6 CRR-NY 201-6.4NY-CRR
OFFICIAL COMPILATION OF CODES, RULES AND REGULATIONS OF THE STATE OF NEW YORK
TITLE 6. DEPARTMENT OF ENVIRONMENTAL CONSERVATION
CHAPTER III. AIR RESOURCES
SUBCHAPTER A. PREVENTION AND CONTROL OF AIR CONTAMINATION AND AIR POLLUTION
PART 201. PERMITS AND REGISTRATIONS
SUBPART 201-6. TITLE V FACILITY PERMITS
6 CRR-NY 201-6.4
6 CRR-NY 201-6.4
201-6.4 Standard permit requirements.
(a) General conditions.
With the exception of subdivision (f) of this section the provisions contained in this Subpart are considered standard solely for the Federal portion of the title V facility permit. The operational flexibility provisions under subdivision (f) of this section shall be available under both State and Federal portions of the title V facility permit. Each title V facility permit issued under this Part shall include the following standard provisions:
(1) All Federal emission limitations and standards, including those operational requirements and limitations that assure compliance with all applicable requirements at the time of permit issuance.
(i) The origin of and authority for each term or condition, and any difference in form as compared to the applicable requirement upon which the term or condition is based.
(ii) Any permit containing the department's determination that an alternative emission limit constitutes compliance with a regulation in the State implementation plan shall contain provisions to ensure that the resulting emission limit has been demonstrated to be quantifiable, accountable, enforceable, and based on replicable procedures. The department's determination that an emission source is eligible for an alternative emission limit can be made in the permit issuance, renewal or significant modification process. Permits may only include alternative emission limits if provided for in the State implementation plan and if the alternative emission limit is determined by the department to be equivalent to the limit in the State implementation plan.
(iii) If an existing facility has installed best available control technology (as defined in section 169 of the act), or technology required to meet a lowest achievable emission rate (as defined in section 171 of the act), prior to the promulgation of an applicable MACT or GACT standard to such stationary source, per section 112(d) and (j) of the act, for the same hazardous air pollutant (or stream of hazardous air pollutants) it shall not be required to comply with such standard until the date five years after the date on which installation or reduction has been achieved, as determined by the department.
(2) The permittee must comply with all conditions of the title V facility permit. Any permit non-compliance 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.
(3) The permit may be modified, revoked, suspended, 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.
(4) The owner or operator shall furnish to the department, within a reasonable time, any information that the department may request in writing to determine whether cause exists for modifying, revoking and reissuing, or terminating the permit or to determine compliance with the permit. Upon request, the permittee shall also furnish to the department copies of records required to be kept by the permit or, for information claimed to be confidential, the permittee may furnish such records directly to the administrator along with a claim of confidentiality, if the administrator initiated the request for information or otherwise has need of it.
(5) It is not a defense for an owner or operator in an enforcement action to claim that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.
(6) The permit does not convey any property rights of any sort, or any exclusive privilege.
(7) The owner or operator of a facility shall pay fees to the department consistent with the fee schedule authorized by Subpart 482-2 of this Title.
(8) The department or an authorized representative shall be allowed upon presentation of credentials and other documents as may be required by law to:
(i) enter upon the permittee's premises where a facility subject to the permitting requirements of this Subpart is located or emissions-related activity is conducted, or where records must be kept under the conditions of the permit;
(ii) have access to and copy, at reasonable times, any records that must be kept under the conditions of the permit;
(iii) inspect at reasonable times any emission sources, equipment (including monitoring and air pollution control equipment), practices, and operations regulated or required under the permit; and
(iv) sample or monitor at reasonable times substances or parameters for the purpose of assuring compliance with the permit or applicable requirements.
(9) A severability clause to insure the continued validity of the remaining various permit requirements in the event of a challenge to any portions of the permit.
(b) Permit conditions for monitoring.
Each title V facility permit issued under this Part shall include the following provisions pertaining to monitoring:
(1) all emissions monitoring and analysis procedures or test methods required under the applicable requirements, including any procedures and methods for compliance assurance monitoring as required by the act shall be specified in the permit;
(2) where the applicable requirement does not require periodic testing or instrumental or non-instrumental monitoring (which may consist of recordkeeping designed to serve as monitoring), the permit shall specify the periodic monitoring sufficient to yield reliable data from the relevant time periods that are representative of the major facility's compliance with the permit. Such monitoring requirements shall assure use of terms, test methods, units, averaging periods, and other statistical conventions consistent with the applicable requirements; and
(3) as necessary, requirements concerning the use, maintenance, and installation of monitoring equipment or methods.
(c) Permit conditions for recordkeeping and reporting of compliance monitoring.
(1) The following information must be included in records and reports:
(i) the date, place as defined in the permit, and time of any required sampling or measurements;
(ii) the date(s) any required analyses were performed;
(iii) the company or entity that performed any required analyses;
(iv) the analytical techniques or methods used including quality assurance and quality control procedures if required;
(v) the results of such analyses including quality assurance data where required;
(vi) the operating conditions as existing at the time of any required sampling or measurement;
(vii) any deviation from permit requirements must be clearly identified; and
(viii) reports must be certified by a responsible official, consistent with section 201-6.2 of this Subpart.
(2) Records of all monitoring data and support information must be retained for a period of at least five years from the date of the monitoring, sampling, measurement, report, or application. Support information includes all calibration and maintenance records and all original strip-chart recordings for continuous monitoring instrumentation, all quality assurance information and copies of all reports required by the permit.
(3) The permit shall incorporate all applicable Federal reporting requirements which must include the following:
(i) electronic submittal of reports of any required monitoring at least every six months; and
(ii) notification and reporting of permit deviations and incidences of noncompliance stating the probable cause of such deviations, and any corrective actions or preventive measures taken. If the permittee seeks to have a violation excused as provided in section 201-1.4 of this Part, the permittee shall report such violations as required under section 201-1.4(c) of this Part. In order to have a violation of a Federal regulation (such as a new source performance standard or national emissions standard for hazardous air pollutants) excused, the specific Federal regulation must provide for an affirmative defense during start-up, shutdowns, malfunctions or upsets. All other permit deviations shall only be reported as required under subparagraph (i) of this paragraph, unless the department specifies a different reporting requirement within the permit.
(d) Compliance schedules.
Each title V facility permit issued shall contain the following provisions for compliance:
(1) The permit shall include a provision requiring compliance with the schedule proposed pursuant to section 201-6.2 of this Subpart.
(2) Where any performance or emission standard or other requirement is established for a facility prior to the issuance of a permit, the permit may contain a compliance schedule requiring the facility to achieve compliance as soon as practicable but not later than the time required by the act or an applicable requirement.
(3) Any document (including reports) required by a title V permit shall contain a certification by a responsible official as set forth in section 201-6.2 of this Subpart that based on information and belief formed after reasonable inquiry, the statements and information in the document are true, accurate and complete.
(4) Progress reports consistent with an applicable schedule of compliance and are to be submitted at least semiannually, or at a more frequent period if specified in the applicable requirement or by the department. Such progress reports shall contain the following:
(i) dates for achieving the activities, milestones, or compliance required in the schedule of compliance, and dates when such activities, milestones or compliance were achieved; and
(ii) an explanation of why any dates in the schedule of compliance were not or will not be met, and any preventive or corrective measures adopted.
(e) Compliance certification.
Requirements for compliance certification with terms and conditions contained in the permit, including emission limitations, standards, or work practices. Permits shall include each of the following:
(1) the frequency, not less than annually or more frequent periods as specified in the applicable requirement or by the department, of the electronic submissions of compliance certifications;
(2) a means for assessing or monitoring the compliance of the facility with its emission limitations, standards, and work practices;
(3) a requirement that the compliance certification include the following:
(i) the identification of each term or condition of the permit that is the basis of the certification;
(ii) the compliance status;
(iii) whether compliance was continuous or intermittent;
(iv) the method(s) used for determining the compliance status of the facility, currently and over the reporting period consistent with subdivision (b) of this section;
(v) such other facts as the department shall require to determine the compliance status of the facility; and
(vi) all compliance certifications shall be submitted to the department and to the administrator and shall contain such other provisions as the department may require to ensure compliance with all applicable requirements.
(f) Operational flexibility.
Each title V facility permit shall contain a provision that states that no permit modifications will be required, under any approved emissions trading, economic incentives, marketable permits, or other similar programs or processes for changes that are provided for in the permit.
(1) Alternate operating scenarios. The owner or operator of the major facility may propose a range of operating conditions that will allow flexibility to operate under more than one operating scenario. Upon issuance of the permit, operation under each proposed alternate operating scenario is authorized without requiring a permit modification. The owner or operator must track and report the scenarios that the major facility operates under according to the requirements of this section. The facility owner or operator must record the alternate operating scenarios in a log at the facility and note any contemporaneous changes from one operating scenario to another. The alternate operating scenarios shall be specified by terms and conditions stated in the permit and shall not contravene any applicable requirement. Alternative operating scenarios may include, but are not limited to:
(i) specifying, as maximum permissible operating conditions, alternative operational scenarios that can be expected to occur during the term of the permit;
(ii) the specification of the maximum permissible emission rate as the enforceable limit unless the operational capacity of the emission source or emission unit is limited as a result of applicable or other requirements;
(iii) the aggregation of emissions from emission units to be detailed under an approved operational flexibility plan, describing the manner in which emissions may be varied in quantity and nature among such emission units. Applications must describe the location and characteristics of emission units involved, and the corresponding emissions; and
(iv) other basis for the facilitation of operational flexibility not in violation of Federal or State law or regulation as approved by the department and the administrator.
(2) Protocol. In the operational flexibility plan the owner or operator may propose to incorporate a protocol component by which the permittee will evaluate proposed changes for compliance with applicable requirements. Compliance with an approved protocol shall serve as compliance with Part 212 of this Title except that it shall not undo previous section 212.10 RACT determinations or otherwise absolve the permittee from section 212.10 RACT compliance obligations. The protocol shall include provisions for notifying the department of changes. Detail must be sufficient to allow for the assessment of control requirements, to determine compliance with applicable requirements and to maintain the department's source inventory. Changes made pursuant to an approved protocol are not subject to the provisions of section 201-6.6 of this Subpart.
(3) Emissions trading under the SIP without requiring a permit modification. Owners or operators of title V facilities may trade increases and decreases in emissions in the permitted facilities, where the applicable State implementation plan provides for such emissions trades and the changes do not exceed the emissions allowable under the permit, without requiring a permit revision. Notice of such trade must be given to the department and the administrator seven days prior to making the trade. This provision is available in those cases where the permit does not specifically provide for such emissions trading. Emission trading under this provision does not require a permit revision as long as changes are not modifications under any provision of title I of the act.
(i) The seven day written notification required above shall include such information as may be required by the provision in the applicable implementation plan authorizing the emissions trade, including at a minimum, when the proposed change will occur, a description of each such change, any change in emissions, the permit requirements with which the facility will comply using the emissions trading provisions of the applicable implementation plan, and the pollutants emitted subject to the emissions trade. The notice shall also refer to the provisions with which the facility will comply in the applicable implementation plan and that provide for the emissions trade.
(ii) Compliance with the permit requirements that the facility will meet in conducting the emissions trade shall be determined according to requirements of the applicable implementation plan authorizing the emissions trade.
(iii) The permit shield described in section 201-6.5 of this Subpart shall not extend to terms and conditions that allow such increases and decreases in emissions.
(4) Facility owners or operators may request that the department issue permits containing terms and conditions, including all terms required under this Subpart, to determine compliance, allowing for the trading of emissions increases and decreases in the permitted facility solely for the purpose of complying with a federally-enforceable emissions cap that is established in the permit independent of otherwise applicable requirements. Changes under this provision within a permitted facility may be allowed without requiring a permit revision, if the changes are not modifications under any provision of title I of the act and the changes do not exceed the emissions allowable under the permit (whether expressed therein as a rate of emissions or in terms of total emissions). The permit applicant shall include, in the application, proposed replicable procedures and permit terms that ensure the emissions trades are quantifiable and enforceable. The department shall not include in the emissions trading provisions any emission units for which emissions are not quantifiable or for which there are no replicable procedures to determine the compliance of the trade. Trading of emissions between contiguous facilities with more than one title V facility permit and owned or operated by the same facility owner or operator is permitted according to a procedure approved in the permits. The permit(s) shall also require compliance with all applicable requirements.
(i) For emissions trading pursuant to this paragraph, seven day written advance notification shall be provided to the administrator and to the department, and shall state when the change will occur and shall describe the changes in emissions that will result and how these increases and decreases in emissions will comply with the terms and conditions of the permit.
(ii) The permit shield described in this section shall extend to terms and conditions that allow such increases and decreases in emissions.
(5) For emissions trading under this section, the owner or operator of the permitted facility, the department and the administrator shall attach the seven day advance notice of each trade to their copy of the relevant permit.
(6) No permit revision will be required for operating changes that contravene an express permit term, provided that such changes would not violate applicable requirements as defined under this Part or contravene federally enforceable monitoring (including test methods), recordkeeping, reporting, or compliance certification permit terms and conditions. Such changes may be made without requiring a permit revision, if the changes are not modifications under any provision of title I of the act and the changes do not exceed the emissions allowable under the permit (whether expressed therein as a rate of emissions or in terms of total emissions) provided that the facility provides the administrator and the department with written notification as required below in advance of the proposed changes within a minimum of seven days. The facility owner or operator, and the department shall attach each such notice to their copy of the relevant permit.
(i) For each such change, the written notification required above shall include a brief description of the change within the permitted facility, the date on which the change will occur, any change in emissions, and any permit term or condition that is no longer applicable as a result of the change.
(ii) The permit shield described in section 201-6.4 of this Subpart shall not apply to any change made pursuant to this paragraph.
(g) Permit shield.
(1) Except as otherwise provided in this Subpart, the department shall include a provision in the title V permit stating that compliance with the conditions of the permit shall be deemed compliance with any applicable requirements as of the date of permit issuance. This permit shield applies provided the applicable requirements are included and are specifically identified in the permit, or the department, in acting on the permit application or revision, determines in writing that other requirements specifically identified are not applicable to the major facility, and the permit includes the determination or a concise summary thereof.
(2) Nothing herein shall preclude the department from revising or revoking the permit pursuant to Part 621 of this Title, or from exercising its summary abatement authority, or alter or affect the following:
(i) the ability of the department to seek to bring suit on behalf of the State of New York, or the administrator to seek to bring suit on behalf of the United States, to immediately restrain any person causing or contributing to pollution presenting an imminent and substantial endangerment to public health, welfare or the environment to stop the emission of air pollutants causing or contributing to such pollution;
(ii) the liability of an owner or operator of a title V facility for any violation of applicable requirements prior to or at the time of permit issuance;
(iii) the applicable requirements of title IV of the act; or
(iv) the ability of the administrator to obtain information from a facility owner or operator concerning the ability to enter, inspect and monitor the facility.
(h) Term of permits.
The following time periods shall apply to the term of title V facility permits:
(1) Periods of up to five years for title V facility permits, and general permits for facilities subject to this Subpart.
(2) A fixed term of five years for “affected sources.” Title V permits for “affected sources” will be issued in such a manner as to eliminate inconsistencies between the expiration of the title V permit and the effective dates of applicable requirements under title IV of the act.
(i) Reopening for cause.
(1) A title V permit shall be reopened and revised under any of the following circumstances:
(i) When additional applicable requirements under the act become applicable to a title V facility with a remaining permit term of three or more years, a reopening shall be completed not later than 18 months after promulgation of the applicable requirement. No such reopening is required if the effective date of the requirement is later than the date on which the permit is due to expire, unless the original permit or any of its terms and conditions has been extended by the department pursuant to the provisions of section 201-6.6 of this Subpart.
(ii) The department or the administrator determines that the permit contains a material mistake or that inaccurate statements were made in establishing the emissions standards or other terms or conditions of the permit.
(iii) The department or the administrator determines that the title V permit must be revised or reopened to assure compliance with applicable requirements.
(iv) Additional requirements (including excess emissions requirements) become applicable to an “affected source” under the Acid Rain Program. Upon approval by the administrator, excess emissions offset plans shall be deemed to be incorporated into the permit.
(2) Proceedings to reopen and issue a title V facility permit shall be required to follow the same procedures as apply to initial permit issuance but shall affect only those parts of the permit for which cause to reopen exists.
(3) Reopenings shall not be initiated before a notice of such intent is provided to the facility by the department at least 30 days in advance of the date that the permit is to be reopened, except that the department may provide a shorter time period in the case of an emergency.
6 CRR-NY 201-6.4
Current through December 31, 2020
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