Subpart 201-1: General Provisions

(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, United States Code, § 7661[b]))

[Filed 6/7/96. 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.

201-1.1 Purpose and applicability
201-1.2 Unpermitted emissions sources
201-1.3 Change in ownership
201-1.4 Unavoidable noncompliance and violations
201-1.5 Emergency defense
201-1.6 Public participation
201-1.7 Recycling and salvage
201-1.8 Prohibition of reintroduction of collected contaminants to the air
201-1.9 Delegation of program
201-1.10 Public access to recordkeeping

§201-1.1 Purpose and applicability

(a) Purpose. The purpose of this Part is to require owners and/or operators of air contamination sources to obtain a permit or registration certificate from the department for the operation of such sources.

(b) Applicability. This Part applies throughout New York State. Unless specifically exempted pursuant to Subpart 201-3 of this Part, owners and/or operators of air contamination sources must comply with this Part. Owners and/or operators of major stationary sources subject to Subpart 201-6 of this Part must obtain a Title V facility permit. Owners and/or operators of other emission sources must either register, pursuant to Subpart 201-4 of this Part, or obtain a State facility permit pursuant to Subpart 201-5 of this Part. Owners and/or operators of emission sources subject to applicable requirements, or the requirement to obtain a Title V facility permit, may request limitations on such source's potential to emit regulated air pollutants in accordance with Subpart 201-7 of this Part, in order to avoid such requirements.

§201-1.2 Unpermitted emissions sources

If an existing emission source was subject to the permitting requirements of Part 201 of this Title at the time of construction or modification, and the owner and/or operator failed to apply for a permit for such emission source then the following provisions apply:

(a) The owner and/or operator must apply for a permit for such emission source or register the facility in accordance with the provisions of this Part.

(b) The emission source or facility is subject to all regulations that were applicable to it at the time of construction or modification and any subsequent requirements applicable to existing sources or facilities.

§201-1.3 Change in ownership

A title V facility permit, State facility permit, general permit or registration certificate is valid only for the emission unit(s), owner and/or operator, facility, mode of operation and special conditions stated in the application, permit or registration. The owner and/or operator can transfer the permit or registration certificate to a new owner and/or operator if the mode of operation and emissions do not change. Permit transfers are subject to the procedures established under Part 621 of this Title.

§201-1.4 Unavoidable noncompliance and violations

At the discretion of the commissioner, a violation of any applicable emission standard for necessary scheduled equipment maintenance, start-up/shutdown conditions and malfunctions or upsets may be excused if such violations are unavoidable. The following actions and recordkeeping and reporting requirements must be adhered to in such circumstances.

(a) The facility owner and/or operator shall compile and maintain records of all equipment maintenance or start-up/shutdown activities when they can be expected to result in an exceedance of any applicable emission standard, and shall submit a report of such activities to the commissioner's representative when requested to do so in writing or when so required by a condition of a permit or certificate issued for the corresponding air contamination source. Such reports shall describe why the violation was unavoidable and shall include the time, frequency and duration of the maintenance and/or start-up/shutdown activities and the identification of air contaminants, and the estimated emission rates. If a facility owner and/or operator is subject to continuous stack monitoring and quarterly reporting requirements, he need not submit reports for equipment maintenance or start-up/shutdown for the facility to the commissioner's representative.

(b) In the event that emissions of air contaminants in excess of any emission standard in this Subchapter occur due to a malfunction, the facility owner and/or operator shall report such malfunction by telephone to the commissioner's representative as soon as possible during normal working hours, but in any event not later than two working days after becoming aware that the malfunction occurred. Within 30 days thereafter, when requested in writing by the commissioner's representative, the facility owner and/or operator shall submit a written report to the commissioner's representative describing the malfunction, the corrective action taken, identification of air contaminants, and an estimate of the emission rates.

(c) The department may also require the owner and/or operator to include in reports described under subdivisions (a) and (b) of this section an estimate of the maximum ground level concentration of each air contaminant emitted and the effect of such emissions depending on the deviation of the malfunction and the air contaminants emitted.

(d) In the event of maintenance, start-up/shutdown or malfunction conditions which result in emissions exceeding any applicable emission standard, the facility owner and/or operator shall take appropriate action to prevent emissions, which will result in contravention of any applicable ambient air quality standard. Reasonably available control technology, as determined by the commissioner, shall be applied during any maintenance, start-up/shutdown or malfunction condition subject to this subdivision.

§201-1.5 Emergency defense

An emergency constitutes an affirmative defense to an action brought for noncompliance with emission limitations or permit conditions for all facilities in New York State.

(a) The affirmative defense of emergency shall be demonstrated through properly signed, contemporaneous operating logs, or other relevant evidence that:

(1) an emergency occurred and that the facility owner and/or operator can identify the cause(s) of the emergency;

(2) the equipment at the permitted facility causing the emergency was at the time being properly operated;

(3) during the period of the emergency the facility owner and/or operator took all reasonable steps to minimize levels of emissions that exceeded the emission standards, or other requirements in the permit; and

(4) the facility owner and/or operator notified the department within two working days after the event occurred. This notice must contain a description of the emergency, any steps taken to mitigate emissions, and corrective actions taken.

(b) In any enforcement proceeding, the facility owner and/or operator seeking to establish the occurrence of an emergency has the burden of proof.

§201-1.6 Public participation

Local and Federal government, affected State and public participation in permit proceedings will be provided for in accordance with procedures established in Part 621, Uniform Procedures, of this Title unless otherwise provided for in this Part.

§201-1.7 Recycling and salvage

Where practical, any person who owns or operates an air contamination source shall recycle or salvage air contaminants collected in an air cleaning device according to the requirements of this Title.

§201-1.8 Prohibition of reintroduction of collected contaminants to the air

No person shall unnecessarily remove, handle, or cause to be handled, collected air contaminants from an air cleaning device for recycling, salvage or disposal in a manner that would reintroduce them to the outdoor atmosphere.

§201-1.9 Delegation of program

(a) The department may delegate permitting and/or enforcement of this Part and other Parts of this Title to a city or county. In order for the city or county to qualify for delegation, the department must:

(1) determine that the city or county has:

(i) enacted local laws, ordinances and regulations consistent with the relevant requirements of this Title;

(ii) the staff resources and expertise necessary to implement the program to be delegated; and

(2) obtain any approval necessary for such delegation from the administrator;

(3) publish notice of approval in the Environmental Notice Bulletin, which approval is in effect upon the date of such publication.

(b) The department shall withdraw delegation when a city or county program no longer complies with the requirements of this Title, and the city or county fails to take corrective action within 30 days of being so advised by the department.

(1) Such circumstances for the department to withdraw delegation include the following:

(i) failure of the city or county to promulgate new laws, ordinances and regulations as necessary to be consistent with the relevant requirements of this Title;

(ii) the city or county fails to exercise control over activities required to be regulated pursuant to delegation, including failure to issue permits;

(iii)repeated issuance of permits that do not comply with the relevant requirements of this Title;

(iv) failure to comply with the public participation requirements of this Title;

(v) failure to act on violations of permits or other delegated program requirements;

(vi) failure to seek adequate enforcement penalties or to collect administrative fines when imposed;

(vii) failure to inspect and monitor activities subject to delegation.

(2) Notice of the department's withdrawal of delegation shall be printed in the Environmental Notice Bulletin and the delegation will cease to be in effect 30 days following publication of such notice.

§201-1.10 Public access to recordkeeping

(a) Where emission source owners and/or operators keep records pursuant to compliance with the operational flexibility requirements of section 201-5.4(b)(1) of this Part, and/or the emission capping requirements of sections 201-7.2(d), 201-7.3 (f), (g), (h)(5), (i) and (j) of this Part, the department will make such records available to the public upon request in accordance with Part 616 - Public Access to Records of this Title. Emission source owners and/or operators must submit the records required to comply with the request within 60 working days of written notification by the department of receipt of the request.

(b) For facilities subject to Subpart 201-6 of this Part, the department will make available to the public any permit application, compliance plan, permit, and monitoring and compliance certification report pursuant to section 503(e) of the act, except for information entitled to confidential treatment pursuant to 6 NYCRR Part 616 - Public Access to Records and section 114(c) of the act.