Living with your Title V permit

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Just when you thought it was safe to relax about air issues at your plant, the U.S. Environmental Protection Agency (EPA) has issued new requirements for operating permits under Title V of the Clean Air Act that dramatically affect compliance strategies. With the release late last year of the periodic monitoring guidelines, coupled with the credible evidence rule, a paradigm shift has occurred in how to comply with Title V permit requirements. In the past EPA had the burden of proof - using in-between stack tests - to show you were out of compliance. But now the burden has shifted, and it is you who must show compliance. To know what is expected, you must understand periodic monitoring and credible evidence.

The credible evidence rule (Federal Register, Feb. 24, 1997; Vol. 62, No. 36; pp. 8313-8328) is simple in concept. It allows industry, regulatory agencies or the public to use any credible information or other information such as data other than EPA reference method (RM) data to demonstrate compliance or non-compliance with emissions standards and limitations. The forms of other information that may be used include continuous emissions monitoring data, continuous opacity monitoring data, emission factors, expert opinions and parametric monitoring data from plant operations.

Although its concept is simple, living with the credible evidence rule may prove to be otherwise. It has its roots in the old enhanced monitoring rule. As you may remember, enhanced monitoring met almost universal disapproval; EPA withdrew it in 1995. It did not die, however, but rather decomposed into three separate rules: credible evidence, periodic monitoring and compliance assurance monitoring (CAM).

The CAM rule (Federal Register, Oct. 22, 1997; Vol. 62, No. 204; pp. 54899-54947) lets a regulated industry select the means to demonstrate that its operations are within permit conditions. Specifically, the CAM rule is intended to assure regulatory agencies that properly designed control measures are installed; that these measures can achieve applicable requirements; and that once installed they are operated and maintained so the system remains in compliance.

By taking this divide and conquer approach, EPA got essentially everything they wanted out of enhanced monitoring.

The real impact of credible evidence becomes clear when viewed together with EPA's recent periodic monitoring guidance. Periodic monitoring is required for all regulated emission points at a Title V facility. With the advent of these guidelines, facilities subject to Title V permit requirements may need to revise their approach to negotiating monitoring requirements. The guidance emphasizes that RM tests and emission factors may not constitute sufficient periodic monitoring. Since issuing the guidance, EPA has instructed regional air departments to increase their review of Title V permits and formally object to permits that do not meet the criteria outlined in the guidance.

What are the liabilities or opportunities I face with these new developments?
Environmental groups and EPA argued that they have always had the right to look at non-RM data, but the credible evidence rule expanded and codified what once was a legal gray area. The range of data potentially usable under credible evidence is vast, from process data, to engineering estimates to expert testimony.

The credible evidence rule adds language modifying existing regulations such as the new source performance standards to allow alternative data. Here is the language used to modify Part 60:

For the purpose of submitting compliance certifications or establishing whether or not a person has violated or is in violation of any standard of this part, nothing in this part shall preclude the use, including the exclusive use, of any credible evidence or information, relevant to whether a source would have been in compliance with applicable requirements if the appropriate performance or compliance test or procedure had been performed.
(40 Code of Federal Regulations (CFR) 60.11(g))

Facility operators have always operated under the belief that if they passed their required stack test, they were safe. Under credible evidence and periodic monitoring, things have changed. EPA is adopting the Internal Revenue Service approach to compliance - they simply ask you to certify you are in compliance and provide information twice a year that you feel supports that claim. If they decide to audit you, they are free to look at any other information they deem relevant. This could be process data, control device operation data, etc.

But what if your permit specifies the compliance monitoring to be used? If you follow your permit conditions to the letter, can you rely on that as definitive proof of compliance? Here are two excepts from recent rules published in the Federal Register that show EPA thinking on the subject:

Even if a Title V permit specifies that certain monitoring, CAM or other monitoring, be performed and that this monitoring is the sole or exclusive means of establishing compliance or non-compliance, EPA views such provisions as null and void.
(62 Fed. Reg. 54907 (Compliance Assurance Monitoring rule))

If a source becomes aware ... that an emissions unit ... is out of compliance with an applicable requirement even though the unit's permit-identified data indicates compliance, the source must consider this information, identify and address it in the compliance certification, and certify accordingly.
(62 Fed. Reg. 8320 (Credible Evidence rule))
(Emphasis added.)

In the past, annual or biannual stack tests sufficed to demonstrate compliance. Now that environmental managers are required to show continuous compliance, these infrequent stack tests are no longer statistically valid as a basis for proof of compliance.

The up side
There is an up side to credible evidence. A plant can use credible evidence to demonstrate compliance. For example, if a required monitoring system malfunctions, process data may be used to show that the plant was still in compliance during a monitoring system's downtime. Plants should review all opportunities to use credible evidence to their advantage.

Will this change the way we have operated in the past?
Let's assume you have negotiated a "once per permit term" test to demonstrate compliance on a particular unit. It is common practice to run "pre-tests" before an official compliance test. If a unit fails this pre-test, it is tuned-up or adjusted and the test is run again. Several iterations may be performed until the test is passed. Only then is the compliance test performed. What happens to these pre-tests under credible evidence?

The rules of the game have changed. Under credible evidence, any and all data suggesting your facility is out of compliance must be reported in your six-month documentation.

Isn't it true that a well-written Title V permit will shield my plant from EPA enforcement actions?
All good Title V permits have a provision called the permit shield that is supposed to protect a source from EPA enforcement if followed. Doesn't this provide some certainty?

Here's how EPA views the permit shield:

Although permits can include a "permit shield" protecting a source from allegations that it has failed to satisfy CAA monitoring requirements, such shield does not relieve the source of its obligation to comply with the underlying emission limits or other applicable requirements being monitored. In other words, the source would not be shielded from allegations of noncompliance with the underlying substantive requirements (e.g., emission limits) being monitored even if the source's required monitoring failed to detect the violation.
(62 Fed. Reg. 8320)
(Emphasis added.)

According to EPA, credible evidence can destroy the permit shield.

What practical steps would you advise me to take to address these issues?
Too often, Title V compliance is viewed only as a regulatory issue. There is a significant engineering aspect to the periodic monitoring guidelines that cannot be ignored. Operations and environmental personnel should work together to develop ways to ensure the plant meets its environmental obligations while maintaining maximum operational flexibility. In order to accomplish this, a team consisting of both operations and environmental staff should develop a monitoring plan that accomplishes the following:

1. Review the facility's Title V permit for specific requirements;

2. Review plant processes and flow scheme;

3. Review existing and proposed monitoring;

4. Identify monitoring gaps;

5. Analyze permit conditions for impact on operational flexibility;

6. Develop a top-down monitoring strategy that promotes:

  • Defensible compliance;
  • Minimum monitoring for small sources;
  • Data for process optimization;
  • Compatibility with existing plant data collection systems (distributive control sytems/historian); and
  • Maximum plant control of liability and compliance issues.

7. Provide specific recommendations for identified inadequate monitoring or compliance.

My Title V permit isn't due for review for over a year. Can I wait until technical review to begin this work?
By having a defined implementation plan in place prior to EPA's review, you will be in a better position to respond to questions and shape the development of the permit in a favorable way. A proactive engineering-based offense will better serve your corporation than a reactive legal-based crisis defense. If you allow EPA to find monitoring gaps in your permit, it is reasonable to assume they will take the easiest and most expensive route to filling those gaps.

A final word
It is important to note that even if the credible evidence rule goes away tomorrow, the need to certify whether compliance is continuous or intermittent resides in the Clean Air Act itself. Short of the passage of an amendment to the Clean Air Act by Congress and approval by the President, that obligation is here to stay.


E-sources

Periodic monitoring guidance
www.epa.gov/ttn/oarpg/t5/memoranda/pmguide.pdf

Periodic monitoring technical reference document
http://epa.gov/ttn/emc/cam.html

Credible evidence rule
www.epa.gov/docs/fedrgstr/EPA-AIR/1997/February/Day-24/a4196.htm

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This article originally appeared in the 09/01/1999 issue of Environmental Protection.

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