September 23, 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. 4-07-0455-05

Dear Dr. Masuca:

Gasp1 respectfully submits the following comment on the Synthetic minor Operating
Draft Permit No. 4-07-0455-05 (“Draft Permit”). We appreciate the opportunity to make these
public comments. Gasp hopes that you will take into consideration our comments and
recommendations.

I. Purpose

Gasp is a nonprofit organization with a mission to advance healthy air environmental justice
in the Greater-Birmingham area through education, advocacy, and organizing. 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 C&B Piping. 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.

1
Gasp is a non-profit health advocacy organization fighting for healthy air in Alabama. Our mission is to reduce air
pollution, educate the public on the health risks associated with poor air quality and encourage the community's
leaders to serve as role models for clean air and clean energy production. http://www.gaspgroup.org
 II. The Statement of Basis is lacking key elements essential for the public to review.
A. The Statement of Basis should include additional information to fulfill required
elements of §502 of the CAA2.

40 C.F.R. §70.7(a)(5) requires that a permitting authority provide “a statement that sets
forth the legal and factual basis for the draft permit conditions (including references to the
applicable statutory or regulatory provisions). The permitting authority shall send this statement
to EPA and to any other person who requests it.” Additionally, “a statement of basis must
describe the origin or basis of each permit condition or exemption. However, it is more than just
a short form of the permit. It should highlight elements that U.S. EPA and the public would find
important to review.” In the Matter of Onyx Environmental Services, Order on Petition No. V-
2005-1 (February 1, 2006).

First, in addition to suggestions provided by the Onyx Order, EPA Region 9 Air Division
provided a list of air quality factors to serve as guidance to California permitting authorities
when developing a statement of basis.3 In addition to the updates provided in this section, it
would be prudent, and in line with the Onyx Order guidance, to also include the following
sections in the SOB:
1. Identification of applicable requirements for insignificant activities or
State-registered portable equipment that have not previously been identified at the
facility; and
2. Any district permits to operate or authority to construct permits, if
applicable.
Second, JCDH must improve its quality assurance review prior to issuing draft SOB
documents. For example, the SOB for C&B Piping mentions the previous Title V permits for the
source, but fails to mention the date of submittal of the permit applications by C&B Piping.
Additionally, the “Permitting, Application and Construction History” section also does not
indicate when JCDH deemed the application complete, and if the source supplemented their
application.

Furthermore, the lack of an easily accessible database for permitted facilities compounds
the issues discussed above. For example, on September 10, 2020 Gasp requested from JCDH all
permits for the source and a confirmation of the date of submittal by the source or receipt by
JCDH of such application (because the publicly available permit application contains no such
information), in addition to other records. Because the source has a duty to submit its renewal

2
Although Gasp is submitting comments on additional information required in the SOB, Gasp also wants to
comment that the SOB for C&B Piping’s Draft Permit includes many more elements and information important for
the EPA and the public to review than previous Draft Permits reviewed by Gasp. Gasp appreciates such
improvement in the SOB and looks forward to continued improvement and inclusion of all information that is
important for the public to review.
3
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.
application at least 6 months prior to the expiration of the permit,4 such information is certainly
important for the public to review. Relatedly, the current permit publicly available for the source
is Permit No. 4-07-0455-03, which expired on November 23, 2015 However, the SOB reveals
that a more recent permit, 4-07-0455-04 exists5, which was issued October 14, 2015. Gasp is
concerned that for nearly five years the public did not have access to the permit that applied to
this facility. Moreover, this more recent permit is not accessible to the public without submitting
a records request to JCDH. While the SOB cannot correct the Program’s deficiencies for readily
available permit records for the public to access and review, a robust SOB certainly better
informs the public and enables the public to more adeptly navigate the complex process of
obtaining relevant permit records in order to meaningfully participate in the Title V public
comment process.

JCDH should make these changes in order to fulfill their duty to ascertain that the
information available to the public is accurate and that the SOB highlights elements EPA and the
public would find important to review.
B. The Statement of Basis must include more information in the “Compliance and
Enforcement” Section.

Although JCDH does state the facility is in compliance with the current permit and no
NOVs have been noticed to the source for the past 5 years, it would be helpful to include in this
section any times in which C&B Piping could not certify compliance. Specifically, this section
should address whether C&B Piping is subject to a compliance schedule. Additionally, pursuant
to arguments about the questionable compliance status for C&B Piping raised in Sections IV.A,
B and VII. of this Comment, it might be necessary for JCDH to re-notice the Draft Permit and
include a more robust “Compliance and Enforcement” Section covering the compliance issues
highlighted in this Comment.

III. 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.

4
“An application for renewal shall be submitted at least six (6) months before the date of permit expiration, unless a
longer period (not to exceed 18 months) is specified in the permit.” JCAPC R. & Regs. 18.4.3 (adopted April 19,
2017)
5
However, Gasp would also like to note that by including this information in the SOB, as they should, JCDH did
provide information that is important for the public to review, that Gasp otherwise would have not known without
the inclusion of such information in the SOB. This underscores our argument that a comprehensive SOB is critical to
meaningful public participation.
 A thorough review of Draft Permit No. 405-0001 highlighted several missing or
misstated general permit conditions. Each Title V permit must include and assure compliance
with all federally enforceable6 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. The Draft Permit does not contain a condition for a claim of confidential
information.

40 C.F.R. §70.6(a)(6)(v) specifies that “for information claimed to be confidential, the

permittee may furnish such records directly to the Administrator along with a claim of
confidentiality.” This language is neither its own condition in the General Permit Conditions, nor
is it incorporated into another condition. JCDH must revise the permit to comply with federal
requirements by including a confidential information condition, or in the alternative,
incorporating the requirements of §70.6(a)(6)(v) into another, applicable condition relevant to
providing information.
B. There is no condition requiring C&B Piping 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.”

There is no general condition that requires C&B Piping comply with all conditions of the
permit. General Condition 57 addresses noncompliance covered in 70.6(a)(6)(i). However,
neither in this condition nor any other condition in the permit is there an explicit duty to comply.
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 language into
General Condition 5.

6
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
7
JCDH, Draft Permit No. 4-07-0455-05 for C&B Piping (August 23, 2020) at 3, available at
https://www.jcdh.org/SitePages/Misc/PdfViewer?AdminUploadId=406.
 C. There is no condition for reopening the permit for cause.
40 C.F.R. §70.6(a)(6)(i) requires that all permits contain certain elements, including a
provision that states that “[t]he permit may be modified, revoked, reopened, and reissued, or
terminated for cause. The filing of a request by the permittee for a permit modification,
revocation and reissuance, or termination, or of a notification of planned changes or anticipated
noncompliance does not stay any permit condition.”

Although General Condition 208 provides for the reasons the permit may be revoked and
General Condition 229 stipulates the circumstances in which the permit will be reopened and
revised, neither of these conditions nor any other conditions meet the requirements of
§70.6(a)(6)(i) in its entirety. There must be a general condition that explicitly states that “the
permit may be modified, revoked, reopened, and reissued or terminated for cause.” Additionally,
there must also be a general condition stating that “the filing of a request by the permittee for a
permit modification and reissuance, or termination, or of a notification of planned changes or
anticipated noncompliance does not stay any permit condition.” JCDH must incorporate the
language above into the permit into two separate general conditions, or both requirements could
be together as one general condition, or the language could be incorporated into General
Condition 20 or 22.

D. As written, General Condition 43.A. is incomplete and thus must be revised.

General Condition 43.A. addresses Compliance Certification.10 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.

First, the text of General Condition 43.A. is incomplete. To fulfill the requirements of 40
C.F.R. 70.6 (c)(5), the first sentence of General Condition 43.A. must be revised to read “A
compliance certification with terms and conditions contained in the permit, including emissions
limitations, standards and work practices shall be submitted yearly [...]” By adding in the
underlined language, the deficiency would be corrected.

Second, General Condition 43.A.1. should read that “The identification of every term or
condition of this permit that is the basis for certification.” Without the addition of the underlined
language, as written, General Condition 43.A.1 is not sufficiently specific and is ambiguous that
certification covers every term and condition of the permit. By adding in the word “every” this
deficiency would be corrected.

Finally, additional language must be added to General Condition 43. 40 C.F.R.

70.6(c)(5)(ii) includes the requirement that in regards to compliance in the part 70 permit must

8
Id. at 5.
9
Id. at 5-6.
10
JCDH, Draft Permit No. 4-07-0455-05 for C&B Piping (August 23, 2020) at 10, available at
https://www.jcdh.org/SitePages/Misc/PdfViewer?AdminUploadId=406.
include “a means for monitoring the compliance of the source with its emissions limitations,
standards and work practices.” JCDH must include this language in General Condition 43.

E. General Condition 33 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. 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).
General Condition 33 sets forth an Emergency Provision11. Although EPA withdrew its
proposed rulemaking12 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 33 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 33 does not track exactly with the federal requirements
of 40 C.F.R. §70.6(g). General Condition 33.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 33 in its entirety violates CAA
requirements and undermines citizen enforcement of the CAA, 40 C.F.R. §70.6(g) provides what

11
Id. at 7. “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.
12
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).
may be included in the permit. As such, in order to be federally enforceable, JCDH must revise
the language in 33.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 33 in its
entirety.

F. 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. 40 CFR 70.6(a)(3) (i)(A). Second, if the applicable requirements contain no
periodic monitoring, permitting authorities must add monitoring “sufficient to yield reliable data
from the relevant time period that are representative of the source's compliance with the permit.”
40 CFR 70.6(a)(3)(i)(B). 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. See 40 CFR 70.6(c)(1).

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).

IV. Emissions Unit Specific Issues

A. Emissions Unit 1 Conditions 5 and 7 are not applicable to the source and
thus must be removed.

42 U.S.C. 661c.(c) states that each Title V permit “issued under this subchapter shall
set forth inspection, entry, monitoring, compliance certification, and reporting requirements to
assure compliance with the permit terms and conditions. Such monitoring and reporting
requirements shall conform to any applicable regulation under subsection (b) of this section. A
draft permit must include all applicable emission limits and standards and must also include all
monitoring, reporting and recordkeeping requirements to assure compliance with those
standards. See CAA §§ 502(a) and 504(a), 42 U.S.C. §§7661a(a) and 7661c(a) and 57 Fed. Reg.
32,250, 32,251 (July 21,1992) (EPA final action promulgating the part 70 rule).

Subpart MMMM provides for National Emission Standards for Hazardous Air
Pollutants for Surface Coating of Miscellaneous Metal Parts and Products. 40 C.F.R. § 63.3891
provides sources with options to meet Hazardous Air Pollutant (hereinafter “HAP”) emissions
limits: “You must include all coatings (as defined in § 63.3981), thinners and/or other additives,
and cleaning materials used in the affected source when determining whether the organic HAP
emission rate is equal to or less than the applicable emission limit in § 63.3890. To make this
determination, you must use at least one of the three compliance options listed in paragraphs (a)
through (c) of this section13.”

First, the Draft Permit provides for all three optionsi for meeting HAP emission limits
pursuant to 40 C.F.R. § 63.389114. However, all of C&B Piping’s semi annual reports15 indicate
C&B Piping is opting only for (b), which provides for the option of emissions rate add-on
controls. Where there is no indication that the source is switching between compliance options, it
is unclear why Conditions 5 and 7 are necessary to be included in the Draft Permit.

Additionally, the issue in Section III.F. of this Comment (no General Condition requiring
records of required monitoring) is compounded by the fact that the source is not complying with

13
“You may apply any of the compliance options to an individual coating operation, or to multiple coating
operations as a group, or to the entire affected source. You may use different compliance options for different
coating operations, or at different times on the same coating operation. You may employ different compliance
options when different coatings are applied to the same part, or when the same coating is applied to different parts.
However, you may not use different compliance options at the same time on the same coating operation. If you
switch between compliance options for any coating operation or group of coating operations, you must document
this switch as required by §63.3930(c), and you must report it in the next semiannual compliance report required in
§63.3920.

(a) Compliant material option. Demonstrate that the organic HAP content of each coating used in the coating
operation(s) is less than or equal to the applicable emission limit in §63.3890, and that each thinner and/or other
additive, and cleaning material used contains no organic HAP. You must meet all the requirements of §§63.3940,
63.3941, and 63.3942 to demonstrate compliance with the applicable emission limit using this option.

(b) Emission rate without add-on controls option. Demonstrate that, based on the coatings, thinners and/or
other additives, and cleaning materials used in the coating operation(s), the organic HAP emission rate for the
coating operation(s) is less than or equal to the applicable emission limit in §63.3890, calculated as a rolling 12-
month emission rate and determined on a monthly basis. You must meet all the requirements of §§63.3950, 63.3951,
and 63.3952 to demonstrate compliance with the emission limit using this option.

(c) Emission rate with add-on controls option. Demonstrate that, based on the coatings, thinners and/or other
additives, and cleaning materials used in the coating operation(s), and the emissions reductions achieved by
emission capture systems and add-on controls, the organic HAP emission rate for the coating operation(s) is less
than or equal to the applicable emission limit in §63.3890, calculated as a rolling 12-month emission rate and
determined on a monthly basis. If you use this compliance option, you must also demonstrate that all emission
capture systems and add-on control devices for the coating operation(s) meet the operating limits required in
§63.3892, except for solvent recovery systems for which you conduct liquid-liquid material balances according to
§63.3961(j), and that you meet the work practice standards required in §63.3893. You must meet all the
requirements of §§63.3960 through 63.3968 to demonstrate compliance with the emission limits, operating limits,
and work practice standards using this option.” 40 C.F.R. §63.3891 (emphasis added).
14
See EU001 Conditions 4-7, JCDH, Draft Permit No. 4-07-0455-05 for C&B Piping (August 23, 2020) at 19,
available at https://www.jcdh.org/SitePages/Misc/PdfViewer?AdminUploadId=406.
15
More specifically, those for the past five years (2015-2020).
the recordkeeping requirements of 40 C.F.R. § 63.4530 (c)(3)16. Looking to the most recent semi
annual report17 submitted by C&B Piping, they provide only a HAP emissions rate, which is not
consistent with the requirements of § 63.4530(c)(3). Further, § 63.455218 stipulates how a source
demonstrates continuous compliance with emissions limitations. Where C&B is not following
the requirements of § 63.4530(c)(3), and neither the semi annual reports, nor any records
produced by JCDH pursuant to a records request19 show the required record of calculation, it is
evident C&B Piping certified continuous compliance without meeting the requirements of 40
C.F.R. §70.6(c)(5) (See also Section IX of this Comment). Not only is the compliance status of
the source called into question, but also, as written the Draft Permit is not correctly identifying
applicable requirements to the source.

Finally, C&B Piping is also failing to demonstrate that the organic HAP emissions rate
for the coating operations is less than or equal to the applicable emission limit in § 63.389020. No
such demonstration was included in C&B Piping’s semi annual reports, annual compliance
certifications nor in any other records produced by JCDH21. Again, this calls into question the

16
“For the emission rate without add-on controls option, a record of the calculation of the total mass of organic HAP
emissions for the coatings, thinners and/or other additives, and cleaning materials used each month using Equations
1, 1A through 1C, and 2 of § 63.3951; and, if applicable, the calculation used to determine mass of organic HAP in
waste materials according to § 63.3951(e)(4); the calculation of the total volume of coating solids used each month
using Equation 2 of § 63.3951; and the calculation of each 12-month organic HAP emission rate using Equation 3 of
§ 63.3951.”
17 nd
2 half of 2019 Semi Annual Report, C&B Piping (January 9, 2020).
18
“To demonstrate continuous compliance, the organic HAP emission rate for each compliance period, determined
according to § 63.4551(a) through (g), must be less than or equal to the applicable emission limit in § 63.4490. A
compliance period consists of 12 months. Each month after the end of the initial compliance period described in §
63.4550 is the end of a compliance period consisting of that month and the preceding 11 months. You must perform
the calculations in § 63.4551(a) through (g) on a monthly basis using data from the previous 12 months of operation.
If you are complying with a facility-specific emission limit under § 63.4490(c), you must also perform the
calculation using Equation 1 in § 63.4490(c)(2) on a monthly basis using the data from the previous 12 months of
operation.”
19
Specifically, on September 14, 2020 Gasp requested various records, including “Records required under
Condition 10 for Facility-Wide Surface Coating of Miscellaneous Metal Parts and Products; and […] 30.D.4: copy
of each notification, report and associated supporting documentation submitted to comply with Subpart MMMM.”
Letter from Haley Colson Lewis to Jonathon Stanton (September 14, 2020) (on file with author). This request would
have included records pursuant to 40 C.F.R. § 63.4530(c)(3) (the record of calculation), and no such record was
produced. Additionally, semi annual reports were produced pursuant to this request, and they also do not contain the
required information of § 63.4530(c)(3) or § 63.4552.
20
“Emission rate without add-on controls option. Demonstrate that, based on the coatings, thinners and/or other
additives, and cleaning materials used in the coating operation(s), the organic HAP emission rate for the coating
operation(s) is less than or equal to the applicable emission limit in § 63.3890, calculated as a rolling 12-month
emission rate and determined on a monthly basis. You must meet all the requirements of §§ 63.3950, 63.3951, and
63.3952 to demonstrate compliance with the emission limit using this option”
21
On September 16, 2020, Gasp requested, among other records “Emission rate without add-on controls option.
Demonstrate that, based on the coatings, thinners and/or other additives, and cleaning materials used in the coating
operation(s), the organic HAP emission rate for the coating operation(s) is less than or equal to the applicable
emission limit in § 63.3890, calculated as a rolling 12-month emission rate and determined on a monthly basis. You
must meet all the requirements of §§ 63.3950, 63.3951, and 63.3952 to demonstrate compliance with the emission
limit using this option.” See Letter from Haley Colson Lewis to Jonathon Stanton (September 16, 2020) (on file with
author). No records responsive to this request were produced by JCDH, so Gasp can reasonably assume no such
records for C&B Piping exist.
compliance status of the source, and further raises concerns about whether or not C&B Piping is
meeting its requirements for recordkeeping and reporting.

JCDH must rewrite the Draft Permit to contain contains applicable to the source. Without
meeting its recordkeeping and reporting requirements, and where the compliance status of the
source is questionable, it is even more prudent for JCDH to provide Subpart MMMM conditions
that track with 40 C.F.R. § 63.3890 and aligns with the specific operations of the source. As
written, EU001 Conditions 4-7 create a menu of options for C&B Piping which are not specific,
nor properly supported by the source’s permit record. As such, JCDH must revise the Draft
Permit to include only EU001 Condition 6 (without 5 and 7), absent a sufficient demonstration or
more robust recordkeeping by C&B Piping.

B. For Emissions Unit 001, the permit terms and conditions do not specify how
the source will demonstrate compliance with VOC Contents Restrictions.

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.” 56 Fed. Reg. 21712, 21713 (May 10, 1991). Citizens possess the
right to enforce federally enforceable provisions under the CAA. See 42 U.S.C. §7604 (1998 &
Supp. V 1993). “Citizen enforceability is intrinsically tied to federal enforceability and was seen
by Congress as vitally important to the success of the CAA22.” A draft permit must include all
applicable emission limits and standards and must also include all monitoring, reporting and
recordkeeping requirements to assure compliance with those standards. See CAA §§ 502(a) and
504(a), 42 U.S.C. §§7661a(a) and 7661c(a) and 57 Fed. Reg. 32,250, 32,251 (July 21,1992)
(EPA final action promulgating the part 70 rule).

The permit terms and conditions do not specify how the source will demonstrate
compliance with VOC contents restrictions. EU 001 Conditions 2 and 3 parrot the local rules, but
don't specify which of the test methods and procedures in 18.16.7 apply to the source23. Using
the most recent compliance certification as an example, the source is stating their methods for
compliance with the unidentified requirement as "compliance is based upon the review of daily,
monthly and annual coating records24." Again, the compliance certifications do not contain
sufficient information about how C&B Piping is complying, and no such reports and annual
coating records have were by JCDH pursuant to the records request25. As such, it is impossible
for Gasp to meaningfully weigh in on this issue in the Draft Permit.

22
Joyce M. Martin, Crossroads for Federal Enforcement of the Clean Air Act, 6 Duke Environmental Law & Policy
Forum 77-104 (1996)
Available at: https://scholarship.law.duke.edu/delpf/vol6/iss1/2
23
See EU001 Conditions 2 and 3, JCDH, Draft Permit No. 4-07-0455-05 for C&B Piping (August 23, 2020) at 17,
18, available at https://www.jcdh.org/SitePages/Misc/PdfViewer?AdminUploadId=406.
24
2019-2020 Compliance Certification, C&B Piping (April 15, 2020)
25
On September 16, 2020, Gasp requested, among other records “
 Accordingly, where public participation is integral in determining what future
requirements to impose, this particular deficiency is so severe that JCDH must re-notice the
Draft Permit for public comment. The permit record, as produced pursuant to multiple public
records requests, did not provide the requisite information in order for Gasp to learn what VOC
content restrictions are applicable to C&B Piping, and the Draft Permit, as mentioned above,
does not specify how the source will demonstrate compliance with those VOC content
restrictions. As such, Gasp’s public participation in this public comment process was inhibited
by the lack of information required by JCDH and to be submitted by the source. As such, JCDH
must not only correct this deficiency in the Draft Permit, but the permit record should be
supplemented and the Draft Permit should be re-noticed for public comment.

V. The Title V permit should include monitoring sufficient to ensure compliance.

All sources subject to Title V must have a permit to operate that “assures compliance by
the source with all applicable requirements.” See 40 CFR § 70.1(b); CAA section 504(a).
Applicable requirements are defined in section 70.2 to include: “(1) any standard or other
requirement provided for in the applicable implementation plan approved or promulgated by
EPA through rulemaking under Title I of the [Clean Air] Act. . . .”

General Condition 39 provides for emissions testing26. This Condition puts disparate
provisions all in one provision. The Condition functions as an odd catch-all, and will conflict
with other provisions. Further, where this Condition appears to try to cover many, unrelated
requirements in one condition, it could potentially frustrate the purpose of adequate monitoring
to assure compliance. As such, JCDH should remove General Condition 39 in its entirety.

VI. The CAA Requires Title V Emission Sources to Have Sufficient Periodic Monitoring
to Ensure Compliance.
Monitoring requirements consist of both “periodic” and “umbrella” monitoring
rules. See generally Sierra Club v. EPA, 536 F.3d 673 (D.C. Cir. 2011) (hereinafter “Sierra
Club”) (discussing these rules). The periodic monitoring rule provides that where an applicable
requirement does not, itself, “require periodic testing or instrumental or noninstrumental
monitoring,” the permit-writer must develop terms directing “periodic monitoring sufficient to

Daily, monthly and annual coating records (per the “methods for compliance” cited in annual compliance
certifications for Emissions Unit 001 for VOC/HAP contents and restriction emission limits); and Documentation
from C&B Piping and/or indicating which test procedures to determine compliance with Section 8.11.11 was chosen
by the source under JCDH Rules 18.16.7(c), or, in the alternative, documentation showing that the source opted for a
certification by the manufacturer of the composition of the coatings pursuant to 18.16.7(d), and documentation of
the acceptance of such by the Health Officer.” See Letter from Haley Colson Lewis to Jonathon Stanton (September
16, 2020) (on file with author). No records responsive to this request were produced by JCDH, so Gasp can
reasonably assume no such records for C&B Piping exist.

26
JCDH, Draft Permit No. 4-07-0455-05 for C&B Piping (August 23, 2020) at 9, available at
https://www.jcdh.org/SitePages/Misc/PdfViewer?AdminUploadId=406.
yield reliable data from the relevant time period that are representative of the source’s
compliance with the permit.” 40 C.F.R. § 70.6(a)(3)(B). In other words, if NAAQS compliance
is a condition of the permit, the permit must contain monitoring of a frequency and type
sufficient to assure compliance.

The “umbrella” monitoring rule, 40 C.F.R. § 70.6(a)(3)(C), backstops this requirement by

making clear that permit writers must also correct “a periodic monitoring requirement inadequate
to the task of assuring compliance,” Sierra Club, 536 F.3d at 675. This “gap-filler” makes
doubly clear that adequate monitoring is required. Id. at 680. EPA has since affirmed, in a post-
Sierra Club Title V petition ruling, that these requirements are quite rigorous, making clear that
permit writers must develop and “supplement monitoring to assure . . . compliance” on the basis
of an extensive record. In re United States Steel Corp., Petition No. V-2009-03, 2011 WL
3533368, at *5 (EPA Jan. 31, 2011). (“The rationale for the monitoring requirements . . . must be
clear and documented in the permit record,” and adequate monitoring is determined by careful,
content-specific inquiry into the nature and variability of the emissions at issue).

VII. The Compliance Certifications submitted by C&B Piping 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.”
40 C.F.R. §70.6(c)(5)(C),(D).

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." ” Natural Res. Defense Council, Inc. v.
E.P.A, 194 F.3d 130, 138 (D.C. Cir. 1999. This requirement is in addition to the requirements in
§70.6(c)(5)(iii), which go unit-by-unit27, as C&B Piping’s Compliance Certifications do. In their

27
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 APC: “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
Compliance Certifications, C&B Piping does not certify overall compliance, either continuous or
intermittent, with all terms and conditions of the permit. Put more simply, while C&B Piping
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 C&B Piping is unclear, calling into question the compliance status of the source.
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.28 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.”29 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.30
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
compliance.31 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.32
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. C&B
Piping does not certify continuous compliance with all permit conditions, 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).

noted deviations and periods of intermittent compliance.” 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
28
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.
29
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
30
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.
31
Id. at 11.
32
See Id. at 11.
 “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.”33
Furthermore, JCDH had authority34 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, calls into question C&B Piping’s compliance status. To the extent
that any of the sections mentioned in Section II. of this Comment were, in fact, omitted from the
SOB, JCDH must review the SOB and re-notice the Draft Permit for public comment.
VIII. Conclusion

JCDH published several general conditions in the Draft permit that must be revised
before a final permit is issued, and arguably, JCDH must revise the Draft Permit and re-notice
for public comment to cure many of the deficiencies identified in this Comment. Issues with
monitoring and recordkeeping provisos for specific emissions units must be corrected, and JCDH
must also clarify facility-wide compliance and thusly amend the permit accordingly. 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

33
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
34
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 ADEM 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).