§ 19-0311 — Operating permit program for sources subject to federal Clean Air Act

§ 19-0311. Operating permit program for sources subject to federal Clean\n Air Act.\n 1. The department shall establish an operating permit program for\nsources subject to Title V of the Act. Upon approval of such program by\nthe administrator, the following sources of regulated air contaminants,\nhereinafter referred to as "sources", shall obtain an operating permit\npursuant to this section:\n a. major stationary sources;\n b. any source, including an area source, subject to a standard,\nlimitation or other requirement under section 7412 of the Act, except\nthat a source is not required to obtain an operating permit pursuant to\nthis section solely because it is subject to regulation under section\n7412(r) of the Act;\n c. sources subject to a standard, limitation or other requirement\nunder section 7411 of the Act;\n d. affected sources pursuant to Title IV of the Act; and\n e. any source in a source category designated by the commissioner in\nregulation, which shall be the same as the list of sources promulgated\nby the administrator pursuant to the Act.\n 2. In implementing this section, the department shall:\n a. review and revise, as necessary to be consistent with the Act and\nother applicable federal and state laws, existing regulations to provide\nfor adequate, streamlined and reasonable procedures for processing\npermit applications, for public notice and participation, including\noffering an opportunity for public comment and hearing, and for\nexpeditious review of permit actions, including applications, renewals\nand revisions;\n b. notwithstanding the provisions of paragraph i of this subdivision,\nestablish regulations for a phased schedule for acting on complete\npermit applications. Such schedule shall ensure that at least one-third\nof such permits shall be acted upon by the department annually over a\nperiod of three years after the administrator approves the operating\npermit program;\n c. promulgate regulations, consistent with the Act and other\napplicable federal and state laws, for expeditiously determining whether\nan application for a permit is complete. Such regulations shall specify\nthat, in order to be deemed complete, an application shall include:\n (i) source identification information;\n (ii) a description of the source's processes and products by Standard\nIndustrial Classification Code, including any associated with alternate\nscenarios identified by the source;\n (iii) an identification and description of emissions and emission\npoints, including rates of such emissions in sufficient detail to\nestablish the basis for the fees and applicability of requirements of\nthe Act;\n (iv) an identification of pollution control activities and compliance\nmonitoring devices or activities;\n (v) any limitations on operations or any work practice standards;\n (vi) any calculations on which the information provided to the\ndepartment is based;\n (vii) citation and description of all applicable requirements in state\nand federal law;\n (viii) a description of or reference to any applicable test method for\ndetermining compliance with applicable requirements;\n (ix) information determined necessary by the department to define\nalternative operating scenarios identified by the permit applicant;\n (x) compliance plans;\n (xi) schedules of compliance;\n (xii) schedules for submission of certified progress reports;\n (xiii) a compliance certification;\n (xiv) completed forms as required under Title IV of the Act;\n (xv) certification by a responsible official that the information\nsubmitted is true, accurate and complete; and\n (xvi) any other information required by the Act or other applicable\nfederal or state laws and implementing regulations. Provided, however,\nthat applications for permit revisions need contain such information\nonly to the extent required by the Act or regulations promulgated\nthereunder.\n d. determine, consistent with subdivision 3 of section 70-0117 of this\nchapter, whether an application is complete within sixty days of\nreceipt, provided that if the department does not make such\ndetermination within sixty days, the application is deemed complete. If\nthe department deems the application to be incomplete, the department\nmust, consistent with subdivision 1 of section 70-0109 of this chapter,\nprovide a written explanation of any deficiencies found in the\napplication;\n e. provide for issuance, after notice and opportunity for public\ncomment, of a general permit covering numerous similar sources for\npurposes of complying with Title V of the Act or this article. Such\nregulations shall ensure that the general permit complies with all\nrequirements applicable under the Act and this chapter and identified\ncriteria by which sources may qualify for such general permit.\nNotwithstanding subdivision five of this section, the source shall be\nsubject to enforcement action for operation without a permit if the\nsource is determined not to qualify for the conditions and terms of the\ngeneral permit. Such regulations shall require that any source proposing\nto operate pursuant to a general permit shall request such permit in\nwriting, and the department shall respond to such request in writing\nwithin sixty days;\n f. provide that a single permit will be issued for each source, except\nupon request of a source. In no case shall the determination of whether\na source is subject to the requirement to obtain an operating permit\npursuant to this section be affected by the application for or issuance\nof more than one operating permit for that source. In no case shall a\nsource which has been issued multiple permits be allowed to make minor\nmodifications which, in the aggregate, would be a significant\nmodification if the source had been issued a single permit, unless such\nsource complies with all of the requirements for a significant\nmodification;\n g. provide for issuance of a single permit authorizing emissions from\nsimilar operations at multiple temporary locations, provided that such\npermit shall not be issued unless it includes conditions that will\nensure compliance with the requirements of this chapter and the Act at\nall authorized locations and unless it requires the owner or operator to\nnotify the department in advance of each change in location;\n h. establish provisions for notifying each state which is within fifty\nmiles of a source that has submitted an application for an operating\npermit. Such notifications shall be consistent with section 7661d of the\nAct and Article 70 of this chapter and the state administrative\nprocedure act;\n i. take final action on a permit application within eighteen months\nafter the date of receipt of a complete application. Notwithstanding any\nother provision of law, in the event the department fails to act on a\ncomplete permit application or a complete permit renewal application\nwithin eighteen months, such failure shall be treated as a final agency\naction solely for the purpose of judicial review; and\n j. require revisions to a permit to incorporate applicable\nrequirements under the Act or state law if the remaining permit term is\nthree years or more. If the permit term is three years or more or if the\npermit has been extended pursuant to paragraph b of subdivision five of\nthis section, such revision shall be completed not later than eighteen\nmonths after promulgation of the applicable requirement.\n k. provide an exemption from regulation with respect to volatile\norganic compounds for any bakery facility which (i) derives at least\nfifty percent of its revenues from retail sales on premises, or (ii)\nutilizes only batch ovens in its baking process. A "batch oven" shall be\ndefined as a non-conveyor belt oven operating on a single baking cycle\nin which a determinate amount of product is cooked at one baking.\n 3. Operating permits issued pursuant to this section shall include the\nfollowing conditions:\n a. emissions limitations or standards including standards established\nby the Act and this article, and references to the origin of and\nauthority for each term and condition;\n b. provisions for a fixed permit term, not to exceed five years,\nunless a shorter term is requested by the source or the department\ndetermines a shorter term is appropriate, except if a different term is\nrequired to comply with the Act;\n c. provisions for detailed monitoring, recordkeeping and reporting,\nincluding requirements that records be kept for five years, and that\nmonitoring records be submitted to the department at least every six\nmonths, provided, however, that, unless required by the Act, continuous\nemissions monitoring need not be required if alternative methods are\navailable that provide sufficiently reliable and timely information for\ndetermining compliance;\n d. A prohibition on emissions in excess of any allowances held by an\naffected source under Title IV of the Act;\n e. terms and conditions, if requested by the source, for the trading\nof emissions increases and decreases within a facility, to the extent\napplicable requirements provide for such trading;\n f. provisions for alternative operating scenarios where a source\nidentifies such scenarios in its permit application for department\napproval, and where such scenarios are approved by the department;\n g. provisions for emergencies beyond the control of the source;\nnotwithstanding section 71-2109 of this chapter, an "emergency" shall\nmean any situation arising from sudden and reasonably unforeseeable\nevents beyond the control of the source, which situation requires\nimmediate corrective action to restore normal operation and which causes\nthe source to exceed a technology-based emission limitation under the\npermit, due to unavoidable increases in emissions attributable to the\nemergency. An emergency shall not include noncompliance to the extent\ncaused by improperly designed equipment, lack of preventative\nmaintenance, careless or improper operation, or operator error;\n h. identification of the terms of the permit that are federally\nenforceable;\n i. provisions for inspection, entry, monitoring, compliance\ncertification and reporting to assure compliance with the permit terms\nand conditions;\n j. unless inconsistent with the Act, provisions for confidentiality of\nproprietary information pursuant to subdivision two of section\neighty-seven of the public officers law, and regulations promulgated\nthereunder;\n k. provisions to allow an existing source to voluntarily make early\nreduction(s) in hazardous air pollutants, pursuant to section 7412(I)\n(5) of the Act, and provisions to establish emissions standards for\nhazardous air pollutants on a case-by-case basis pursuant to section\n7412(d), (g) and (j) of the Act in the event the administrator fails to\nmeet the deadlines established pursuant to section 7412(e) of the Act\nfor the promulgation of such standards applicable to a source or source\ncategory;\n l. provisions that no existing source that has installed best\navailable control technology (as defined in section 7479(3) of the Act),\nor technology required to meet a lowest achievable emission rate (as\ndefined in section 7501 of the Act), prior to the promulgation of a\nstandard applicable to such source under section 7412(d) and (j) for the\nsame pollutant (or stream of pollutants) shall be required to comply\nwith such standard under this section until the date five years after\nthe date on which such installation or reduction has been achieved, as\ndetermined by the department;\n m. provision for a severability clause to ensure the continued\nvalidity of the various permit conditions in the event of a challenge to\nany portion of a permit;\n n. provisions to allow that, for any performance or emission standard\nor other requirement established for a source prior to the issuance of\nan operating permit, such permit may contain a compliance schedule\nrequiring the source to achieve compliance as soon as practicable but\nnot later than the time required by the Act or this article or\nregulations promulgated thereunder;\n o. provisions requiring compliance with all conditions of the permit,\nand requiring that noncompliance be grounds for enforcement action; for\npermit termination, revocation and reissuance, or revision; or for\ndenial of a permit renewal application;\n p. provisions allowing for changes within a source without requiring a\npermit revision provided that such changes are not modifications under\nTitle I of the Act and the changes do not exceed the emissions allowable\nunder the permit; provided, however, that the source must provide the\ndepartment with written notification at least seven days in advance of\nthe proposed changes;\n q. provisions specifying the conditions under which the permit may be\nreopened and revised prior to the expiration, as prescribed by\nregulation, and providing that reopenings shall not be initiated before\na notice of such intent is provided to the source by the department at\nleast thirty days in advance of the date that the permit is to be\nreopened, except that the department may provide a shorter time period\nin the case of an emergency; and\n r. other conditions necessary to assure compliance with the Act and\nother applicable federal and state laws and implementing regulations.\n 4. a. The department shall provide adequate, streamlined, and\nreasonable procedures for expeditiously processing applications for\nminor permit modifications, as defined in regulations. Minor\nmodifications may include those that:\n (i) do not violate any applicable requirement of this article or the\nAct;\n (ii) do not involve significant changes to existing monitoring,\nreporting, or recordkeeping requirements in the permit;\n (iii) do not require or change a case-by-case determination of an\nemission limitation or standard, or a source specific determination for\ntemporary sources of ambient impacts, or a visibility or increment\nanalysis;\n (iv) do not seek to establish or change a permit term or condition for\nwhich there is no corresponding underlying applicable requirement and\nthat the source has assumed to avoid an applicable requirement to which\nthe source would otherwise be subject to, including but not limited to\nfederally enforceable emissions caps assumed to avoid classification as\na modification under any provision of Title I or emissions limitations\napproved pursuant to section 7412(i)(5) of the Act; or\n (v) do not constitute a modification under Title I of the Act.\n b. Upon application by a source for a minor permit modification, the\ndepartment shall determine whether such application is complete within\nfifteen days after receipt of such application and whether such proposed\nmodification is minor within twenty-five days after receipt of such\napplication. The department may require public notice of such\napplication and the department's determination of whether the\nmodification is minor. If such modification is deemed minor, the source\nmay proceed with the modification. The department shall approve or deny\na minor permit modification within ninety days of the receipt of an\napplication under this subdivision or fifteen days after the end of the\nadministrator's forty-five day review period pursuant to section\n7661d(b)(1) of the Act, whichever is later, unless such modification is\ntreated as a new application. The provisions of subdivision five of this\nsection are not applicable to minor modifications until the source\nreceives the final approval from the department.\n 5. a. The department shall include in a permit issued pursuant to this\nsection a provision stating that compliance with the conditions of the\npermit shall be deemed compliance with the applicable requirements of\nthe Act as of the date of permit issuance, provided that:\n (i) such applicable requirements are specifically identified in the\npermit; or\n (ii) the department, in acting on the permit application or revision,\ndetermines in writing that other requirements specifically identified\nare not applicable to the source, and the permit includes the\ndetermination or a concise summary thereof. Provided further that\nnothing herein shall preclude the department from revising or revoking\nthe permit pursuant to article seventy of this chapter or from\nexercising its summary abatement authority under sections 71-0301 or\n71-1719 of this chapter.\n b. Consistent with section four hundred one of the state\nadministrative procedure act, the terms and conditions of a permit are\nautomatically continued pending final determination by the department on\na request for renewal or initial application for an operating permit,\nprovided a permittee has made a timely and complete application and paid\nthe fees pursuant to section 72-0303 of this chapter.\n