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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, 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 6/7/96. Effective 30 days after filing. Amendment 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.

§201-1.1 Purpose and applicability

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

(b) Applicability. This Part applies throughout New York State. Except as specifically described in Subpart 201-3 of this Part, owners and operators of air contamination sources must comply with this Part. Owners or operators of major stationary sources subject to Subpart 201-6 of this Part must obtain a title V facility permit. Owners 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 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 201-4 or 201-7 of this Part, in order to avoid such applicable requirements. Subpart 201-8 of this Part provides for the issuance of general permits for stationary sources subject to this Part, except for affected sources under the Federal Acid Rain Program, unless otherwise provided in regulations promulgated under title IV of the act.

§201-1.2 Unpermitted emissions sources

(a) Except as otherwise provided by this Part, construction or operation of a new, modified or existing air contamination source without a registration or permit issued pursuant to this Part is prohibited.

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

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

(ii) 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 is valid only for the emission unit(s), owner or operator, facility, mode of operation and permit conditions stated in the application, permit or registration. The owner or operator can transfer the permit or registration to a new owner 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. The transfer of a registration is subject to the procedures set forth in section 201-4.4 of this Part.

§201-1.4 Malfunctions and start-up/shutdown activities.

(a) The facility owner or operator shall take all necessary and appropriate actions to prevent the emission of air pollutants that result in contravention of any applicable emission standard during periods of start-up, shutdown, or malfunction.

(b) The facility owner or operator shall compile and maintain records of all equipment malfunctions, 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 department when requested to do so, or when so required by a condition of a permit issued for the corresponding air contamination source. Such reports shall state whether any violations occurred and, if so, whether they were unavoidable, include the time, frequency and duration of the maintenance and/or start-up/shutdown activities, and an estimate of the emission rates of any air contaminants released. Such records shall be maintained for a period of at least five years and made available for review to department representatives upon request. Facility owners or operators subject to continuous stack monitoring and quarterly reporting requirements need not submit additional reports for equipment maintenance or start-up/shutdown activities for the facility to the department.

(c) 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 or operator shall compile and maintain records of the malfunction and notify the department as soon as possible during normal working hours, but not later than two working days after becoming aware that the malfunction occurred. When requested by the department, the facility owner or operator shall submit a written report to the department describing the malfunction, the corrective action taken, identification of air contaminants, and an estimate of the emission rates.

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

(e) A violation of any applicable emission standard resulting from start-up, shutdown, or malfunction conditions at a permitted or registered facility may not be subject to an enforcement action by the department and/or penalty if the department determines, in its sole discretion, that such a violation was unavoidable. The actions and recordkeeping and reporting requirements listed above must be adhered to in such circumstances.

§201-1.5 Emergency defense

An emergency, as defined in Subpart 201-2 of this Part, constitutes an affirmative defense to penalties sought in an enforcement action brought by the department 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 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 and maintained;

(3) during the period of the emergency the facility owner 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 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 or operator seeking to establish the occurrence of an emergency has the burden of proof.

(c) This provision is in addition to any emergency or upset provision contained in any applicable requirement.

§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, the owner or operator of 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; and

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

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

(3) publish notice of the approved delegation in the Environmental Notice Bulletin. The delegation shall become effective 30 days following the date of publication.

(b) The department shall withdraw delegation when a city or county program no longer complies with the requirements of this Section, 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 sufficient control over activities required to be regulated pursuant to the delegation, including failure to issue permits;

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

(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; and

(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 facility owners or operators keep records pursuant to compliance with the requirements of this Part, the department will make such records available to the public upon request in accordance with Part 616 of this Title. Facility owners 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 Part 616 of this Title or section 114(c) of the act.

§201-1.11 Temporary emission sources.

(a) The owner or operator of a facility operating a temporary emission source is not required to obtain or modify a permit or registration for that source, as otherwise required by this Part, if the following conditions are met:

(1) the owner or operator of the temporary emission source notifies the department of the intent to operate a temporary emission source at least 10 days in advance of such operation;

(2) the emission source is operated in compliance with all applicable requirements and all Parts of this Chapter;

(3) the owner or operator of the facility where the temporary emission source is located maintains records on-site, for a period of at least five years, indicating the dates of operation of each temporary emission source;

(4) total emissions from the emission source do not exceed, or cause an existing permitted or registered facility to exceed, any of the following threshold levels:

(i) the major facility thresholds described in section 201-2.1(b)(21) of this Part;

(ii) an emissions cap established pursuant to Subpart 201-4 or 201-7 of this Part;

(iii) the significant project thresholds described in Part 231 of this Title at an existing major facility; and

(5) the temporary emission source is not an affected source, as defined in section 201-2.1(b)(3) of this Part.

(b) The department may require the owner or operator of a temporary emission source to obtain an air permit or registration for the location at which the source is operated if it determines that the emission source does not or cannot meet the requirements of this section or any other requirements of this Chapter.

§201-1.12 Suspension, reopening, reissuance, modification or revocation of air permits.

(a) The department may suspend, reopen, reissue, modify or revoke a permit in accordance with the procedures and provisions of Part 621 of this Title.

(b) The owner or operator of any air contamination source or air cleaning device shall operate and maintain such source or device in compliance with all applicable requirements, permit conditions, other Parts of this Title and existing laws. Failure of such person to operate and maintain the sources and/or devices shall be sufficient reason for the department to revoke or deny a permit or registration in accordance with the procedures and provisions of Part 621 of this Title.

§201-1.13 Access to regulated facilities.

Department representatives must be granted access, during normal operating hours, to any facility regulated by this Part, including facilities that are not required to obtain a permit or registration pursuant to Subpart 201-3 of this Part, for the purpose of determining compliance with this and any other State and Federal air pollution control requirements, regulations or laws.

§201-1.14 Certificates to operate

The owner or operator of an existing facility operating under a certificate to operate and/or permit to construct is required to apply to the department for a registration or permit, as described in this Part, within 90 days of notification by the department.

§201-1.15 Requirement to commence construction

The existence of a valid permit shall not be construed as authorizing construction if construction is not commenced within 18 months after the date of permit issuance, if construction is discontinued for a period of 18 months or more, or if construction is not completed within a reasonable time as determined by the department. Up to an 18-month extension may be granted by the department upon a showing of good cause in a written request by the facility owner or operator. The department may suspend, modify or revoke the permit or registration pursuant to Part 621 of this Title if construction or modification has not commenced within 18 months of issuance of such permit or registration, or construction has been discontinued for a period of more than 18 months at any point after issuance of such permit or registration.