and/or
production, may provide additional flexibility.  This “replacement
conditions” flexibility conflicts with current EPA guidance regarding
“federal enforceability” of conditions. In an effort to avoid these
potential enforcement issues, STAPPA and ALAPCO recommend that a clear
statement of approval by the Office of Enforcement and Compliance
Assistance be included in the final guidance.

Resources

Although EPA recognizes that the development of a flexible permit will
require additional resources, the language in the draft White Paper does
not appear to recognize the difficulty permitting authorities have in
obtaining additional resources through Title V fee increases.  In many
cases, Title V fees are codified by statute, therefore, it is
impractical and highly unlikely that fee increases could be affected
through legislative change just to accommodate flexible permits.  EPA
needs to recognize that resources to operate Title V permit programs
will continue to diminish in the future as sources reduce emissions,
thereby reducing the ability of state and local agencies to issue
flexible permits.

Clean Building/MOM/Cap and Track

We are concerned that the draft White Paper contains concepts that have
never been put into practice before.  For example, we are not aware of
any instance where EPA has piloted the clean building/MOM/cap and track
concepts outlined in the draft White Paper. While we are interested and
intrigued by these concepts, we fear they may have unforeseen
implementation issues.  Therefore, we are uncomfortable with
incorporating them into an official EPA policy at this time.  Instead,
we recommend that EPA test these concepts in a pilot program and would
welcome working with EPA to identify suitable candidates.

PALs

We also have concerns with the “Plant-wide Applicability Limits”
concept outlined in the White Paper. On October 8, 1998 STAPPA/ALAPCO
submitted the attached comments to EPA expressing concerns regarding the
application of PALs in EPA’s July 24, 1998 New Source Review reform
proposal (63 FR 39857).  The associations believe that any guidance from
EPA concerning PALs must address our concerns.

Interim Use of Emission Factors

We agree that continuous emission monitors should be utilized whenever
possible to verify the emissions from a source.  However, in light of
the recent periodic monitoring guidance decision, we do not believe that
this can be required through guidance.   It is our understanding that
such a requirement can only be recommended to be included as part of a
flexible permit.

Pollution Prevention

STAPPA and ALAPCO are strongly supportive of the encouragement provided
by White Paper 3 to states and local permitting agencies to incorporate
pollution prevention (P2) into Title V permits.  The lessons learned
through the Pollution Prevention in Permitting pilot projects, elements
of which are contained in this White Paper, pave the way for broader
implementation by state and local agencies.  These can be easily applied
to construction permits, as well.  

EPA Regional Support

Overall, the concepts embodied in the White Paper (e.g., flexible
permits, expedited and more efficient permit issuance) are commendable,
however, the success of such concepts are dependent on EPA regional
offices.  Therefore, EPA regional staff, including Title V, NSR and
enforcement staff, need to be educated on the uses of White Paper 3 so
that they may appropriately promote its benefits while still maintaining
compliance with all applicable requirements.  If there is lack of
support from regional EPA staff, the development of flexible permits may
be stifled.  Unless there is cooperation and support at the federal,
state and local levels, there will be little incentive for state and
local agencies to utilize the tools provided in the White Paper. 
Finally, we recommend that in the final guidance, EPA include a
prefatory statement to the effect that this guidance is not intended to
limit other possible approaches to permit flexibility and advance
approvals.  

Conclusion

STAPPA and ALAPCO are encouraged that EPA has taken this initial step to
increase flexibility in the Title V permit program.  However, we
continue to urge EPA to focus first on removing the numerous barriers to
flexibility that currently exist in the Title V permitting program.
Therefore we recommend that EPA move forward with a comprehensive
program to provide for increased permit flexibility through rules for
both construction and operating permit programs. 

 We remain committed to work with EPA to explore ways to provide
enforceable, well-written permits in a timely manner that improve both
the environment and economic competitiveness. Towards this end, we
encourage EPA to address and incorporate our concerns and
recommendations in its final version of White Paper 3. 

If you have any further questions or desire additional information,
please contact either of us or Geri O’Sullivan of STAPPA and ALAPCO.

Sincerely,

Robert Hodanbosi							Wendy Barrott

STAPPA Chair							ALAPCO Chair

Permitting Committee							Permitting Committee

Cc:	Bill Harnett

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