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Subpart 201-6: Title V Facility Permits

(Statutory authority: Environmental Conservation Law, §§ 1-0101, 3-0301, 3-0303, 19-0103, 19-0105, 19-0107, 19-0301, 19-0302, 19-0303,19-0305, 19-0306, 19-0311, 70-0109, 71-2103, and 71-2105; 40 CFR part 70; United States Code, § 7661[b], Federal Clean Air Act, §§ 160-169, 171-193 [42 U.S.C. 7470-7479; 7501-7515])

[Filed 12/19/01. Effective 30 days after filing. Adoption filed 1/23/13. Effective 30 days after filing.]

For administrative information about this posting, contact: Division of Air Resources. The Bureau of Stationary Sources at (518) 402-8403 is the contact for technical questions pertaining to this rule.

Contents:

Sec.

§201-6.1 Applicability

(a) Except as otherwise set forth herein, no person shall operate any of the following facilities without first obtaining a title V permit.

(1) Any major facility as defined under Subpart 201-2 of this Part.

(2) Any facility specifically required to obtain a title V permit by being subject to a standard, limitation, or other requirement under the Federal New Source Performance Standards (NSPS) in 40 CFR part 60, et seq.

(3) Any facility, including an area source, subject to a standard or other requirement regulating hazardous air pollutants under federal National Emission Standards for Hazardous Air Pollutants (NESHAP) in 40 CFR parts 61 and 63 that is specifically required to obtain a title V permit by the administrator or the act. A facility is not required to obtain a title V permit solely because it is subject to regulations or requirements promulgated for the control of accidental releases of substances regulated under section 112(r) of the act.

(4) Any affected source as defined in Subpart 201-2 of this Part.

(5) Any facility in a category designated by the administrator and added by the department pursuant to rulemaking.

(b) The following facilities are deferred or exempt from the requirement to obtain a title V facility permit under this section but may be subject to the requirements of Subparts 201-4 or 201-5 of this Part.

(1) Facilities that are not major facilities, affected sources, solid waste incineration units required to obtain a permit pursuant to section 129 of the act, and facilities subject to a Federal New Source Performance Standard or National Emission Standard for Hazardous Air Pollutants promulgated prior to July 21, 1992 are exempted from the requirement to obtain a title V facility permit under this section.

(2) The administrator will determine whether to exempt or defer any or all non-major facilities subject to a Federal New Source Performance Standard or National Emission Standard for Hazardous Air Pollutants promulgated after July 21, 1992 from the requirement to obtain a title V facility permit at the time a new standard is promulgated. Facilities that qualify for permit deferrals shall not be required to apply for a title V facility permit until the administrator promulgates standards specifying a due date for applications and these standards are adopted by the department pursuant to rulemaking.

(3) The following facility categories are exempt from the obligation to obtain a title V facility permit under this section:

(i) all facilities that would be required to obtain a permit solely because they are subject to 40 CFR part 60, subpart AAA - Standards of Performance for New Residential Wood Heaters;

(ii) all facilities that would be required to obtain a title V facility permit solely because they are subject to a standard listed in Subpart 201-6.7 of this Part;

(iii) all facilities that would be required to obtain a permit under this section solely because they are subject to 40 CFR part 61, subpart M - National Emission Standard for Hazardous Air Pollutants for Asbestos, section 61.145, Standards for Demolition and Renovation; and

(iv) facilities that have accepted federally enforceable emission caps pursuant to Subparts 201-4 or 201-7 of this Part that restrict a facility's emissions to a level that is below the applicability threshold for having to obtain a title V facility permit.

(c) Any facility not required to obtain a permit pursuant to subdivision (a) of this section may opt to apply for a title V facility permit.

(d) A single title V facility permit will be issued for a facility with multiple emission sources, except upon request from an owner or operator for more than one permit. In no case shall the determination of whether a facility is subject to the requirement to obtain an operating permit according to this section be affected by the application for, or issuance of, more than one title V facility permit.

§201-6.2 Permit Applications.

(a) Timely application. The owner or operator of a facility subject to this Subpart shall submit a complete application, as defined in Part 621 of this Title and this Subpart, for initial issuance of a title V permit, or renewal, in accordance with the timeframes established under paragraphs (1) through (6) of this subdivision:

(1) Prior to the commencement of construction of a new facility subject to permitting under this Subpart.

(2) Prior to the commencement of operation of new emission unit(s) or modified emission units at an existing facility that make the facility subject to title V permitting. The owner or operator of a facility subject to this provision may choose to apply for a State facility permit pursuant to section 201-5.2 of this Part. Upon issuance, that permit shall authorize both construction and operation of the new or modified emission units until a title V permit is issued in accordance with this Subpart.

(3) Prior to the commencement of construction of a new emission unit at an existing title V facility. The owner or operator of an existing title V facility, which is being modified by the addition of a new emission unit comprised solely of new emission sources, may apply for a State facility permit pursuant to section 201-5.2 of this Part that will authorize construction and operation of the new emission unit upon issuance. A title V permit modification is required within one year of the commencement of operation of the new emission unit.

(4) At least 180 days, but not more than eighteen months, prior to the date of permit expiration for permit renewal purposes.

(5) For existing facilities required to meet the requirements under section 112(g) of the act, prior to construction.

(6) For existing facilities with any emission source designated by EPA as requiring a title V facility permit, within 12 months after the effective date of EPA's designation, or by a later deadline specified by EPA in its designation.

(b) Completeness determinations.

(1) Applications submitted for title V facility permits must be reviewed for completeness by the department in accordance with subdivision (d) of this section and Part 621 of this Title.

(2) Any applicant who fails to submit any relevant facts or who has submitted incorrect information in a permit application shall, upon becoming aware of such failure or incorrect submittal, promptly submit such supplementary facts or corrected information. In addition, the applicant shall provide additional information as necessary to address any requirements that become applicable to the facility after the date it filed a complete application but prior to release of a draft permit.

(3) If a facility owner or operator submits a timely and complete application for title V permit issuance and/or renewal, the failure to have a title V facility permit is not a violation of this Part because the department has not taken final action on the permit application, except as noted in this section. This protection shall cease to apply if, subsequent to the completeness determination, the applicant fails to submit, by a reasonable deadline specified in writing by the department, any additional information identified as being needed to review and act on the application. The department will reinstate this protection upon receipt of the additional information in the event that an applicant is unable to provide it within the specified timeframe.

(c) Final decisions. The department shall act on title V facility permit applications in accordance with the timeframes and procedures established in Part 621 of this Title. Failure to act on new title V facility permit applications within 18 months of receipt of a complete application shall be grounds for judicial review in State court.

(d) Application Content. All title V facility permit applications submitted to the department shall be signed by a responsible official and provided in a format acceptable to the department. Title V facility permit applications must include the following information at a minimum:

(1) Identifying information, including company name and address (or facility name and address if different from the company name), owner's name and representative, and telephone number and names of the facility manager/contact.

(2) A description of the facility's processes and products (by Standard Industrial Classification or North American Industry Classification System code)) including any associated with each alternate operating scenario identified by the owner or operator.

(3) The following emissions-related information:

(i) All emissions of pollutants for which the facility is major, all emissions of regulated air pollutants, and all emissions of persistent, bioaccumulative and toxic compounds listed in Table 1 of Subpart 201-9 of this Part. The permit application shall describe all emissions of regulated air pollutants emitted from any emissions unit, emission point and process, except where such units are listed as exempt or trivial under Subpart 201-3 of this Part. The applicant shall submit additional information related to the emissions of regulated air pollutants sufficient to verify which Federal requirements are applicable to the facility.

(ii) Fugitive emissions from a major facility shall be included in the permit application in the same manner as stack emissions, regardless of whether the source category in question is included in the definition of major facility. Source categories that must include fugitive emissions in the applicability determination for title V facility permits are identified within the definition of major facility.

(iii) Identification and description of all emission units described in the above paragraphs in sufficient detail to establish the applicability of Federal requirements.

(iv) Emissions rates of all regulated air pollutants in such terms as are necessary to establish compliance consistent with the applicable standard reference test method.

(v) The following information to the extent it is needed to determine or regulate emissions in accordance with applicable requirements: Fuel types and their usage, raw materials, production rates, and operating schedules.

(vi) Identification and description of air pollution control equipment and compliance monitoring devices or activities required under the Clean Air Act.

(vii) Enforceable limitations on facility operation restricting emissions, including federally enforceable emission caps, or any work practice standards, where applicable, for all regulated air pollutants.

(viii) Other information required by any applicable requirement.

(ix) Sample or actual calculations on which the information in subparagraphs (i) through (viii) of this paragraph is based.

(x) A process flow diagram detailing which process emissions and emission sources exhaust from which emission point.

(xi) A description of each emission point associated with each emission unit that includes the following parameters: stack height (ft), stack height above building (ft), inside stack diameter (in), exit temperature (degrees F), exit velocity (ft/sec), exit flow (acfm), distance from the emission point to the property line (ft) and NYTM coordinates.

(4) The following air pollution control requirements:

(i) Citation and description of all applicable requirements.

(ii) Description of or reference to any applicable test method for determining compliance with each applicable requirement.

(5) Other specific information that may be necessary to implement and enforce other requirements of the act or to determine the applicability of such requirements.

(6) An explanation of any proposed exemptions from otherwise applicable Federal requirements and a description of any proposed exempt activities and/or emission units.

(7) Information necessary to define operational flexibility proposed in accordance with section 201-6.4 of this Subpart.

(8) A compliance plan for all emission source activities subject to applicable requirements that contains the following:

(i) A description of the compliance status of the emission source activity with respect to all applicable requirements.

(ii) A description of applicable requirements as follows:

(a) For applicable requirements with which the facility is in compliance, a statement that the facility will continue to comply with such requirements.

(b) For applicable requirements that will become effective during the permit term, a statement that the facility will meet such requirements on a timely basis.

(c) For applicable requirements for which the facility is not in compliance at the time of permit issuance, a narrative description of how the facility will achieve compliance with such requirements.

(iii) A compliance schedule as follows:

(a) For applicable requirements that will become effective during the permit term, a statement that the facility will meet such requirements on a timely basis, consistent with section 201-6.4(a)(1)(i)-(iii) of this Subpart. A statement that the facility will meet in a timely manner applicable requirements that become effective during the permit term shall satisfy this provision, unless a more detailed schedule is expressly required by the applicable requirement.

(b) A schedule of compliance for facilities that are not in compliance with all applicable requirements at the time of permit issuance. Such a schedule shall include a schedule of remedial measures, including an enforceable sequence of actions with milestones, leading to compliance with any applicable requirements for which the facility will be in noncompliance at the time of permit issuance. This compliance schedule shall resemble and be at least as stringent as that contained in any judicial consent decree or administrative order to which the source is subject. Any such schedule of compliance shall be supplemental to, and shall not sanction noncompliance with, the applicable requirements or standards on which it is based.

(iv) A schedule for submission of certified progress reports no less frequently than every six months for facilities required to have a schedule of compliance to remedy a violation.

(v) The compliance plan content requirements specified in this paragraph shall apply and be included in the acid rain portion of a compliance plan, as defined in 40 CFR part 72, for an "affected source", except as specifically superseded by regulations promulgated under the acid rain program with regard to the schedule and method(s) the "affected source" will use to achieve compliance with the acid rain emissions limitations.

(9) Requirements for compliance certification, including the following:

(i) A certification of compliance with all applicable requirements signed by a responsible official consistent with this section.

(ii) An identification of methods used for determining compliance, including a description of monitoring, recordkeeping, and reporting requirements and test methods.

(iii) A schedule for submission of compliance certifications during the permit term, to be submitted no less frequently than annually, or more frequently if specified by the underlying applicable requirement or by the department in the permit.

(iv) A statement indicating the facility's compliance status with applicable compliance assurance monitoring and compliance certification requirements of the act.

(11) The use of nationally standardized forms for acid rain portions of permit applications and compliance plans, as required by title IV of the act.

(12) Certification by a responsible official. Any application form, report, or compliance certification submitted pursuant to the Federal title V permitting requirements under this Subpart shall contain certification of truth, accuracy, and completeness by a responsible official. This certification and any other certification required under this Subpart shall state that, based on information and belief formed after reasonable inquiry, the statements and information in the document are true, accurate, and complete.

(e) Confidentiality. A responsible official can request that certain information in a title V facility permit application be kept from public disclosure if it can be demonstrated to the department that the information is a trade secret. Such requests must be made in accordance with Part 616 of this Title. Information submitted to the department pursuant to Part 616 of this Title may be submitted directly to the administrator by the facility owner to determine if it is confidential pursuant to 40 CFR part 2.

(f) Applications for title V facility permit modifications and revisions generally need only supply information related to the modification or revision, provided such information includes a complete set of data on any emission units affected by the modification or revision and any facility level information required in forms developed by the department to properly ascertain the nature and extent of a modification.

(g) The facility owner or operator may not omit information from an application that is needed to determine the applicability of, or to impose, any applicable requirement, or to evaluate the permit fee amount required by the department.

(h) The facility owner or operator may also elect to accept an emission cap in accordance with Subparts 201-4 and 201-7 of this Part in order to avoid the title V facility permit requirements of this Subpart.

§201-6.3 Application and permit review by EPA and affected states

(a) Transmission of information to the administrator.

(1) The department shall provide the administrator a copy of each title V permit application, including any application for permit modification, each proposed permit, and each final title V facility permit. Accessibility to the administrator of the application, proposed permit, or final permit on the department's computer system shall be considered equivalent to the submission of these documents to the administrator by the department. The applicant may be required by the department to provide a copy of the permit application (including the compliance plan) directly to the administrator. To the extent practicable, the preceding information shall be provided in computer-readable format compatible with the EPA national database management system.

(2) The administrator may waive the requirements of paragraph (1) of this subdivision and paragraph (b)(1) of this section for any category of emission sources (including any class, type, or size within such category) other than major facilities according to the following:

(i) by regulation for a category of emission sources nationwide; or

(ii) at the time of approval of the State program for a category of facilities covered by an individual permitting program.

(3) The department shall keep such records for five years and submit to the administrator such information as the administrator may reasonably require to ascertain whether the State program complies with the requirements of the act or of 40 CFR part 70.

(b) Review by affected states.

(1) The department shall give notice of each draft permit to any affected state on or before the time that the department provides this notice to the public under the requirements of this Part or Part 621 of this Title.

(2) The department, as part of the submittal of the proposed permit to the administrator (or as soon as possible after the submittal for minor permit modification procedures allowed under section 201-6.6 of this Subpart), shall notify the administrator and affected states in writing of any refusal by the department to accept all recommendations for the proposed permit that the affected state submitted during the public or affected state review period. The notice shall include the department's reasons for not accepting any such recommendation. The department is not required to accept recommendations that are not based on applicable requirements or the requirements of this Part.

(3) Within five working days of receipt of a complete permit modification application, the department shall meet its obligation to notify the administrator and affected states of the requested permit modification. The department promptly shall send any required notice to the administrator.

(c) EPA objection.

(1) The administrator may object to the issuance of any proposed permit determined by the administrator not to be in compliance with applicable requirements or requirements under this Part. No permit for which an application must be transmitted to the administrator shall be issued if the administrator objects to its issuance in writing within 45 days of receipt of the proposed permit and all necessary supporting information.

(2) Any EPA objection shall include a statement of the administrator's reasons for objection and a description of the terms and conditions that the permit must include to respond to the objections. The administrator will provide the permit applicant a copy of the objection.

(3) Failure of the department to do any of the following also shall constitute grounds for an objection:

(i) comply with subdivisions (a) or (b) of this section;

(ii) submit any information necessary to review adequately the proposed permit; or

(iii) process the permit under the procedures approved to meet the public participation requirements of Part 621 of this Title except for minor permit modifications.

(4) If the department fails to revise and submit a proposed permit in response to an objection within 90 days of the objection, the administrator may issue or deny the permit in accordance with the requirements of the Federal program promulgated under title V of the act.

(d) Public petitions to the administrator.

If the administrator does not object in writing under subdivision (c) of this section, any person may petition the administrator within 60 days after the expiration of the administrator's 45-day review period to make such objection. Any such petition shall be based only on objections to the permit that were raised with reasonable specificity during the public comment period, unless the petitioner demonstrates that it was impracticable to raise such objections within such period, or unless the grounds for such objection arose after such period. If the administrator objects to the permit as a result of a petition filed under this paragraph, the department shall not issue the permit until EPA's objection has been resolved, except that a petition for review does not stay the effectiveness of a permit or its requirements if the permit was issued after the end of the 45-day review period and prior to an EPA objection. If the department has issued a permit prior to receipt of an EPA objection under this paragraph, the administrator will modify, terminate, or revoke such permit, and shall do so consistent with the procedures in section 201-6.6(e) of this Subpart, except in unusual circumstances, and the department may thereafter issue only a revised permit that satisfies EPA's objection. In any case, the facility owner or operator will not be in violation of the requirement to have submitted a timely and complete application.

§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[3] of the act), or technology required to meet a lowest achievable emission rate (as defined in section 171[3] 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.

§201-6.5 Special provisions

(a) State enforceable requirements.

(1) The department shall specifically designate as not being federally enforceable, any terms and conditions included in the permit that are not required under the act or under any of its applicable requirements. Terms and conditions so designated are not subject to the requirements of section 201-6.3 of this Subpart.

(b) Additional permit conditions for facilities subject to the Acid Rain Program of title IV of the act. (1) Where an applicable requirement of the act is more stringent than regulations promulgated under title IV of the act, both requirements shall be incorporated into the permit, and shall be enforceable by the department and the administrator.

(2) Emissions exceeding any allowances that the facility owner/operator lawfully holds under title IV of the act or the regulations promulgated thereunder shall be prohibited by the permit. However, the facility owner or operator is not required to cover its emissions at all times. Rather, the facility owner or operator need only have sufficient sulfur dioxide allowances to cover emissions at the end of the true-up period in each year.

(3) No permit revision shall be required for increases in emissions that are authorized by allowances acquired pursuant to title IV, provided that such increases do not require a permit revision under any other applicable requirement.

(4) No limit shall be placed on the number of allowances held by the facility. The facility owner or operator may not, however, use allowances as a defense to noncompliance with any other applicable requirement.

(5) Any allowance shall be accounted for according to the procedures established in regulations promulgated under the acid rain provisions of title IV.

(c) Emergency defense provision. Each title V facility permit shall contain a condition that requires reporting of noncompliance due to an emergency. In the event that emissions of contaminants in excess of any emission standard of this Chapter occur due to an emergency (as defined in this Part), the facility owner or operator shall report such event to the department's representative as soon as possible during normal working hours, but in any case not later than two working days after the event occurs. The report must describe the emergency, any steps taken to mitigate emissions, and the corrective actions taken. Facilities desiring an affirmative defense for non-compliance with any applicable requirement due to an emergency shall follow the requirements established under the general provisions in this Part.

§201-6.6 Permit renewal and modification

(a) Expiration and renewal. The following procedures shall apply when title V facility permits are renewed or expire:

(1) Permits that are being renewed are subject to the same procedural and review requirements, including those for public participation and affected State and EPA review, that apply to initial permit issuance. Renewal applications must include any revisions or modifications enacted during the previous permit term.

(2) Permit expiration terminates the major facility's right to operate unless a timely and complete renewal application has been submitted consistent with section 201-6.2(a) of this Subpart.

(3) If the department fails to act in a timely way in the renewal of a permit, the administrator may invoke the authority under section 505(e) of the act to terminate, modify or revoke and reissue a permit.

(4) The department shall take final action upon permit renewal within 18 months of receipt of a complete application. If the department fails to take final action on a renewal application within 18 months of the receipt of a complete application, such failure to act shall be treated as a final agency action solely for the purposes of judicial review for failure to take final action.

(5) All the terms and conditions of a permit shall be automatically continued pending final determination by the department on a request for permit renewal, provided the facility owner or operator has made a timely and complete application and paid the required fees.

(b) Administrative permit amendments.

(1) Administrative amendments to title V facility permits include the following changes:

(i) correction of typographical errors;

(ii) identification of a change in the name, address, or phone number of any person identified in the permit, or a similar minor administrative change at the source;

(iii)those requiring more frequent monitoring or reporting by the permittee;

(iv) those allowing for a change in ownership or operational control of a facility where the department determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittee has been submitted to the department; or

(v) incorporation into the permit of the requirements from a State facility permit issued by the department provided that public participation pursuant to Part 621 of this Title, and the EPA and affected State review process for the state facility permit were equivalent to the review process and compliance requirements necessary for issuance of a title V facility permit.

(2) the request for an administrative permit amendment shall be reviewed and acted upon by the department in accordance with the time frames and procedures established under section 621.13 of this Title and subparagraph (i) of this paragraph. Administrative permit amendments for the purposes of the acid rain portion of the permit shall be governed by regulations promulgated under title IV of the act. The department may incorporate such changes into the permit without providing notice to the public or affected states provided that it designates any such permit revisions as having been made pursuant to this paragraph.

(i) Within 15 days of receipt of a request for an administrative permit amendment, the department shall take final action on such request, and may incorporate such changes without providing notice to the public or affected states provided that it designates any such permit revisions as having been made pursuant to this section.

(ii) The department shall make a copy of the revised permit available to the administrator.

(iii) The owner or operator of a facility may implement the changes addressed in the request for an administrative amendment after 15 days from receipt of the request by the department.

(3) The department shall, upon taking final action granting a request for an administrative permit amendment, allow coverage by the permit shield in section 201-6.4 of this Subpart. The department shall also allow such coverage for administrative permit amendments made pursuant to subparagraph (1)(v) of this subdivision, provided the state facility permit met the relevant requirements of this Part for significant permit modifications.

(c) Minor permit modifications.

(1) Minor permit modification procedures may be used only for those permit modifications that do not exceed the criteria under subparagraphs (i) through (v) of this paragraph. In no case shall a facility that has been issued multiple permits be allowed to make minor permit modifications which, in the aggregate, would be a significant permit modification if the facility had been issued a single permit, unless such facility complies with all the requirements for a significant modification.

(i) Do not violate any applicable requirement.

(ii) Do not involve significant changes to existing monitoring, reporting, or recordkeeping requirements in the permit and are not otherwise a significant change in the permit.

(iii) Do not require or change a case-by-case determination of a Federal emission limitation or other Federal standard, or a specific determination for portable sources causing adverse ambient impacts, or a visibility or increment analysis.

(iv) Do not seek to establish or change a permit term or condition that the facility has assumed to avoid an applicable requirement to which the emission source would otherwise be subject. Such terms and conditions include:

(a) a federally enforceable emissions cap assumed to avoid classification as a modification under any provision of title I of the act, including Part 231 of this Title; or

(b) an alternative emissions limit approved pursuant to the early reduction program under section 112 of the act.

(v) Are not modifications under any provision of title I of the act resulting in an NSR major modification as defined and regulated under Part 231 of this Title.

(2) Notwithstanding paragraphs (1) and (9) of this subdivision, minor permit modification procedures may be used for permit modifications involving the use of economic incentives, marketable permits, emission trading, and other similar approaches to the extent that such minor permit modification procedures are explicitly provided for in an applicable implementation plan or in applicable requirements promulgated by the administrator.

(3) An application for a minor permit modification shall meet the requirements of section 201-6.2(d) of this Subpart, and shall provide the following information:

(i) a description of the change, the emissions resulting from the change, and any new applicable requirements that will apply if the change occurs;

(ii) certification by a responsible official, consistent with this Subpart, that the proposed modification meets the criteria contained herein for use of minor permit modification procedures and a request that such procedures be used;

(iii) completed forms for use in notifying the administrator and affected states; and

(iv) the major facility's suggested draft permit in a format acceptable to the department.

(4) The department will review and act on applications for minor permit modifications in accordance with timeframes and procedures established for minor projects under Part 621 of this Title. Upon application by an owner or operator for a minor permit modification, the department shall determine whether or not such application is complete within 15 days after receipt of such application and notify the applicant as required under Part 621 of this Title.

(5) The facility may proceed with the requested modification upon receipt of a notice of complete application from the department confirming that the modification is minor. If the department fails to issue such notice, the application shall be deemed complete by default on the 15th day after receipt of the application and the permittee may proceed with the requested modification on the 25th day after the date that the department received the application. After the facility owner or operator makes the change and until the department takes final action, or notifies the permittee that the requested modification does not meet the minor modification criteria, or that EPA objects to the modification requested, the facility must comply with both the applicable requirements governing the change and any proposed permit terms and conditions. During this time period, the facility need not comply with the existing permit terms and conditions it seeks to modify. However, if the facility fails to comply with its proposed permit terms and conditions during this time period, the existing permit terms and conditions it seeks to modify may be enforced against it.

(6) The department shall provide the notice of complete application, or provide an alternate form of notification approved by the administrator, to the administrator and affected states on or before the date that the applicant is notified. Such notification is not required if the modification involves only emission units or permit terms and conditions that are not subject to any applicable requirement.

(7) The department must issue a final decision on a minor modification request not later than 45 days after the date that the application was complete. However, the department may not issue a final permit modification until 45 days have elapsed from the date that the department notified the administrator under paragraph (6) of this subdivision or until the administrator has notified the department that they will not object to issuance of the permit modification, whichever occurs first.

(8) The permit shield described in section 201-6.4 of this Subpart does not extend to minor permit modifications.

(9) The department may process groups of applications for minor permit modifications simultaneously.

(d) Significant permit modifications. Significant permit modifications are those that are not minor permit modifications or administrative permit amendments. Every significant change in existing monitoring permit terms or conditions, and every relaxation of reporting or recordkeeping permit terms or conditions at a facility subject to this Subpart shall be considered significant. An application for permit modification should be submitted by the owner or operator, and shall be subject to the provisions of this Subpart for new applications for a permit.

(e) Reopenings for cause by EPA.

(1) If the administrator finds that cause exists to terminate, modify, or revoke and reissue a permit pursuant to section 201-6.4 of this Subpart, the administrator will notify the department and the permittee of such finding in writing.

(2) The department shall, within 90 days after receipt of such notification, forward to EPA a proposed determination of termination, modification, or revocation and reissuance, as appropriate. The administrator may extend this 90-day period for an additional 90 days if the administrator finds that a new or revised permit application is necessary or that the department must require the permittee to submit additional information.

(3) The administrator will review the proposed determination from the department within 90 days of receipt.

(4) The department shall have 90 days from receipt of an EPA objection to resolve any objection that EPA makes and to terminate, modify, or revoke and reissue the permit in accordance with the administrator's objection.

(5) If the department fails to submit a proposed determination pursuant to paragraph (2) of this subdivision or fails to resolve any objection pursuant to paragraph (4) of this subdivision, the administrator will terminate, modify, or revoke and reissue the permit after taking the following actions:

(i) providing at least 30 days' notice to the permittee in writing of the reasons for any such action. This notice may be given during the procedures in paragraphs (1) through (4) of this subdivision;

(ii) providing the permittee an opportunity for comment on the administrator's proposed action and an opportunity for a hearing.

(f) Surrender of title V facility permits. A source owner or operator may close down operations and surrender title V permit(s) to the department.

§201-6.7 Appendix A-Area Sources Regulated by National Emission Standards for Hazardous Air Pollutants Permanently Exempted from Title V Permitting.

40 CFR 63.320 Subpart M: Perchloroethylene Dry Cleaning Facilities

40 CFR 63.340 Subpart N: Chromium Electroplating

40 CFR 63.360 Subpart O: Ethylene Oxide Commercial Sterilization

40 CFR 63.460 Subpart T: Halogenated Solvent Metal Cleaning