November 17, 2020

VIA ELECTRONIC MAIL

Corey Masuca, PE, PhD, JD

Principal Air Pollution Control Engineer
Air and Radiation Protection Program\Jefferson County Department of
Health
1400 Sixth Avenue South
Birmingham, Alabama 35233
Corey.M.Masuca@jcdh.org

Re: Comments on Draft Permit No. 4-07-0030-04

Dear Dr. Masuca:

Gasp respectfully submits the following comment on Draft Permit No. 4-

07-0030-04 (“Draft Permit”). We appreciate the opportunity to make these
public comments. Gasp hopes that you will take into consideration our
comments and recommendations.

Purpose

Gasp is a nonprofit organization with a mission to advance healthy air

and environmental justice throughout Greater-Birmingham. One way in
which Gasp seeks to improve air quality and address historic and ongoing
air pollution issues is through advocating for a stronger Title V permit for
AMERICAN Cast Iron Pipe Company (hereinafter “ACIPCO”). We look
forward to the Jefferson County Department of Health (hereinafter “JCDH”)
considering our comments and making changes to the Draft permit that
better protect the health of residents and air quality in Jefferson County.

I. The Permit Must Incorporate Enforcement Orders.

A primary purpose of Title V was to increase public involvement in air quality

regulation. The Title V program is meant to “make it easier for the public to learn what
requirements are being imposed on sources to facilitate public participation in determining what
future requirements to impose.”1 Applicable requirements of 40 C.F.R. §70.2 include more than
just those requirements spelled out in the regulations; applicable requirements also include
consent orders resulting from enforcement actions2.

A Draft permit must assure compliance with consent decrees, court judgments,
administrative orders or other enforcement orders against ACIPCO. Accordingly, JCDH must
incorporate any consent decrees, court judgments, administrative orders, or other enforcement
orders into the Final Permit, which are not currently incorporated into the Draft permit.

III. The Compliance Certifications submitted by ACIPCO lack specificity,

accountability and call into question the facility’s compliance status.
40 C.F.R. §70.6(c) describes the required elements of annual compliance certifications.
42 U.S.C. §7414(a)(3)(B) requires that the compliance certification serve as a statement of the
currently-employed methods for determining compliance upon which the initial compliance
certification is based. “The status of compliance with the terms and conditions of the permit for
the period covered by the certification, including whether compliance during the period was
continuous or intermittent. The certification shall be based on the method or means designated in
paragraph (c)(5)(iii)(B) of this section. The certification shall identify each deviation and take it
into account in the compliance certification. The certification shall also identify as possible
exceptions to compliance any periods during which compliance is required and in which an
excursion or exceedance as defined under part 64 of this chapter occurred; and [...] [s]uch other
facts as the permitting authority may require to determine the compliance status of the source.”3

First, as evidenced by 40 C.F.R. §70.6(c)(5)(iii)(D), overall compliance of the source

must be certified. “Congress expressly and unambiguously required that the certification include
"whether compliance is continuous or intermittent." ”4 This requirement is in addition to the
requirements in §70.6(c)(5)(iii), which go unit-by-unit5, as ACIPCO’s Compliance Certifications

1
56 Fed. Reg. 21712, 21713 (May 10, 1991).
2
In Re Request for a Determination that the New York State Department of Environmental Conservation
is Inadequately Administering New York’s Title V Program, at 13-14 (April 13, 1999) available at
https://www.epa.gov/sites/production/files/2015-08/documents/ny1999.pdf
3
40 C.F.R. §70.6(c)(5)(C),(D).
4
Natural Res. Defense Council, Inc. v. E.P.A, 194 F.3d 130, 138 (D.C. Cir. 1999.
5
In April 2006, the Title V Task Force finalized a document titled, "Final Report to the Clean Air Act
Advisory Committee: Title V Implementation Experience." This document was the result of the Task
Force's efforts to review the implementation and performance of the operating permit program under title
V of the 1990 Clean Air Act Amendments. Included in the report are a number of recommendations,
including some specific recommendations regarding compliance certifications that are consistent with
existing regulations and information provided in this guidance document. One such recommendation
underscores this idea that facility-wide compliance status is separate from the unit-by-unit analysis
provided by ACIPCO: “Most of the Task Force endorsed an approach akin to the "short form"
certification, believing that a line-by-line listing of permit requirements is not required and imposes
burdens without additional compliance benefit. Under this approach, the compliance certification form
would include a statement that the source was in continuous compliance with permit terms and conditions
with the exception of noted deviations and periods of intermittent compliance.” Memorandum from
Stephen D. Page on Implementation Guidance on Annual Compliance Certification Reporting and

2
do. In their Compliance Certifications, ACIPCO does not certify overall compliance, either
continuous or intermittent, with all terms and conditions of the permit. Put more simply, while
ACIPCO certifies continuous or intermittent compliance in a unit-by-unit table, there is no
statement that their compliance has been continuous, or intermittent. As such, the facility-wide
compliance status of ACIPCO is unclear, calling into question the compliance status of the
source.

In response to raising this issue with other sources in the past, JCDH has responded “it
seems to the Department that the overall compliance is the sum of the parts. If a facility certifies
that they are not in compliance with any one of their applicable requirements, then the overall
facility is out of compliance for that annual certification period. If a facility indicates intermittent
compliance with one condition and continuous compliance with all others, the overall conclusion
is that the facility is in compliance, although compliance is intermittent.”6 Gasp maintains that
this reasoning and response directly counter the guidance provided by the Title V Task Force in
2006: “the compliance certification form would include a statement that the source was in
continuous compliance with permit terms and conditions with the exception of noted deviations
and periods of intermittent compliance.”7

Second, Congress clearly intended for compliance certifications to include a description

of the methods used for determining compliance. Congress did not differentiate between the
compliance certification made at the initial application stage and the annual compliance
certifications.8 Additionally, “[a]s a general matter, specificity ensures that the responsible
official has in fact reviewed each term and condition, as well as considered all appropriate
information as part of the certification.”9 Not only are the requirements for compliance
certifications subsequent to the initial certification the same, but the compliance certifications
must also be specific. Compliance certifications lay the groundwork for the entire permitting
program.10

Third, a “statement of methods used for determining compliance” required as part of the
mandated compliance certification refers exclusively to methods used to certify current

Statement of Basis Requirements for Title V Operating Permits to Regional Air Division Directors,
Regions 1-10 (August 30, 2014) available at https://www.epa.gov/sites/production/files/2015-
08/documents/20140430.pdf
6
JCDH Response to Comments on Draft Permit No. 4-07-0455-05 at 7 (2020)(on file with author)
7
See supra Note 6.
8
See In re Request for a Determination that New York State Department of Environmental Conservation
is Inadequately Administering New York’s Title V Program, New York Public Interest Research Group
Petition to Review New York Title V Program (April 13, 1999) at 10-11 available at
https://www.epa.gov/sites/production/files/2015-08/documents/ny1999.pdf.
9
See Memorandum from Stephen D. Page on Implementation Guidance on Annual Compliance
Certification Reporting and Statement of Basis Requirements for Title V Operating Permits to Regional
Air Division Directors, Regions 1-10 (August 30, 2014) available at
https://www.epa.gov/sites/production/files/2015-08/documents/20140430.pdf
10
See In re Request for a Determination that New York State Department of Environmental Conservation
is Inadequately Administering New York’s Title V Program, New York Public Interest Research Group
Petition to Review New York Title V Program (April 13, 1999) at 5 available at
https://www.epa.gov/sites/production/files/2015-08/documents/ny1999.pdf.

3
compliance.11 The Title V permit application must include background information necessary to
determine what requirements apply to the facility and information that demonstrates the facility’s
current compliance status. Both types of information are critical in determining how the facility
demonstrates compliance. Information about current compliance status, presented in a very
specific way, determines whether an applicant must submit a remedial compliance plan.12

Furthermore, for the purpose of determining whether the applicant’s facility is in

compliance with all requirements, the applicant must describe the monitoring and recordkeeping
methods relied upon in certifying current compliance with all applicable requirements. ACIPCO
does not certify continuous compliance with all permit conditions13, nor is any similar
certification of facility-wide compliance asserted. Thus the annual compliance certifications
submitted by the source do not meet the federal requirements laid out in 40 C.F.R. §70.6(c)(5).

“The most relevant consideration in certifications is not the form, but the content and
clarity of the terms and conditions with which the compliance status is being certified.”14
Furthermore, JCDH had authority15 to request information to clarify deficiencies identified
throughout this Comment and it failed to do. These issues, in addition to the lack of a facility-
wide compliance certification, compounded by the deviation reports (with similar, if not the
same, deviations being reported in subsequent semi annual reports), call into question ACIPCO’s
compliance status. As such, at the very least, JCDH must clarify the compliance status of
ACIPCO in relation to its reported deviations and instances of repeated intermittent compliance
especially for Condition 2 for EU037.

11
Id. at 11.
12
See Id. at 11.
13
It is worth nothing that at least in reviewing Annual Compliance Certifications for 2018, 2019
and 2020 there are recurring instances of intermittent compliance. Namely for EU037 for
Condition 2 addressing opacity. In 2020 only intermittent compliance was certified for General
Condition 43 addressing fugitive dust requirements. 2020 Annual Compliance Certification,
American Cast Iron Pipe Co. (August 12, 2020)(on file with author); 2019 Annual Compliance
Certification, American Cast Iron Pipe Co. (August 15 2019)(on file with author); 2018 Annual
Compliance Certification, American Cast Iron Pipe Co. (August 20, 2018)(on file with author).
14
Memorandum from Stephen D. Page on Implementation Guidance on Annual Compliance Certification
Reporting and Statement of Basis Requirements for Title V Operating Permits to Regional Air Division
Directors, Regions 1-10 (August 30, 2014) available at https://www.epa.gov/sites/production/files/2015-
08/documents/20140430.pdf
15
Under 40 C.F.R. § 70.7(a)(I), a permit may be issued only if, among other things, the permitting
authority “has received a complete application.” 40 C.F.R. § 70.5(2) stipulates what constitutes a
complete application and also allows for JCDH to deem the application complete within 60 days of
receipt of the application. Ala. Admin. Code. R. 335-3-16-.04(5). “A source must submit additional
information to the Department to supplement or correct an application promptly after becoming aware of
the need for additional or corrected information. Also, a source must supply to the Department additional
information concerning any new requirements which have become applicable after a complete application
has been filed but before a draft permit is released.” Ala. Admin. Code r. 335-3-16-.04(7).

4
 II. Certain General Conditions are missing from or misstated in the Draft Permit,
which violates federal requirements and thus must be revised.

The CAA directs EPA to promulgate regulations establishing the minimum elements of a
permit program to be administered by any air pollution control agency. These regulations are
published in 40 CFR Part 70. 40 CFR §70.5(c) explains that though state and local permitting
authorities may exercise discretion in developing permit applications forms, the forms and
attachment must include certain information. 40 C.F.R. §70.6 enumerates standard permit
requirements.

A thorough review of the Draft Permit highlighted several missing or misstated general
permit conditions. Each Title V permit must include and assure compliance with all federally
enforceable16 applicable requirements. 42 U.S.C. §7661c(a); 40 C.F.R. §70.6(a) and (c). Where
a general permit condition, required by 40 C.F.R. §70.6, is missing the draft permit violates
federal requirements and must be revised. Additionally, where a general permit condition varies
significantly from Part 70, that permit condition also violates federal requirements. Below is a
comprehensive list and discussion of all missing or misstated general permit conditions that
violate federal requirements and are due to be revised.

A. There is no condition requiring ACIPCO to comply with the terms and

conditions of the permit.
40 C.F.R. §70.6(a)(6)(i) requires that all permits contain certain elements, including a
provision that states that “[t]he permittee must comply with all conditions of the part 70 permit.
Any permit noncompliance constitutes a violation of the Act and is grounds for enforcement
action; for permit termination, revocation and reissuance, or modification; or for denial of a
permit renewal application.” 40 C.F.R. §70.6(c)(3) covers a schedule of compliance and requires
that a permit shall contain a statement that the source will continue to comply and that the source
will comply with requirements that become effective during the term of the permit and that such
source will meet such requirements on a timely basis.17

There is no general condition that requires ACIPCO to comply with all conditions of the
permit. General Condition 518 addresses compliance with existing and future regulations.
However, neither in this condition nor any other condition in the permit is there an explicit duty

16
The term “federally enforceable” is defined in three places in the Federal Register, where all three
definitions are identical.
Federally enforceable means all limitations and conditions which are enforceable by the Administrator,
including those requirements developed pursuant to 40 C.F.R. parts 60 and 61, requirements within any
applicable State implementation plan, any permit requirements established pursuant to 40 C.F.R. 52.21 or
under regulations approved pursuant to 40 C.F.R. part 51, subpart I, including operating permits issued
under an EPA-approved program that is incorporated into the State implementation plan and expressly
requires adherence to any permit issued under such program
17
40 C.F.R. §70.5(c)(8)(iii)”(B).
18
JCDH, Draft Permit No. 4-07-0030-04 for ACIPCO (October 18, 2020) at 16, available at
https://www.jcdh.org/SitePages/Programs-Services/Scores-
Lists/Air/AirDocumentation.aspx?NoticeId=372&Type=2
5
to comply with the terms and conditions of the permit. Instead, General Condition 5.A. required
compliance with “all conditions of the Rules and Regulations.” Accordingly, JCDH must either
add a General Condition for a duty to comply that states “the permittee shall comply with all
conditions of the permit” or incorporate this exact underlined language into General Condition 5.

Additionally, permit conditions must be added that stipulate that ACIPCO will continue
to comply with requirements for which the source is in compliance and that for requirements that
will become effective during the term of the permit, ACIPCO will meet such requirements on a
timely basis. Accordingly, JCDH must add all of these conditions to the final permit.

B. As written, General Condition 44.B. is incomplete and thus must be revised.

General Condition 45.B. addresses Compliance Certification.19 40 C.F.R. §70.6(c)(5) sets
forth requirements for compliance certification with terms and conditions of the permit and
stipulates what shall be included in the permit. JCDH also stipulates requirements for compliance
certifications in JCAPC R. & Regs. 18.7.1 (adopted April 19, 2017). Generally, a permit must
not be ambiguous on the point that compliance certification covers every term and condition of
the permit.

Additional language must be added to General Condition 45. 40 C.F.R. 70.6(c)(5)(ii)

includes the requirement that in regards to compliance in the part 70 permit must include “a
means for monitoring the compliance of the source with its emissions limitations, standards and
work practices.” JCDH must include the underlined language in General Condition 45.

C. General Condition 34 does not meet federal requirements and must be

revised.

40 C.F.R. §70.6(g) puts forth a definition for “emergency” and the ways in which a
facility can demonstrate the affirmative defense of “emergency.” Additionally, §70.6(g)(4) states
that “in any enforcement proceeding, the permittee seeking to establish the occurrence of an
emergency has the burden of proof.” Additionally, emission standards, by definition, must be
continuous and apply at all times.20

19
Id. at 25.
20
42 USC 7602(k); Sierra Club v. EPA (D.C. Cir. 2008) (held an exemption for malfunction emissions to
be unlawful) and NRDC v. EPA (2014) (held an affirmative defense to civil penalties for malfunctions to
be unlawful).

6
 General Condition 34 sets forth an Emergency Provision21. Although EPA withdrew its
proposed rulemaking22 to remove emergency provisions, it remains that there is no lawful basis
for JCDH to include an emergency exemption or affirmative defense in the Draft Permit. General
Condition 34 is equivalent to an unlawful exemption and affirmative defense for emissions
during a malfunction. If anything, an emergency is an especially important time to ensure
emission standards apply; to help prevent them and to ensure there are consequences for harm
that any emergency emissions cause to public health and the community’s natural environment.

Additionally, General Condition 34 does not track exactly with the federal requirements
of 40 C.F.R. §70.6(g). General Condition 34.B.1. should be revised to add the underlined
language “an emergency occurred and the permittee can identify the cause(s) of the emergency”
in order to mirror 40 C.F.R. §70.6(g)(3)(i).

Although Gasp contends that General Condition 34 in its entirety violates CAA
requirements and undermines citizen enforcement of the CAA, 40 C.F.R. §70.6(g) provides what
may be included in the permit. As such, in order to be federally enforceable, JCDH must revise
the language in 34.B.1. and add the suggested language tracking with the requirements in 40
C.F.R §70.6(g)(4). Gasp also strongly encourages JCDH to remove General Condition 34 in its
entirety.

21
JCDH, Draft Permit No. 4-07-0030-04 for ACIPCO (October 18, 2020) at 21, available at
https://www.jcdh.org/SitePages/Programs-Services/Scores-
Lists/Air/AirDocumentation.aspx?NoticeId=372&Type=2 “An ‘emergency’ means any situation
arising from sudden and reasonably unforeseeable events beyond the control of the source, including acts
of God, which situation requires immediate corrective action to restore normal operation, and that causes
the source to exceed a technology-based emissions limitation under the Operating Permit, due to
unavoidable increases in emissions attributable to the emergency. An emergency shall not include
noncompliance to the extent caused by improperly designed equipment, lack of preventative maintenance,
careless or improper operation, or operator error.” Jefferson County Board of Health Air Pollution
Control Rules and Regulations 18.11.2.
22
On May 22, 2015, in response to a ruling by the United States Court of Appeals for the District of
Columbia in NRDC v. EPA (Natural Resources Defense Council v. EPA, 749 F.3d 1055 (D.C. Cir.
2014)), The United States Environmental Protection Agency (EPA) found that certain State
Implementation Plan (SIP) provisions in 36 states, including Alabama, were substantially inadequate to
meet CAA requirements. See State Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA’s SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy;
and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown
and Malfunction, 80 Fed. Reg. 33840 (final action June 12, 2015) (to be codified at 40 C.F.R. pt. 52 at
33962). Specifically, EPA found that exemptions during emergencies (Ala. Admin Code Rule 335-3-14-
.03(1)(h)(2); JCDH regulations are substantively identical to 2.3.1(h)(2)) were substantially inadequate to
meet CAA requirements and thus issued a SIP call with respect to these provisions. State Implementation
Plans: Response to Petition for Rulemaking; Restatement and Update of EPA’s SSM Policy Applicable to
SIPs; Findings of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying to Excess
Emissions During Periods of Startup, Shutdown and Malfunction, 80 Fed. Reg. 33840 (final action June
12, 2015) (to be codified at 40 C.F.R. pt. 52 at 33962).

7
 D. There is no condition for records of required monitoring.

40 C.F.R. §70.6(a)(3)(ii)(A) requires that all permits contain certain requirements for
Monitoring: “the permit shall incorporate all applicable recordkeeping requirements and require,
where applicable, the following: (A) Records of required monitoring information that include the
following: (1) The date, place as defined in the permit, and time of sampling or measurements;
(2) The date(s) analyses were performed; (3) The company or entity that performed the analyses;
(4) The analytical techniques or methods used; (5) The results of such analyses; and (6) The
operating conditions as existing at the time of sampling or measurement.”

As a general matter, permitting authorities must take three steps to satisfy the monitoring
requirements in the EPA's part 70 regulations. First, a permitting authority must ensure that
monitoring requirements contained in applicable requirements are properly incorporated into the
title V permit.23 Second, if the applicable requirements contain no periodic monitoring,
permitting authorities must add monitoring “sufficient to yield reliable data.24 Third, if the
applicable requirement has associated periodic monitoring but the monitoring is not sufficient to
assure compliance with permit terms and conditions, a permitting authority must supplement
monitoring to assure compliance.25

There is no general permit condition meeting the requirements of 70.6(a)(3)(ii)(A) which

provides for records of required monitoring. As such, JCDH has not satisfied the monitoring
requirements in EPA’s part 70 regulations. Accordingly, JCDH must include a general condition
for records of required monitoring that tracks exactly with the requirements of 70.6(a)(ii)(A).

Further, General Condition 43 addresses “General Recordkeeping Requirements”26 and

General Condition 44 addresses “Submission of Reports and Notifications.”27 First, the way in
which General Condition 44 groups together many requirements into one permit condition is a
bit confusing. This is compounded by the fact that the language does not always track directly
with federal requirements, which calls into question the enforceability of the relevant sections of
the Condition. Certainly, it would be less cumbersome to break apart General Condition 44 into
separate conditions addressing the distinct issues it lumps together.28

23
40 CFR 70.6(a)(3) (i)(A)
24
from the relevant time period that are representative of the source's compliance with the permit.”
40 CFR 70.6(a)(3)(i)(B)
25
See 40 CFR 70.6(c)(1).
26
JCDH, Draft Permit No. 4-07-0030-04 for ACIPCO (October 18, 2020) at 24, available at
https://www.jcdh.org/SitePages/Programs-Services/Scores-
Lists/Air/AirDocumentation.aspx?NoticeId=372&Type=2
27
Id. at 24.
28
For example, compliance certifications addressed in the preamble would function better as a standalone
General Condition. Additionally, lumping together in one condition Title V Compliance Certifications
with other reports that are distinctly different and trigger different requirements is confusing from both a
reviewing and enforcement perspective. Additionally, the “Notification” section in 44.H., while it appears
to parse out differing requirements in its subparts, is clearly a distinct requirement from reports and
records of required monitoring. While including all of the requirements together in this General Condition

8
 Additionally, where neither General Condition 43 or 44 set out the requirements of 40
C.F.R. §70.6(a)(3)(ii)(A), a separate permit condition for “Records of Required Monitoring”
must be created. This permit condition must state that “where applicable, the permit shall require
records of required monitoring information that include the following:
1. The date, place and time of sampling or measurement;
2. The date the analyses were performed;
3. The company that performed the analyses;
4. The analytical techniques or methods used;
5. The results of such analyses; and
6. The operating conditions as existing at the time of sampling or measurement.”29

JCDH must make the aforementioned changes to General Conditions 43 and 44 and add a
General Condition for Records of Required Monitoring.

III. The Draft Permit is Deficient Because it Does Not Include Emission Limits and
Other Conditions Necessary to Assure Compliance with Prevention of
Significant Deterioration requirements for EU001.

Consideration of whether a facility constitutes a “major stationary source” for Prevention

of Significant Deterioration (hereinafter “PSD”) purposes depends on whether the facility emits
or has the potential to emit certain pollutants in excess of specified thresholds: the threshold for
sources within listed categories, including sources such as ACIPCO, is 100 TPY; for all other
sources, 250 TPY.30 Under Alabama’s federally approved SIP the calculation of a facility’s PTE
for purposes of determining whether the facility triggers PSD requirements for a particular
pollutant includes consideration of:

“the maximum capacity of a stationary source to emit any air pollutant under its physical
and operational design. Any physical or operational limitation on the capacity of a
source's potential to emit an air pollutant, including air pollution control equipment and
restrictions on hours of operation or on the type or amount of material combusted, stored,
or processed, shall be treated as part of its design if the limitation is enforceable by the
Administrator. This term does not alter or affect the use of this term for any other
purposes under the Act, or the term "capacity factor" as used in Title IV (Acid Deposition
Control) of the Act or the regulations promulgated thereunder.”31

does not necessarily render the entire Condition unenforceable, per se, it certainly would be preferable for
many subparts of General Condition 34 to be pulled out into their own General Conditions.
29
40 C.F.R. §70.6(a)(3)(ii)(A)
30
See 42 U.S.C. § 7479(1) (defining “major emitting facility”); Ala. Admin. Code r. 335-3-16-.01(1)(q)
(defining “Major Source”); see also40 C.F.R. § 51.166(b)(1)(i) (defining “major stationary source” in
EPA regulations that identify minimum requirements for SIP approved PSD programs); cf. 40 C.F.R. §
52.21 (b)(1)(i) (defining “major stationary source” in EPA regulations for PSD permits issued under the
EPA’s permitting authority).
31
Ala. Admin. Code r. 335-3-16-.01(1)(u). See also 40 C.F.R. § 51.166(b)(4) (PTE definition in EPA
regulations that identify minimum requirements for SIP approved PSD programs); cf. 40 C.F.R. §

9
Therefore, if a permit applicant agrees to enforceable limits that are sufficient to restrict PTE, the
facility’s “maximum capacity to emit” for PTE purposes is calculated based on those limits.32

Importantly, only limits that meet certain enforceability criteria may be used to restrict a
facility’s PTE and the permit must include sufficient terms and conditions such that the source
cannot lawfully exceed the limit.33 One of the key concepts in evaluating the enforceability of
PTE limits is whether the limit is enforceable as a practical matter.34 In order for an emission
limit to be enforceable as a practical matter, the permit must clearly specify how emissions will
be measured or determined for purposes of demonstrating compliance with the limit.35. Thus,
limitations must be supported by monitoring, recordkeeping, and reporting requirements
“sufficient to enable regulators and citizens to determine whether the limit has been exceeded
and. if so. to take appropriate enforcement action.”36 Further, generally speaking, to effectively
restrict a facility’s PTE under the relevant major stationary source threshold, a permit’s emission
limits must apply at all times to all actual emissions, and all actual emissions must be considered
in determining compliance with the respective limits.37 Additionally, as the EPA has previously
explained: “Although it is generally preferred that PTE limitations be as short-term as possible
(e.g., not to exceed one month), EPA guidance allows permits to be written with longer term
limits if they are rolled (meaning recalculated periodically with updated data) on a frequent basis
(e.g., daily or monthly). [EPA guidance] also recognizes that such longer rolling limits may be
appropriate for sources with ‘substantial and unpredictable variation in production.”’38 This type
of rolling cumulative limit may be appropriate where the permitting authority determines that the
limit, in combination with applicable monitoring, reporting, and recordkeeping, provides an
assurance that compliance can be readily determined and verified.39

Condition 1 for EU001 refers to a “plant-wide annual VOC emissions limit not to exceed

52.21(b)(4) (PTE definition in EPA regulations for PSD permits issued under EPA’s permitting
authority).
32
In the Matter of: Yuhuang Chemical Inc. Methanol Plant St. James Parish, Louisiana, Order on
Petition No. VI-2015-03 (Aug. 31, 2016) at 13 (quoting In the Matter of Hu llonua Bioenergy Facility,
Order on Petition No. IX-2011-1 (Feb. 7. 2014) at 9 (Hu Honua Order); Cash Creek Order at 15; In the
Matter of Kentucky Syngas, LLC, Order on Petition No. IV-2010-9 (June 22, 2012) at 28 (Kentucky
Syngas Order)).
33
Id. at 14 (quoting Cash Creek Order at 15 (explaining that an “emission limit can be relied upon to
restrict a source’s PTE only if it is legally and practicably enforceable”); In the Matter of Orange
Recycling and Ethanol Production Facility. Pencor- Masada Oxynol, LLC, Order on Petition No. 11-
2001-05 (April 8. 2002) at 4-7 (2002 Pencor- Masada Order)).
34
Id. at 14 (quoting See, e.g., 2002 Pencor-Masada Order at 4- 7 (emphasizing the importance of
practical enforceability in the permit terms and conditions that limit PTE). Moreover, the concept of
“federal enforceability” has also been interpreted to encompass a requirement for practical
enforceability. See. e.g.. In re Shell Offshore, Inc., Kulluk Drilling Unit and Frontier Discoverer Drilling
Unit. 13 E.A.D. 357. 394 n.54 (EAB 2007)).
35
Id. at 14 (citing Hu Honua Order at 10).
36
Id. at 14 (citing 2002 Pencor-Masada Order at 7).
37
Id. at 14 (citing Hu Honua Order at 10-11; Cash Creek Order at 15; Kentucky Syngas Order at 29-30).
38
Id. at 14 (citing 2002 Pencor-Masada Order at 6).
39
Id. at 14 (citing Pencor-Masada Order at 7).

10
1,045.32 tons/year” and cites “New Source Review” as the underlying regulation40. It is unclear
what “New Source Review” means in this context, and this reference is problematic, at best.
However, we can reasonably assume EU001 is subject PSD emission limitations. ACIPCO
clearly agreed to enforceable limits that are sufficient to restrict PTE, the facility’s “maximum
capacity to emit” for PTE purposes is calculated based on those limits. The blanket cite to “New
Source Review” is all that is provided.

Gasp is unable to meaningfully engage in whether limits that meet certain enforceability
criteria may be used to restrict a facility’s PTE and the permit must include sufficient terms and
conditions such that the source cannot lawfully exceed the limit. Because the original air permit
establishing the PSD limits referred to in Condition 1 for EU001 of the Draft Permit is neither
part of the permit record nor publicly available, Gasp unable to determine what, if any, analysis
was performed by JCDH to establish these limits. This deficiency is so severe that JCDH must
renotice the Draft Permit and include the underlying permit establishing the PSD limits.

IV. Conclusion

JCDH published several general conditions in the Draft permit that must be revised
before a final permit is issued. JCDH must also clarify facility-wide compliance and thusly
amend the permit accordingly. Further, the plant-wide annual VOC limits for EU001 are not
properly supported by the permit record and impeded Gasp’s ability to review and comment,
thus requiring JCDH to renotice the permit properly supported by the permit record. Gasp looks
forward to JCDH addressing our concerns, recommendations and revisions suggested in this
comment.

We appreciate the opportunity to comment.

Respectfully submitted,

Haley Colson Lewis

Staff Attorney
Gasp

40
JCDH, Draft Permit No. 4-07-0030-04 for ACIPCO (October 18, 2020) at 49, available at
https://www.jcdh.org/SitePages/Programs-Services/Scores-
Lists/Air/AirDocumentation.aspx?NoticeId=372&Type=2
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