MEMORANDUM

DATE:	November 28, 2018

SUBJECT:	Updated Costs/Impacts of the Proposed 40 CFR Part 63 Subparts NNNN, OOOO and RRRR Monitoring Review Revisions

FROM:	Eastern Research Group, Inc.

TO:		Paula Hirtz, OAQPS/SPPD/MMG

As part of an ongoing effort to improve compliance with various federal air emission regulations, the EPA reviewed the testing and monitoring requirements of the National Emission Standards for Hazardous Air Pollutants for the Surface Coating of Metal Furniture (40 CFR part 63, Subpart RRRR), the Surface Coating of Large Appliances (Subpart NNNN), and the Printing, Coating and Dyeing of Fabrics and Other Textiles (Subpart OOOO) and is proposing the following changes for each subpart. The EPA is proposing to require facilities that comply with the standards by using emission capture systems and add-on controls to conduct periodic air emissions performance testing, with the first of the periodic performance tests to be conducted within 3 years of the effective date of the revised standards and thereafter no longer than 5 years following the previous performance test. The 5-year period would correspond to the renewal period for the facility's 40 CFR part 70 operating permits. Each subpart already requires an initial performance test during which control device efficiency is measured and operating limits for the emission capture system and add-on control device are established. Periodic performance tests are already required by some state and local permitting authorities for facilities subject to these regulations. The addition of periodic performance testing to these federal regulations will require all facilities to conduct periodic testing, reestablish operating limits, and ensure that control systems are properly maintained over time, thereby reducing the potential for acute emissions episodes or non-compliance.
This proposal would require periodic air emissions testing to measure organic HAP destruction efficiency or organic HAP removal efficiency at the inlet and outlet of the add-on control device, or control device outlet concentration of organic HAP, once every 5 years for existing and new surface coating affected sources using the emission rate with add-on controls compliance option. Emissions would be measured as total gaseous organic mass emissions as carbon using either Method 25 or 25A of appendix A to 40 CFR part 60.
Note that these subparts specify some emissions limits in terms of organic HAP concentrations or organic HAP destruction efficiencies measured using EPA test methods 25 or 25A. These test methods measure unspeciated total organic compounds. However, most surface coating operations emit volatile organic compounds that are not HAP as well as HAP. We are also aware of situations where the measured gas stream from a coating operation may contain measurable amounts of methane, which is also not a HAP, from natural gas combustion. Using Method 25 or 25A alone in that situation could result in a facility not demonstrating compliance due to the non-HAP organic compound or methane emissions, although we expect this to be unlikely based on available compliance data from facilities using add-on controls. (These compliance data show facilities using add-on controls with a sufficient margin between the emission limit and their actual emission rates that they should be able to rely on just VOC destruction to demonstrate compliance.) To avoid this potential problem, several NESHAP that cover coating operations contain a provision to use EPA Test Method 18 to measure organic HAP emissions (40 CFR Part 63 subparts EE (Magnetic Tape Manufacturing), GG (Aerospace), JJ (Wood Furniture Manufacturing),  and VVVV (Boat Manufacturing)), or to simultaneously measure methane emissions along with the total organic compound emissions, and allow the methane emissions to be subtracted from the total organic compound emissions measured using Methods 25 or 25A (40 CFR Part 63 subpart KKKK (Metal Can Coating)). We are proposing to add the option of conducting EPA Method 18 of appendix A to 40 CFR part 60 to Subparts NNNN, OOOO and RRRR to either specifically measure organic HAP emissions, or to subtract methane emissions from measured total gaseous organic mass emissions as carbon. We think the decision to use the method will be made on a site-specific basis, and based on our knowledge of the industries affected by the three subparts, that the decision to use Method 18 will rarely be necessary. Because it is being proposed as an optional method, we did not include the costs associated with Method 18 in the cost estimates. Facilities performing testing using EPA Methods 25 or 25A also must use EPA Methods 1, 2, 3, and 4 to measure gas flow rate, molecular weight, and moisture content. These methods are included in the cost estimates.
The estimated costs associated with the monitoring review revisions for subparts NNNN, OOOO and RRRR are incremental costs (i.e., the additional cost associated with complying with an additional requirement beyond that required under the current subpart MACT).
We identified the facilities that will likely need to perform testing by reviewing the most current operating permits for the known major source facilities in each source category and identifying those with add-on controls and using the emission rate with add-on controls compliance option in each subpart. We also used the permits to determine how many add-on controls each facility was using. Some facilities had multiple add-on controls, e.g., one for each coating line.
Emissions compliance testing costs were treated as capital costs because facilities routinely contract with a testing company to perform the testing. Consistent with the EPA Air Pollution Control Cost Manual, the capital costs were annualized at 5.25 percent over the 5-year testing period.  Appendix A presents estimated emissions testing costs as facility-specific and nationwide equivalent annualized costs for each of the NESHAP. The basis for the testing costs is presented in Appendix B. The one-time estimated cost per add-on control range from $18,500 to $18,750 for Method 25 and 25A and assumes that emissions are measured simultaneously at the inlet and outlet of the device to measure destruction efficiency. (We assumed that facilities would not use EPA Method 18 of appendix A to 40 CFR part 60 and not subtract methane emissions from measured total gaseous organic mass emissions as carbon. EPA Method 18 is an optional method that is being added to these three subparts in this action.) These costs were annualized with an interest rate of 5.25 percent resulting in an equivalent annualized cost of $4,361 per add-on control per facility. These costs also assume that emission capture systems meet the design criteria for a permanent total enclosure in EPA Method 204, so that capture efficiency does not need to be measured. (See subpart NNNN; § 63.4165(a); subpart OOOO, § 63.4361(a); and subpart RRRR, § 63.4964(a).)
There were no Surface Coating of Metal Furniture facilities (subpart RRRR) with add-on controls, according to our review of the operating permits for this source category. Therefore, we do not anticipate any facilities in this industry to have performance testing costs, so none are included in the total estimated annual costs. If a facility did have an add-on control, we estimate the annualized cost for initial and periodic testing would be an annual cost of $4,361 per add-on control per facility.
These testing cost estimates for subparts NNNN and OOOO account for facilities that are already required by their states to perform periodic emissions testing to measure control device efficiency as part of renewing their operating permits. If a facility had more than one control device (e.g., for two separate coating lines) we assumed that each device would be tested independently.
The original total estimated equivalent annualized cost of periodic testing for the Surface Coating of Large Appliances industry (subpart NNNN) was approximately $7,600 for one facility with surface coating lines and separate thermal oxidizers. Review of the 40 CFR part 70 operating permit for this one facility showed that it is required to perform testing as part of renewing their permit. Therefore, the proposed periodic testing would not add any new testing requirements for this facility and the cost estimated for this facility would not be likely to occur, so the cost is not included in the total estimated annual costs.
The total estimated equivalent annualized cost of periodic testing for the Printing, Coating and Dying of Fabrics and Other Textiles industry (subpart OOOO) is approximately $73,000. Eight facilities in this source category had two control devices per facility. Costs for facilities with more than one control device reflect the full cost for the first device ($18,750) and a 25 percent reduction for the second control device ($14,063) to account for the savings on the travel and preparation time. Several facilities are already required to perform periodic testing of the VOC destruction efficiency of their add-on controls as a condition of renewing their 40 CFR part 70 operating permits or by state regulations. For these facilities, the proposed periodic testing would not add any new testing requirements and the costs estimated for these facilities would not be likely to occur, so they are not included in the total estimated annual costs.

 Appendix A: Equivalent Annualized Costs (EAC) by Facility and Industry Sector
(No metal furniture surface coating facilities are known to use add-on controls for compliance with subpart RRRR)
                                     Rule
                               Facility (State)
                               Process/Equipment
                                    Control
                         Do we have operating permit?
                        Is Testing Required by Permit?
                            Estimated Testing Costs
                        EAC w/ 5.25% Interest (5-year)
                        Large Appliance Surface Coating
NNNN
Whirlpool Findlay Division (OH)
Dishrack Adhesion Promoter Coating - 2 lines
2 Thermal Oxidizers
                                      Yes
                                      Yes
                                       -
                                       -
           Coating Printing and Dyeing of Fabric and Other Textiles
OOOO
Industrial Laminates Norplex (IA)
Treater 207 and 208 Compounded Resin Coat of Web Material
Thermal Oxidizer
                                      Yes
                                      No
                                    $32,813
                                    $7,631

Treater 201 Compounded Resin Coat of Web Material
Thermal Oxidizer

OOOO
HBD Thermoid Inc. (KS)
Departments 10 and 20
Thermal Oxidizer
                                      No
                                       -
                                    $18,750
                                    $4,361
OOOO
Pioneer Plastics Corp. (ME)
Multiple lines (Coater, impregnator, coater, resin blender, reactors)
2 Thermal Oxidizers
                                      Yes
                                      Yes
                                       -
                                       -
OOOO
Duro Textiles LLC (MA)
Coating lines #1,2,3
Thermal Oxidizer
                                      Yes
                                      No
                                    $18,750
                                    $4,361
OOOO
Hood Coatings (MA)
Coating and Printing
Thermal Oxidizer
                                      Yes
                                      Yes
                                       -
                                       -
OOOO
Day International (MI)
Coating and Curing
Carbon Adsorber
                                      Yes
                                      Yes
                                       -
                                       -
OOOO
Worthen Coated Fabrics (MI)
Fabric Coating Line
Thermal Oxidizer
                                      Yes
                                      Yes
                                       -
                                       -
OOOO
Veyance Technologies (NE)
Spreader
Thermal Oxidizer
                                      Yes
                                      No
                                    $18,750
                                    $4,361
OOOO
Avery Dennison RIS (NY)
Reactor room
Thermal Oxidizer
                                      Yes
                                      Yes
                                       -
                                       -
OOOO
Endicott Interconnect Technologies (NY)
Theater Towers
2 Thermal Oxidizers
                                      Yes
                                      Yes
                                       -
                                       -
OOOO
American & Efird LLC Dyeing and Finishing (NC)
Thread bonding lines
Thermal Oxidizer
                                      Yes
                                      No
                                    $18,750
                                    $4,361
OOOO
Coats American (NC)
Thread bonding lines
2 Catalytic Oxidizers
                                      Yes
                                      No
                                    $32,813
                                    $7,631
OOOO
Coveris Advance Coatings (NC)
Multiple roll-type coaters
Thermal Oxidizer
                                      Yes
                                      Yes
                                       -
                                       -
OOOO
Flint Group (NC)
Unknown
Thermal Oxidizer
                                      No
                                       -
                                    $18,750
                                    $4,361
OOOO
Highland Industries (NC)
Finishing Range
Thermal Oxidizer
                                      Yes
                                      No
                                    $32,813
                                    $7,631
OOOO

Unknown
Carbon Adsorber

OOOO
Synthetic Finishing Longview (NC)
Stain Repellant Coater
Chilled water condenser and two dual bed regenerative carbon adsorbers in parallel
                                      Yes
                                      No
                                    $18,750
                                    $4,361
OOOO
Trelleborg Coated Systems (NC)
Mixers and spreaders
Carbon Adsorber
                                      Yes
                                      No
                                    $32,813
                                    $7,631

Fabric Coaters
Thermal Oxidizer

OOOO
Cooley Incorporated (RI)
drying ovens/rotary screen printer
Thermal Oxidizer
                                      Yes
                                      No
                                    $18,750
                                    $4,361
OOOO
Kenyon Industries (RI)
2 Solvent-based Fabric Coating Lines (2)
2 Thermal Oxidizers
                                      Yes
                                      No
                                    $32,813
                                    $7,631
OOOO
Graniteville Specialty Fabrics (SC)
Multiple coating lines
2 Thermal Oxidizers
                                      Yes
                                      Yes
                                       -
                                       -
OOOO
Kinyo Virginia, Inc. (VA)
Coating
Carbon Adsorber
                                      Yes
                                      No
                                    $18,750
                                    $4,361

Appendix B: Detailed Information for Testing Methodology Costs
          Testing to Accomplish Destruction Efficiency Determinations
Required: Control device inlet and outlet testing simultaneously, EPA Method 1, 2, 3, 4, and 25 (Total Gaseous Non-Methane Organics reported as Carbon (TGNMOC) manual sample collection and analysis) conducted simultaneously, three complete test sets at one hour each.
                                    Element
                                     Cost
                                  Assumptions
Labor  -  Preparation and Staging
   P4 = 8 hours
   P2 = 16 hours
   P1 = 4 hours
$2,168
Test plan/QAPP preparation, equipment preparation, calibrations (pitots, thermocouples, dry gas meters, etc.), packing
Labor  -  Travel to and Set-up
   P4 = 20 hours
   P2  -  20 hours
$3,860
Use of local testing company so travel is minimized. Travel by truck/company vehicle. Set-up of equipment in preparation for first test completed.
Labor  -  Testing
   P4 = 16 hours
   P2  -  16 hours
$3,088
All three test runs at inlet and outlet conducted in one day.
Labor  -  Travel from and Break-down
   P4 = 20 hours
   P2  -  20 hours
$3,860
Use of local testing company so travel is minimized. Travel by truck/company vehicle. Break-down of equipment after last test run completed.
Labor  -  Recovery
   P2  -  12 hours
$660
Equipment unloading, repair, and post-test calibration checks.
Labor  -  Reporting
   P4 = 6 hours
   P1 = 4 hours
$1,012
Test report preparation including all field data and destruction efficiency determinations.
M25 Equipment
   6 samples ($75/sample)
$450
Trap and tank including pre-cleaning, blanking, and evacuation.
M25 Sample Analysis
   6 samples ($250/sample)
$1500
TGNMOC from trap and tank
Miscellaneous Expendable Supplies
$500
Fuel, Ice, Dry Ice, Fittings, Hardware, etc.
Shipping: 6 samples ($30/ sample)
$180
Samples to M25 specialty lab for analysis
Lodging: 4 people, 2 nights each ($109/night)
$872
Lodging at site
Meals: 4 people, 3 days each ($51/day)
$612
Meals at site
                                                                          TOTAL
$18,762

   P4 - $138/hour, P2 - $55/hour, P1 - $46/hour
          Testing to Accomplish Destruction Efficiency Determinations
Required: Control device inlet and outlet testing simultaneously, EPA Method 1, 2, 3, 4, and 25A (TGNMOC direct measurement) conducted simultaneously, three complete test sets at one hour each.
                                    Element
                                     Cost
                                  Assumptions
Labor  -  Preparation and Staging
   P4 = 8 hours
   P2 = 18 hours
   P1 = 4 hours
$2,278
Test plan/QAPP preparation, equipment preparation, calibrations (pitot tubes, thermocouples, dry gas meters, field VOC analyzer, etc.), packing
Labor  -  Travel to and Set-up
   P4 = 22 hours
   P2  -  22 hours
$4,246
Use of local testing company so travel is minimized. Travel by truck/company vehicle. Set-up of equipment in preparation for first test completed.
Labor  -  Testing
   P4 = 16 hours
   P2  -  16 hours
$3,088
All three test runs at inlet and outlet conducted in one day.
Labor  -  Travel from and Break-down
   P4 = 20 hours
   P2  -  20 hours
$3,860
Use of local testing company so travel is minimized. Travel by truck/company vehicle. Break-down of equipment after last test run completed.
Labor  -  Recovery
   P2  -  16 hours
$880
Equipment unloading, repair, and post-test calibration checks.
Labor  -  Reporting
   P4 = 6 hours
   P1 = 4 hours
$1,012
Test report preparation including all field data and destruction efficiency determinations.
M25A Equipment
   2 field VOC analyzers ($300/unit)
$600
Rental
Miscellaneous Expendable Supplies
$900
Fuel, Ice, Support gases, Calibration gas, Fittings, Hardware, etc.
Shipping
   2 parcels ($75/parcel)
$150
Field VOC rental units returned
Lodging
   4 people, 2 nights each ($109/night)
$872
Lodging at site
Meals
   4 people, 3 days each ($51/day)
$612
Meals at site
                                                                          TOTAL
$18,498

   P4 - $138/hour, P2 - $55/hour, P1 - $46/hour

          Testing to Accomplish Destruction Efficiency Determinations
Optional: Control device inlet and outlet testing simultaneously, EPA Method 18 (Methane manual sample collection and analysis) conducted simultaneously, three complete test sets at one hour each.
                                    Element
                                     Cost
                                  Assumptions
Labor  -  Preparation and Staging
   P4 = 2 hours
   P2 = 8 hours
   P1 = 1 hours
$762
Test plan/QAPP preparation (addition), equipment preparation, calibrations, packing
Labor  -  Travel to and Set-up
   P2  -  20 hours
$1,100
Use of local testing company so travel is minimized. Travel by truck/company vehicle. Set-up of equipment in preparation for first test completed.
Labor  -  Testing
   P2  -  16 hours
$880
All three test runs at inlet and outlet conducted in one day.
Labor  -  Travel from and Break-down
   P2  -  20 hours
$1,100
Use of local testing company so travel is minimized. Travel by truck/company vehicle. Break-down of equipment after last test run completed.
Labor  -  Recovery
   P2  -  8 hours
$440
Equipment unloading, repair, and post-test calibration checks.
Labor  -  Reporting
   P4 = 1 hours
   P1 = 1 hours
$184
Methane data added to test report prepared for the required testing.
M18 Equipment
   6 samples ($50/sample)
$300
Train and Tedlar bag or canister including pre-cleaning, blanking, and evacuation (as needed).
M18 Sample Analysis
   6 samples ($50/sample)
$300
Methane from Tedlar bag or canister
Miscellaneous Expendable Supplies
$400
Fuel, Fittings, Hardware, etc.
Shipping
   6 samples ($30/ sample)
$180
Samples to M18 specialty lab for analysis
Lodging
   2 people, 2 nights each ($109/night)
$436

Lodging at site
Meals
   2 people, 3 days each ($51/day)
$306

Meals at site
                                                                          TOTAL
$6,388

   P4 - $138/hour, P2 - $55/hour, P1 - $46/hour
          Testing to Accomplish Destruction Efficiency Determinations
Optional: Control device inlet and outlet testing simultaneously, EPA Method 18 (Methane direct measurement) conducted simultaneously, three complete test sets at one hour each.
                                    Element
                                     Cost
                                  Assumptions
Labor  -  Preparation and Staging
   P4 = 2 hours
   P2 = 8 hours
   P1 = 1 hours
$762
Test plan/QAPP preparation (addition), equipment preparation, calibrations, packing
Labor  -  Travel to and Set-up
   P2  -  20 hours
$1,100
Use of local testing company so travel is minimized. Travel by truck/company vehicle. Set-up of equipment in preparation for first test completed.
Labor  -  Testing
   P2  -  16 hours
$880
All three test runs at inlet and outlet conducted in one day.
Labor  -  Travel from and Break-down
   P2  -  20 hours
$1,100
Use of local testing company so travel is minimized. Travel by truck/company vehicle. Break-down of equipment after last test run completed.
Labor  -  Recovery
   P2  -  8 hours
$440
Equipment unloading, repair, and post-test calibration checks.
Labor  -  Reporting
   P4 = 1 hours
   P1 = 1 hours
$184
Methane data added to test report prepared for the required testing.
M18 Equipment
   2 field Methane analyzers ($300/unit)
$600
Rental
Miscellaneous Expendable Supplies
$500
Fuel, Support gases, Calibration standard, Fittings, Hardware, etc.
Shipping
   2 parcels ($75/parcel)
$150
Field Methane rental units returned
Lodging
   2 people, 2 nights each ($109/night)
$436

Lodging at site
Meals
   2 people, 3 days each ($51/day)
$306

Meals at site
                                                                          TOTAL
$6,458

   P4 - $138/hour, P2 - $55/hour, P1 - $46/hour


5.3.7 Compliance Certification Requirements Comment: Commenter IV D 271 requested a clarification of what a compliance certification is; that is, whether it is a one page signed statement, or a detailed document containing information about the source while in operation. One commenter ( IV D 97) noted that the compliance certification would be an administrative burden for a typical PSD source.

Several comments ( IV D 127, IV D 161, IV D 203, IV D 311, IV D 325) were directed at what requirements are being certified in the permit. Three of these commenters ( IV D 161, IV D 311, IV D 325) stated that the certification and reporting requirements should be changed to refer to all applicable requirements contained within the permit, rather than all requirements applicable to the source. A fourth commenter ( IV D 203) suggested that the certification be for certain identifiable and quantifiable requirements, rather than " all applicable requirements." One industry commenter ( IV D 174) requested a certification of partial compliance be made available. The final commenter ( IV D 127) questioned whether the requirements for compliance certification should even be included in the permit application.

Commenter IV D 314 requested clarification of the meaning of " enhanced monitoring" in Section 70.5( b)( 8)( iv).

Commenter IV D 303 suggested that the certifications were too detailed and should be streamlined. Two commenters ( IV D 172 and IV D 331) requested model or standard compliance certification forms, and two commenters ( IV D 205 and IV D 206) requested standard language for certification documents.

Response: Commenters seemed to be confused as to the distinction between compliance certifications required as part of an application and those required as a term or condition of a permit. The compliance certification requirements contained in Section 70.5( c)( 9) require certifications of compliance or noncompliance with all applicable requirements within every permit application, including any enhanced monitoring and compliance certification requirements promulgated pursuant to Sections 114 and 504( b) of the Act. This certification should include: a statement that the source has met all applicable requirements or will be in compliance with these requirements at the projected time of permit issuance; a description of the method( s) used to determine compliance; and a schedule for submission of compliance certifications during the term of the permit, to be submitted at least annually. Section 503( b)( 2) of the Act concerning permit applications, requires a facility to periodically certify that the source is in compliance with any applicable requirements and to promptly report any deviations from these requirements to the State.

The compliance certification reports required as a term or condition of a Part 70 permit are described in Section 70.6( c)( 5) and require permittees to identify each term and condition of the permit that is the basis for certification; the compliance status of each requirement; whether compliance was intermittent or continuous; the method( s) used to determine compliance, consistent with the monitoring requirements of Section 70.6( a); and such other facts as the permitting authority may require to determine the compliance status of the source. The contents of this compliance certification are drawn from Sections 114( a)( 3) and 503( b)( 2) of the Act.

In summary, compliance certifications in permit applications are for applicable requirements of the Act, while compliance certifications required by permits are for permit terms and conditions only. The final rule differs from the proposal in that annual certification is now required with respect to terms and conditions of the permit; the proposal required certification only with the applicable requirements. This change is necessary to conform to the express requirement of Section 503( b)( 2).

The term " enhanced monitoring" refers to enhanced monitoring and compliance certification regulations, which are to be promulgated by the administrator within two years of enactment. The definition of " applicable requirement" in Section 70.2 includes requirements established pursuant to Section 504( b) or Section 114( a)( 3) of the Act. Section 504( b) allows the Administrator to prescribe procedures and methods for determining, monitoring, and analyzing pollutants regulated under the Act and states that each permit should set forth monitoring, compliance certification, and reporting requirements to ensure compliance with permit terms and conditions. Section 114( a)( 3) sets forth specific requirements for enhanced monitoring and submission of compliance certifications for all sources.

The detail required in compliance certifications contained in applications or for compliance certification reports required as a permit term will vary depending on the complexity of the emissions and the requirements that apply to the facility. Furthermore, for applications, the scope of the certification will vary depending on whether the application is for a new operation, a permit renewal, or a modification.

Several commenters requested either standard certification forms or language. The Administrator has described the information that must be included on application forms but not the exact format of the forms. Permitting authorities are required to have standard forms for applications that are sufficient to collect information consistent with the minimum data elements required by Section 70.5( c) or consistent with other additional requirements pursuant to Section 114. States are not required by Part 70 to have standard forms for compliance certifications, but they may provide them. Concerning standard language used on certification and certification forms, States may include such language on any standardized forms that they might provide, whether for the certifications required in a permit application or as a permit term, consistent with the guidance provided in the applicable regulations.

There is no reference in Title V to " identifiable and quantifiable requirements" and no such reference is contained in Part 70. Comment: One industry commenter ( IV D 319) did not want a compliance certification document, because it may be used as a self incriminating admission in later judicial or administrative proceedings. Other commenters ( IV D 203 and IV D 325) simply stated they did not believe the compliance certification should be used as a means of enforcement. Similarly, industry commenter IV D 102 did not think there should be a certification of noncompliance, as that may make the certifier criminally liable. One State agency and two industry commenters ( IV D 125, IV D 240, IV D 364) opposed submitting certifications of noncompliance to EPA, and suggested that the operation should only have to submit such information to the State; the State could submit to EPA. Another commenter ( IV D 198) did not want to be required to list the reasons for noncompliance, how noncompliance can be corrected, or how it could be prevented in the future as a part of the certification of noncompliance.

Response: The proposal was silent on the issue of compliance certification as evidence of a violation, but commenters were concerned that compliance certifications by themselves would be used as evidence of a violation. The legislative history suggests and the Administrator intends that compliance certifications could be used as evidence of a violation. It is likely, however, that the Administrator would want to further investigate a source showing noncompliance to substantiate the evidence for purposes of developing an enforcement action.

Several commenters were concerned about the implications of certifying noncompliance, and whether this could be potentially construed as criminal conduct by the plant or signing official. Signing a compliance certification that indicated knowledge of noncompliance does not in itself constitute criminal conduct. In order for an act to be criminal, it must be a knowing and willful act at the time that the violation occurs. Discovering a violation after the fact, through selfauditing or through any of the required monitoring provisions is not in itself criminal conduct. Having the knowledge that a deviation or violation occurred, and choosing not to report such information in the compliance certification would constitute a criminal act.

The requirement contained in the final regulations at Section 70.6( c)( 5)( iv) that all compliance certifications be submitted to the Administrator as well as to the permitting authority remains as proposed. This wording allows the States or the permittee to submit this information to the Administrator. The States will be performing this task in most cases, with the exception that the States may require a source to submit confidential business information directly to EPA, due to State confidentiality laws that bar them from disclosing information that a source holds to be confidential. The Administrator would then follow the procedures for dealing with claims of business confidentiality as set forth in Section 114( c).

The requirement in Section 70.6( c)( 4)( ii) concerning explanations of why any dates in the schedule of compliance were not or will not be met and the preventative methods adopted by the permittee as part of the compliance certification are necessary parts of a progress report. Progress reports are required to be submitted by Section 503( b) and Section 504( a) of the Act, which require " such other conditions as are necessary to assure compliance with applicable requirements of this Act...".

Comment: Commenter IV D 240 interpreted the requirement for compliance certification as a requirement for stack testing on each source, and proposed that minor sources ( defined as emitting less than 1 ton per year) be exempt from the requirement. Similarly, two commenters IV D 126 and IV D 258) indicated that work practices to be addressed in the compliance certification should not include stack testing for compliance, adding that the 40 CFR 60 Appendix B requirements are too burdensome to be required on a frequent basis.

Response: Stack testing may be required by the Administrator or the State to ensure compliance with standards or limitations, but Title V does not impose any new requirements specifically requiring stack testing for sources. Section 504( b) states that monitoring any analysis requirements for pollutants regulated by the Act may be established by rule. Section 504( c) also requires permits to set forth monitoring and compliance certification requirements to ensure compliance with permit terms and conditions. If stack testing is the best way to meet these goals, then it may be required. See Section 5.3.2 of this document or Section IV. E. 4. of the preamble to the final rule for discussion on insignificant emissions or activities that may be exempt from being fully described in applications and included in permits.

5.3.8 Certification by Responsible Official Comment: There were several comments on the definition of who is, or should be, the " responsible official" for signing compliance certification documents. Several industry commenters ( IV D 100, IV D 102, IV D 160, IVD 161, IV D 184, IV D 188, IV D 203, IV D 274, IV D 306) indicated that the proposed definition was too restrictive, and should allow for an official at a more local level, such as a plant or regional manager, to be authorized to sign compliance certifications. Similarly, one industry commenter ( IV D 369) noted an apparent conflict between the definition of " responsible official" and " designated representative." One industry commenter ( IV D 331) stated that the definition of responsible official should be the same in every State, and another commenter ( IV D 153) requested that the certification be signed by both a responsible corporate official and a professional engineer. One commenter ( IV D 318) requested that the certification statement be identical to one used in the National Pollution Discharge Elimination System ( NPDES) program.

Response: The proposed and final rules in Section 70.5( c) require all Part 70 sources to submit with each application, report, or compliance certification, a certification by a responsible official of truth, accuracy, and completeness. The final rule provides that this certification shall state that, based on information and belief formed after reasonable inquiry, the statements and information in the document are true, accurate, and complete.

Title IV contains independent requirements for compliance certification and Section 403( 26) of the Act defines the term " designated official" as a responsible official designated to represent the owner or operator in matters pertaining to allowances and the submission of and compliance with permits, permit applications, and compliance plans for the unit. The final regulations have been clarified in Section 70.2 to allow the designated official for affected sources to be the responsible official for all Part 70 purposes.

The proposed definition of " responsible official" was modified in response to comment. This modification will allow a plant manager, for instance, to be the " responsible official." There is National Pollution Discharge Elimination System ( NPDES) precedent for using the term " responsible official" to refer to a plant manager. The change to the regulation allows a " duly authorized representative" who is responsible for the overall operation of one or more manufacturing, production, or operating facilities to be the " responsible official" in certain circumstances. The circumstance that gives sources the greatest certainty is the case where the permitting authority approves in advance the delegation of authority to this representative. States could establish their own criteria for this delegation of authority in their individual rulemakings, but this will not be required by the Administrator.

Comment: Three environmental commenters ( IV D 76, IV D 252, IV D 432) wanted the certification to be for " actual" compliance, and not for compliance " to the best of the signer's information and belief." Comments from the Attorneys General from nine States ( IV D 201) stated that the qualifying language of " reasonable inquiry" was not called for by Title V, and should not be included in the certification document. Industry commenter IV D 251 requested a definition of " reasonable inquiry" and more information on what is required for compliance certifications. Finally, one commenter ( IV D 105) stated that the proposed certification would be too broad, because it asks officials to certify not only facts ( data truth, accuracy, and completeness) but also to make a legal determination ( i. e., that a source is in compliance).

Response: The certification by a responsible official as discussed in Section 70.5( c)( 10) of the proposal and Section 70.5( d) of the final regulation is required for each application, report, or compliance certification and is not a certification of compliance or noncompliance, but a statement that the responsible official believes that the information submitted is true, accurate, and complete. Section 70.5( c)( 9)( i) of the final regulation, on the other hand, requires the responsible official to certify the compliance status of all applicable requirements within a compliance certification as to truth, accuracy, and completeness, consistent with Section 70.5( d).

The term " to the best of the signer's knowledge" has been struck from the definition. The statement in Section 70.5( d) does not require that this certification statement be based on absolute knowledge but rather allows the signer to question other responsible persons within this organization and based on what they relate to him to certify that he believes this information is true. A responsible official would only be held accountable for criminal prosecution for making this certification if he had knowledge, at the time he signed, that what he was certifying was not true, accurate, or reasonably complete.

The phrase " reasonable inquiry" simply states the standard a court would necessarily apply when examining the facts of such a situation. Section 70.5( c)( 9)( i) requires the permittee to indicate, with regard to each applicable requirement, the legal conclusion as to whether the permittee is in compliance with those requirements. The statement of a legal conclusion is required by Section 503( b)( 2) of the Act.

5.3.9 Use of Standard Application Forms Comment: Several industry commenters ( IV D 126, IV D 140, IV D 311, IV D 319, IV F 03c, IV F 03d, IV F 03i) urged that current State and local forms be used. Commenter IV D 311 went on to request that language be added at Section 70.4( b)( 4)( i) to state that State and local agencies may revise the forms for program approval. One State commenter ( IV D 85) also opposed the use of standard Federal forms, arguing that they are too restrictive and specific. Commenter IV D 100 instead suggested the use of an outline containing the basic information required and the format for submittal. State commenter IV D 91 requested that EPA list key elements, or their equivalent, instead of a standard form. Another State agency ( IV D 125) supported EPA specification of minimum criteria for application forms.

However, several other industry commenters ( IV D 93, IV D 102, IV D 106, IV D 134, IV D 144, IV D 149, IV D 184, IV D 250, IV D 251, IV D 258, IV D 406) requested that EPA develop a standard application form to specify the information required. Commenters IV D 106 and IV D 149 suggested that the application form be modular. Commenter IV D 184, also suggested that only those requirements that are in a standard application form should apply.

Response: The proposal and the final rule state that the State permitting authority could use its discretion in developing application forms that best meet program needs and provide administrative efficiency, but the form( s) must be adequate to evaluate the subject source and to determine what applicable requirements apply and if they would be met.

In the final rule, the Administrator has retained his proposal requirement that States develop standard application forms that contain minimum data elements. The minimum data elements required in applications are specified in Section 70.5( c) of the final rule.

The Administrator interprets Section 502( b)( 1) of the Act as requiring States, not the Administrator, to develop a standard form, and he believes that the flexibility provided by this approach is important so as to build on existing State practices. The information needed to completely describe a source and the Act requirements that apply to it can vary greatly depending on the type of source or pollutant emitted and State and local air quality requirements. Most States already have application forms, and some of them are very comprehensive. If these forms are modified to the extent necessary to collect the required information on the minimum data elements, then States and sources alike can continue to use familiar forms and better build on current applications and permits.

5.4 COMPLETENESS DETERMINATION Comment: Several commenters representing State and local agencies ( IV D 84, IV D 85, IV D 113, IV D 117, IV D 121, IV D 125, IV D 148, IV D 153, IV D 192, IV D 249, IV D 416, IV D 434, IV F 010) supported lengthening the time for default completeness determination from 30 to 60 days ( same as in NPDES). Other commenters ( IV D 151, IV D 190, IV D 322, IV D 368) agreed that 30 days was too short, but either did not suggest another time period ( IV D 322, IV D 368) or suggested a minimum time period of 45 days ( IV D 151, IV D 190). Commenters IV D 228 and IV D 432 argued that deeming an application complete after 30 days significantly weakens the Act by allowing sources to operate with incomplete applications until the State denies the application; these commenters argued this could stimulate the submission of " sham" applications from sources who hope that the State bureaucratic delay will enable them to escape requirements of the Act. One State agency commenter ( IV D 245) indicated that, because all applications must be submitted within 1 year of the effective date of the State program, they will all be received at approximately the same time and all have to be reviewed for completeness within a 30 day time period; the State agency suggested flexibility needs to be provided to the State to avoid this burdensome workload.

However, many industry commenters ( IV D 2, IV D 52, IV D 87, IV D 93, IV D 106, IV D 122, IV D 126, IVD 127, IV D 134, IV D 144, IV D 152, IV D 164, IV D 184, IV D 199, IV D 203, IV D 208, IV D 210, IV D 224, IV D 313, IV D 317, IV D 319, IV D 331, IV D 370, IV D 373, IV D 395) supported the 30 day deadline for completeness determination. Commenter IV D 224 proposed that failure by the State to determine within 30 days if an application is incomplete and within 18 months to take final action should be treated as final permit action ( issuance).

Response: Due to these comments and after further study, the Administrator has decided to change provisions for the determination of application completeness by default to 60 days [ Section 70.5( a)( 2) of the final rule]. The Administrator believes that a " reasonable" time for this review as required by Section 502( b)( 6) of the Act is 60 days. This follows the precedents set in the NPDES program and in numerous States for processing permits for existing sources and should afford permitting authorities sufficient time for completeness determination. Applications for major sources often involve hundreds of individual units and the States may not be able to practically perform this task in 30 days. Allowing a 60 day completeness review time should ensure that the States, especially at program commencement, do not issue blanket notices of incompleteness to permittees, due to an inability to physically perform this duty. This is important because a State's completeness determination starts the clock as of receipt of the application on any required deadlines for application processing. On the other hand, increasing this review time will prevent the sheer weight of the applications at the beginning of the program from allowing sources by default to operate and be shielded from enforcement action with incomplete applications that the State agency has not reviewed. Comment: Many commenters addressed the issue of what constitutes a completed permit application. One commenter ( IV D 303) suggested States pass completeness criteria through a rulemaking process, not a policymaking process. One State agency ( IV D 125) urged definition of completeness procedure and procedures to start and stop the final action clock. Commenter IV D 361 stated that information for completeness should be limited to the information that is directly related to controlling air pollution. Commenter IV D 347 stated that completeness should be determined by specific Federal or State requirements listed in the application. Commenter IV D 373 stated that the permit should be deemed complete if substantially all information needed to begin the review is submitted. Several commenters ( IV D 10, IV D 100, IV D 122, IV D 202, IV D 203, IV D 361) expressed the need for the development of specific completeness criteria to provide some measure of certainty in completeness determinations. In addition, commenters IV D 122, IVD 134, IV D 138, IV D 208, and IV D 209 requested that a permitting agency be required to state in writing why applications are judged incomplete. Two commenters ( IV D 210 and IV D 102) further argued that the program should provide the right to an administrative appeal from a determination of incompleteness, and one ( IV D 203) noted that a State should not be able to extend the completeness determination by a general objection to completeness. Commenter IV D 376 suggested that State programs should include model examples of complete applications.

Response: Substantive responses to many of these issues are addressed in response to comment on the definition of " complete application" contained in Section 2.7 of this document. A written notification of completeness or incompleteness is not directly required by regulation, but Section 70.7( a)( 4) requires prompt notice of whether the application is complete and then requires that unless the State requests additional information or notifies the permittee of incompleteness within 60 days of receipt, the application shall be deemed complete.

Comment: There were several comments on the ability of permitting authorities to request additional information. Industry commenters ( IV D 100 and IV D 251) requested clarification of what constitutes a " reasonable and timely" response to a request for additional information. Two commenters ( IV D 347 and IV D 370) stated that EPA must allow reasonable time for the submission of additional information. Three commenters ( IV D 188, IV D 313, IV D 318) requested that EPA specify what a reasonable response time period is, rather than allowing permitting authorities to set their own deadlines. State commenter IV D 398 argued that the maximum response time allowed for additional requests should be 30 days, while commenters IV D 100 and IV D 303 stated that the 30 days should be the minimum allowed response time.

Industry commenter IV D 375, stated the number of additional requests for information should be " reasonable." Commenter IV D 124 requested setting a limit of two additional requests for information.

Response: The proposal stated that permitting authorities should have reasonable criteria for determining when additional information requested of a source ( after a determination of completeness) must be submitted in order to retain the protection afforded by the timely submittal of a complete application.

In response to these comments, the Administrator believes that time frames for requests and responses for additional information are best decided by the permitting authority. States may already have time frames established by statute or regulation or may establish them and the Administrator will determine at the time of program approval if they are reasonable.

Furthermore, the need for additional information from the source after the filing of a complete application will be highly dependent on the facts of the particular situation, e. g., the applicability of new requirements or the diligence of the applicant in responding to previous requests. It would therefore be inappropriate to set limits in these regulations on the State's discretion to request additional information.

5.4.1. Application Shield Comment: Several industry commenters ( IV D 164, IV D 189, IV D 306) indicated general support of the permit application shield. Commenter IV D 306 stated that the shield should be tied to a standard of reasonableness. Commenter IV D 202 suggested that a source should be allowed to remain in operation from the time that the permit authority determines their application to be complete until the permit is issued or denied.

One State agency ( IV D 123) commented that the permit application shield should not apply to sources that do not file timely applications. Another State commenter ( IV D 99) requested that the application shield not apply until the permit application is determined to be complete.

Three industry commenters ( IV D 106, IV D 311, IVD 314) supported allowing a source to continue to operate without penalty when information is submitted less than three months late. Commenters IV D 229 and IV D 322 opposed this three month grace period. Commenter IV D 229 stated that these sources are likely to be in violation of rules, and that they should be required to meet regulatory deadlines or be subject to penalties. This commenter further argued that the application shield should not extend to sources who have submitted an application in " good faith" and that the Act grants no exception to the requirement for a timely and complete permit application. Industry commenters IV D 106 and IV D 203 disagreed, and stated that an application submitted in " good faith" should be shielded. In addition, commenter IV D 156 argued that the shield should be in place from the time of " good faith" submission, not from the time the " good faith" application is determined to be complete.

Response: The proposed rule contained two provisions relating to the application shield that received comment [ Sections 70.7( b)( 2) and ( 3)]. One provision in the proposal provided a grace period of three months or less for applications or additional information requested by the State to be submitted after the required submittal date. Another proposed provision allowed the shield for timely applications that the permitting authority determined to be incomplete in consideration of " good faith" effort on the part of the permittee to cure the defect.

The Administrator, upon consideration of comments and after further study, has decided to delete these two provisions related to the shield from enforcement action [ Sections 70.7( b)( 2) and ( 3)] from the final rule. The three month or less grace period for submitting a timely application effectively extended the " application shield" to sources that did not submit a timely application, which would have been inconsistent with Section 503( c) of the Act. Section 503( c) does not allow for any additional time beyond the deadlines specifically provided. Furthermore, the Administrator, upon reconsideration of the proposal, believes that this regulation would have allowed a source to operate without a permit ( given the application shield would not have applied), which is directly prohibited by Section 502( a) of the Act.

Similarly, the proposed provision to allow incomplete applications to qualify as being submitted on time if certain " good faith" efforts were made to correct the defects has also been deleted from the final rule. That is, the proposal would have allowed an application believed by the permittee to be complete, but later determined by the permitting authority to be incomplete to be awarded the shield provided that the applicant acted in " good faith" to cure the defect. This regulation would have effectively shielded all sources from enforcement action for not submitting a completed application since " good faith" is an undefined term for purposes of the Act and, therefore, is subject to varying interpretation and would not be enforceable.

Comment: One industry commenter ( IV D 184) requested that the application shield be mandatory, and apply to the initial application, whereas two State commenters ( IV D 190 and IV D 249) believed that States should have the right to limit the application shield. Commenter IV D 249 requested that States have the option to assess administrative penalties for incomplete applications.

Response: Section 70.7( b) as proposed does require the application shield if a timely and complete application has been submitted and the source does not fail to submit additional information as requested by the State. Title V does not provide specific authority to assess penalties for incomplete applications. However, if a source continues to operate after failing to submit a complete application within the period required under Section 502( a), an enforcement action may be commenced for the failure to obtain a permit.

Comment: One industry commenter ( IV D 115) stated that the shield should be extended to include compliance plans, and be used if there is any disagreement between reviewing or permitting agency. Commenter IV D 318 stated that the application shield should apply to new constructions and modifications, and commenters IV D 203 and IV D 349 strongly endorsed the application shield for projects undergoing NSR review preconstruction permitting. Commenter IV D 159 supported the use of an application shield for construction permits, and requested clarification that new or modified sources which have submitted an application for an operating permit will not be required to wait for a final permit before commencing operations. They also support the position that the application shield applies equally to new and existing sources.

Response: The application shield applies to compliance plans the same way that it applies to other information required to be in a Part 70 application. The application shield shields a source from enforcement for failure to have a Part 70 permit. It does not shield a source from a requirement to have a compliance plan that may stem from an applicable requirement other than the Part 70 program, such as a consent decree that requires the source to have such a plan. The application shield would also apply to sources with preconstruction review requirements in that these sources would also be shielded from enforcement for not having a Part 70 permit by submittal of a timely and complete Part 70 application.

5.5 DUTY TO SUPPLEMENT OR CORRECT INFORMATION Comment: Commenter IV D 156 stated that the rule should include guidelines on what constitutes a timely update to a permit application. Commenter IV D 52 stated that voluntary supplements to permit applications should not delay permit issuance.

Response: The proposal stated that permitting authorities should have reasonable criteria for determining when additional information requested of a source after a determination of completeness must be submitted in order to retain the protection afforded by the timely submittal of a complete application.

In response to comments and for additional reasons, the Administrator believes that additional information should be provided to correct information previously submitted or to address requirements that become applicable during the period of time from the completeness determination but prior to release of the draft permit. Section 70.5( b) has been changed to require the submittal of this information. This new information would not affect the determination of completeness. This information submittal requirement is a logical outgrowth of the important principle of Title V that these permits should articulate a clear road map of the source's obligations and further provide certainty to the source as to its obligations. These applicable requirements would apply to the source regardless of the status of the permit application and regardless of whether a permit has been issued or not. However, for practical reasons, this requirement only extends until the time that the draft permit is issued. After the draft permit is issued, new applicable requirements would have to be inserted by the State, but the protection of the completeness determination would be preserved.

Voluntary supplements to permit applications may delay the issuance of a permit to the extent that additional time is needed to process the information. Submittal of voluntary supplementary information would not affect any determination of completeness that has already occurred, although such submittal could delay any completeness determination not already made. After the completeness determination, whether additional information is required to be submitted or submitted voluntarily, this submittal does not restart any mandatory time period for permit issuance.

5.6 OTHER COMMENTS 5.6.1. Computerized Data Transmission Comment: Two industry commenters ( IV D 160 and [ IV D 377) and two State agency commenters ( IV D 249 and IVD 367) requested that EPA encourage the use of electronic reporting and the development of " expert" systems to assist in acid rain permits. State commenter IV D 125 agreed, provided that there would be severe penalties for false data. One commenter ( IV D 77) expressed general support for the development of an electronic permit application. Commenter IV D 331 supported the use of electronic data management, but they suggested using a universal program, instead of the Aerometric Information Retrieval System ( AIRS).

State agency commenter IV D 151 has direct experience with AIRS and recommended that it not be used directly for the operating permits program. The commenter believed that the current AIRS system is cumbersome and time consuming. State commenter IV D 211 also recommended not using AIRS, believing it would increase staffing problems. However, one industry commenter ( IV D 165) supported the use of AIRS to expedite the permitting procedure.

Response: The proposed rule stated that the Administrator expected to request information from States in computer readable formats. In the final rule, Section 70.4( j)( 1) requires that any information obtained or used in the administration of a State program shall be available to EPA upon request without restriction and in a form specified by the Administrator, including computer readable files to the extent practicable. Section 70.8( a)( 1) requires that a copy of each permit application, proposed permit, and final permit shall be provided to the Administrator and that to the extent practicable this information shall be provided in computer readable format compatible with EPA's national database management system. The Administrator believes that the transmission of information in computer readable formats will help the agency to perform timely and effective oversight of permit programs, provide for future administrative cost savings, and will assist States in building their emission inventories and in conducting the actual permit processing.

The Aerometric Information Retrieval System ( AIRS) is a national data system developed by the Administrator and consisting of several subsystems. The AIRS Facility Subsystem ( AFS) was chosen to be enhanced and expanded to provide data management capability and full support for the Part 70 program on a national basis. The Administrator believes, due to the relatively short timeframes for implementation of the Part 70 program, that is was better to build upon an existing information management system than to start from the beginning with an entirely new system and that AIRS/ AFS is appropriate for such purposes.

5.6.2. Miscellaneous Comment: Commenter IV D 97 suggested EPA develop a summary application form for application renewal, instead of requiring sources to complete an entirely new application. Commenter IV D 376 requested an expedited application process for short term research projects such as those that the National Aeronautics and Space Administration ( NASA) operates.

Response: In the Part 70 program, States are generally given the flexibility to produce whatever forms they think best meet the needs of their programs. The Administrator has specifically provided that applications for renewals need not include all information originally in the Part 70 application, but only the information necessary to evaluate the source in reference to the new requirements that apply due to the revision. States with NASA facilities may decide to provide such facilities with priority consideration in terms of application review and issuance of permits, but they may not require less than the minimum data elements to be included in the application as required in Section 70.5( c).

Comment: Commenter IV D 184 suggested EPA require State and local agencies to accept applications by certified mail to ensure the date of submission is documented.

Response: States may require the applications or correspondence be sent or received by certified mail or any other method they feel appropriate. The Administrator will not require such procedures to be included in the Part 70 permit program submittal for approval by the Administrator. States are given reasonable discretion within their programs and it is not necessary for the Administrator to, as a minimum program requirement, to require this kind of detail in program submittals.