Air Guide 10: Federal Enforceability of Information on Air Operating Permits
The USEPA described the criteria for "federally enforceable" state operating permit programs in amendments to 40 CFR Parts 51 and 52, 54 FR 27274. The purpose of this document is to outline the procedural requirements and permit conditions to be followed by permit writers to ensure that limitations set forth in an air operating permit will be "federally enforceable." This guidance will be modified pending the adoption of revisions to 6 NYCRR Part 201 which are being made in accordance with requirements set forth in Title V of the Clean Air Act Amendments of 1990 (CAAA) and the corresponding regulation defining the elements of a Title V permit as listed in 40 CFR Part 70.
Table of Contents
- General Criteria
- Specific Requirements for Developing Permit limitations
- Procedural Requirements
Model Public Notices
Attachment A - Existing Source
Attachment B - New Source/Modification
Attachment C - Emission Reduction Credit Certification for Past reductions
Attachment D - Emission Reduction Credit Certification for Future reductions
Attachment E - Illustrative Examples
The "potential to emit" of a stationary source is a critical factor in establishing applicability and compliance with air emission regulations. According to both state and federal Statutes the potential to emit is defined as the maximum capacity of a facility or source to emit any air contaminant under its physical and operational design. Any physical or operational Limitation on the capacity of the facility or source to emit any air contaminant, including air pollution control equipment and/or Restrictions on the hours of operation, or on the type or amount of material combusted, stored, or processed, shall be treated as part of the design only if the limitation is federally enforceable by the Commissioner and the Administrator (of the USEPA).
In many previous circumstances, the potential to emit has been Limited by permit conditions either to maintain compliance with applicable rules or to keep new sources or modifications under the thresholds for PSD or Part 231 (nonattainment review) applicability. With the passage of the CAAA, source owners will now have to comply with an ever greater number of complex regulatory requirements. This translates into a significant increase in workload for both the regulatory agency and the source owner. For example, based on maximum capacity, there currently exists within new York State, a potential of 30,000 sources subject to Reasonably available Control Technology (RACT) for VOC and NOx and 11,000 sources subject to Title V. In addition, numerous other sources will likely be subject to federal New Source Review (NSR) requirements specified in 6 NYCRR Part 231 which could involve implementing such onerous measures as Lowest Achievable Emission rate (LAER) as well as emission offsets. Sources may also seek to establish emission reduction credits for the purpose of creating tradable offsets under the same provisions which would otherwise require processing as individual revisions to the State implementation Plan (SIP). It is the goal of the Department to address this workload by using permit conditions to limit or "cap" the potential to emit to below various applicability thresholds of those sources which qualify. These are sources which, based on their maximum actual operations, should not be applicable. By doing so, needless permit processing and review will be avoided while allowing otherwise limited resources to be Concentrated on truly applicable sources.
In order to ensure that such limitations and reductions are Actually incorporated into a source's design and followed in practice, the USEPA has reiterated through its policy directives that federal enforceability of permit limitations is necessary; otherwise Clean Air Act requirements still apply. If properly written, the "federally enforceable" permit will allow a regulatory agency's field inspector to enter a facility and determine the compliance status by reviewing the permit and its conditions, and any record keeping, reporting, or other monitoring data that is required by the air operating permit.
The concept of federal enforceability also requires that an opportunity for public notice and participation be provided prior to the issuance of any air permits imposing limitations on a source's operation. This will allow interested parties the chance to review the record to determine whether a proposed limitation or reduction will produce the benefits claimed, whether the applicant is seriously committed to the limitation, and whether practical means exist to monitor compliance with the limitation.
If the procedures in this Air Guide are followed, a source will Receive a federally enforceable limitation on its potential to emit. Violation of such a limitation could result in an enforcement action not only by the Department, but also by the USEPA, pursuant to Sections 113 and 167 of the Clean Air Act and by citizens, pursuant to Section 304 of the Act.
Finally, with the adoption of this air guide it should be noted that any specific guidance regarding limiting the potential to emit of a source and associated noticing and permit processing requirements found in previous air guides (i.e., Air Guide 12) will be superceded.
- General Criteria
The term "federally enforceable" refers to all Limitations and conditions which are enforceable by the administrator of the USEPA, including:
- requirements developed pursuant to any new source performance standards (NSPS) as listed in 40 CFR 60 or national emission standards for hazardous air pollutants (NESHAPS) as listed in 40 CFR 61,
- requirements within any applicable federally-approved state implementation plan (SIP), and
- any requirements contained in a permit issued pursuant to federal PSD regulations (40 CFR 52), or pursuant to PSD or operating permit provisions in a SIP which has been federally approved in accordance with 40 CFR 51 Subpart I.
Pursuant to 40 CFR Parts 51 and 52, terms and conditions contained in New York State operating permits are considered federally-enforceable because the following conditions have been Met:
- the state's operating permit program is approved by the USEPA and incorporated into the applicable SIP under section 110 of the Clean Air Act (Part 201 is approved at 40 CFR 52.1679);
- the operating permits are legally binding on the source under the SIP and the SIP specifically provides that permits that are not legally binding may be deemed not "federally enforceable" (see 40 CFR 52.1679);
- all emissions limitations, controls, and other requirements imposed by such permits are no less stringent than any corresponding federal or SIP standards and requirements (see 6 NYCRR § 201.4(3));
- the limitations, controls and requirements in the operating permits are permanent, quantifiable, and otherwise enforceable as a practical matter as set forth in this air guide; and
- the permits are issued subject to public participation, timely notice and opportunity for public comment in accordance with 6 NYCRR § 621.6, as required under Section C of this Air Guide.
In conformance with the above conditions, the NYSDEC is proposing to submit this guidance as a revision to its SIP, which will bind the Department to follow these procedures in issuing federally enforceable permits.
- Specific Requirements for Developing Permit Limitations
Permit limitations are the most direct way for a source to restrict its potential to emit. Developing appropriate (i.e., federally enforceable) permit conditions requires that the permit reviewer be cognizant of:
- what types of permit limitations legally limit the potential to emit of a source;
- whether the time periods used for limiting production and operation are enforceable as a practical matter; and
- whether permit limitations proposed by a source to limit the potential to emit below applicability threshold levels are being used as a means to circumvent certain preconstruction review requirements (i.e., false or deceptive permits).
- Types of Permit Limitations
There are three general categories of permit limitations:
Production limits which restrict the amount of final product which can be manufactured or otherwise produced at a source,
Operational limits which encompass all other restrictions on the manner in which a source functions, and
Emission limits which restrict the amount of a pollutant emitted from a source over a set time period.
Typical examples of production and operational limitations include:
- requirements to install and operate air pollution control equipment at prescribed efficiencies;
- restrictions on design capacity utilization (i.e., limiting the ability of a source to operate at its design capacity)
- restrictions on hours of operation; and
- restrictions on the types or amount of material processed, combusted or stored.
If a permit does not contain any limits on the capacity utilization or hours of operation, the potential to emit must be calculated assuming operation at maximum capacity and continuous operation (8760 hours per year). Emission limitations that do not represent the emission rate potential (i.e., the maximum emissions of a source operating at full design capacity without pollution controls) must include production and/or operational limitations for purposes of practical enforcement. Any production and/or operation limits must be stated as conditions that could be enforced independently of one another so that if one of the conditions is found to be difficult to monitor for any reason, the other may still be enforced. As an example, fuel restrictions might include independent conditions on both the type and amount of fuel combusted.
Production and operational limits should also have record keeping requirements that allow verification of a source's compliance with its limits. For example, permits with limits on hours of operation or amount of final product should require that an operating log containing the hours of operation or the amount of final product produced be maintained and made available to the field inspector upon request.
Permits that require the installation of air pollution controls having a specified control efficiency should also have conditions listing the operating parameters under which the control efficiency was achieved in order for the permit to be practically enforceable. For example, a particulate source requiring 95% emission controls may opt to install a baghouse by a manufacturer claiming a 95% control efficiency for the type of source in question. In this case, the manufacturer should provide the source owner with sufficient documentation to support the assertion. This information should then be included with any permit application. Once this has been verified by the permit reviewer, the permit conditions should specify that the baghouse must maintain certain key operating parameters as documented during the time of greatest efficiency. The parameters might include such items as air to cloth ratio, inlet and/or outlet temperature, pressure drop, fabric filter material type, etc. By noting operation within the specified parameters, the field inspector can then assume that the control Device is functioning properly and achieving the appropriate efficiencies.
In some instances, the permit reviewer may require an emission test of the source to verify the control efficiency. If the operating parameters are modified as a result of the test, the permit conditions should be revised accordingly assuming that the required control efficiency had been achieved during the test.
While the use of blanket emission limits to restrict potential To emit is generally prohibited because of the inability to practically enforce those limits, certain situations do allow their application. For example, federally enforceable permit conditions containing short term emission limits (i.e., lbs/hr) may be used to restrict the potential to emit provided that the limits reflect the operation of the control equipment, and the conditions include requirements to install, maintain, and operate a continuous emission monitoring system (CEM) system, retain the CEM data and specify that the CEM data is to be used to determine compliance with the emission limit.
Emission limits may also be employed for permits involving VOC surface coating operations that do not have add-on emission controls but instead emissions are restricted through limiting VOC content and quantities used. If it is determined that imposing such restrictions is impractical because of the multiplicity of coatings used or the otherwise variable nature of the operation, emission Limits may be employed provided they are combined with a requirement to calculate daily emissions. In this case, the source would be required to maintain the necessary records for calculating the emissions, including daily quantities and the VOC content of each coating used. Application of emission limits in this instance would be more easily enforceable than operating or production limits.
- Acceptable Time Periods for Limiting Production and Operation
For purposes of issuing "federally enforceable" permits, the NYSDEC is following the USEPA policy that the time period over which production and operational restrictions extend should be as short as possible and should be generally limited to one month. The theory behind this policy is that enforcement actions can be initiated for continuing violations without waiting an excessive amount of time.
If a one month limit is not reasonable, a limit spanning a longer time is appropriate provided it is a rolling limit. However, the limit should not exceed an annual limit rolled on a monthly basis. As an example, an oil-fired boiler might be limited to burning a total quantity of 840,000 gallons of residual (#6) fuel oil (roughly corresponding to 100 tpy of SO2 emissions) over any consecutive 12 month period. This would then be verified by monthly fuel use records.
Permits where longer rolling limits are used to restrict production should only be issued to sources with substantial and unpredictable annual variation in production (i.e., peaking turbines, emergency boilers). Rolling limits may also be utilized for sources subject to seasonal operations. For example, an asphalt plant that is typically shut down between November and April each year, may have permit conditions containing a zero operation limit for those months and an appropriate hourly operation limit for every other month within the paving season. Under no circumstances, would a production or operation limit expressed on a calendar year annual basis be considered a legally enforceable restriction.
- Deceptive Operational Limits
The definition of potential to emit allows sources to avoid applicability to various rules by limiting emissions through federally enforceable permit limitations. However, federal enforceability also requires that such limitations be permanent and implies that they conform with the actual design and intended operation of the specific project. Permits with conditions that do not reflect a source's planned mode of operation are not considered valid and may not shield a source from the preconstruction review requirements associated with PSD and Part 231 nonattainment (NSR) permits. Sources which attempt to expedite construction by securing minor source status through the receipt of operational restrictions from which the source intends to free itself shortly after operation are to be treated as circumvention of preconstruction review requirements. In such cases, the resultant permit limits cannot be used in the Determination of potential to emit.
According to 40 CFR §52.21(r)4, when a source that is minor as a result of operating restrictions imposed in a construction permit later applies for a relaxation of that construction permit which would make the source major, PSD requirements shall apply to the source or modification as though construction had not yet Commenced on the source or modification. The source would be subject to retroactive BACT and other PSD requirements. (Note: For sources located in nonattainment areas, corresponding LAER and other NSR requirements would apply.) In addition, an enforcement action may also be initiated if the original minor source Construction permit was considered false or deceptive. For cases where a source legitimately changes a project after finding that the operational restrictions which were taken in good faith cannot be complied with, enforcement action could be avoided provided the available evidence in the case supports the source's claim of good faith intentions.
An example of a situation which might be scrutinized for deceptive operational limits involves the construction of a manufacturing facility such as a glass processing plant in a PM-10 attainment area with a physical capacity significantly greater than the limits specified in a permit condition. At maximum design capacity the facility generates 140 tpy of PM-10 emissions. The facility however applies for and receives a permit with federally enforceable conditions which limit the PM-10 emissions to 90 tpy thus keeping the source below the PSD applicability threshold of 100 tpy for this type of source. One year later, the source applies for a modification which will increase PM-10 emissions by 12 tpy. The increase due to the modification is less than the PSD significant net emissions increase threshold for PM-10 emissions (i.e., 15 tpy) consequently PSD applicability is avoided again. If the application is accepted as is and the subsequent permit modification is issued, the facility has in effect gained an operating permit for a PSD major facility within a year without undergoing preconstruction review requirements. This type of project segmentation is specifically prohibited under 40 CFR §52.21(r)4. The facility would need to undergo retroactive PSD preconstruction review requirements. If it was determined that the facility purposely planned to circumvent PSD requirements an enforcement action would also need to be initiated.
Scenarios such as the one described above point out the necessity of assessing proposed permit limitations for suitability to a project on a routine basis. Exposing a deceptive permit application involves an evaluation of specific facts and evidence for each individual case. Listed below are potential (though not always available) sources of evidence that may be considered in determining whether a minor source construction air permit is false or deceptive:
- Filing a PSD or nonattainment NSR permit application
strong evidence of an intent to circumvent major source preconstruction review occurs if a major source or major modification permit application is filed simultaneously with or at approximately the same time as the minor source construction permit or even after the minor source has commenced operation.
- Applications for funding
applications for funding, such as public utility bond issues or commercial loans, may be checked for a certain guaranteed level of operation which is higher than that provided in the construction permit. If the project would not be funded or if it would not be economically viable if operated on an extended basis (> 1 year) at the permitted level production, this might be considered as evidence of circumvention.
- Reports regarding projected production levels
stockholder reports, business permit applications, etc. can be checked for evidence of circumvention by reviewing projected operation or production levels necessary to meet consumer demands. If the levels listed in the permit are lower, this can also be construed as evidence of circumvention.
- Statements by authorized representatives regarding operating plans
source representatives may make statements to the USEPA, state or local permitting agencies concerning operating plans which may in turn provide evidence of an intent to circumvent preconstruction review requirements
It should be noted that if a determination is made that a permit contains false conditions for one pollutant resulting in that project or source being designated a major source or major modification, the permit may possibly still contain valid limits on the potential to emit for other pollutants. In such cases, the entire source must still go through new source review. For PSD review, this would require all pollutants for which there is A significant net increase to undergo a Best Available Control Technology (BACT) analysis. For nonattainment new source review, LAER determinations would be required only for those pollutants for which the source is major. However, for major modifications, LAER Determinations would be required for all nonattainment pollutants emitted in significant amounts. If still valid limits in a Partially void minor source construction permit keep certain pollutants below significance levels, then those pollutants do not require a BACT or LAER analysis. Conversely, if a source or modification is determined to be major for PSD or nonattainment new source review because a portion of its minor permit is voided, a BACT or LAER analysis (whichever is applicable) would be required for all significant pollutants.
As with any permit change, if a source seeks to obtain a greater operational flexibility than that allowed in its permit, it would need to apply for the modification of the permit which would in turn require a reevaluation of the sources applicability and potential impacts.
- Filing a PSD or nonattainment NSR permit application
- Types of Permit Limitations
- Procedural Requirements
All federally enforceable air operating permits are issued subject to public participation requirements. This means that a timely notice of the draft permit and the issuance of the final permit will be provided to the public and the USEPA by the Department. In addition, the USEPA will be provided with a copy of each proposed (or draft) and final permit intended to be federally enforceable.
Permit application administrative procedures which satisfy Uniform Procedures Act (UPA) and federal public participation requirements are as follows:
Facilities seeking to limit their emissions, must submit an application for modification of the certificate to operate for each emission source requiring an emission potential limitation. Total facility emissions for affected categories of emissions must be below applicable thresholds to satisfy capping requirements.
The source owner shall submit capping requests and accompanying application(s) to the Division of Regulatory Affair's (DRA) Regional Permit Administrator responsible for the Region in which the facility is located. Forms prescribed by the Department shall be utilized (for the present, existing application forms are to be used, ultimately the new application form under development will be used).
The application shall be logged on the Regulatory Compliance information System (RCIS) as a permit modification and shall be treated as a new application for permit per 6 NYCRR § 621.13 (e) (3) (opportunity for public comment and/or hearing required). As a UPA minor project 15 days is provided for determining completeness which includes the Department's preparation of a draft permit. A decision on granting the modification is due within 45 days of completeness. UPA time frame waivers or extensions may be requested as necessary to complete reviews.
If, however, the permit application or modification request involving the cap is intended to restrict a proposed new emission source or modification to an existing facility or the potential to emit of a new facility from being subject to New Source Review under Part 231 or PSD, it will be treated as a major project and subject to appropriate procedures and time frames (60 days for completeness determination, notice of complete application and Draft permit in the Environmental Notice Bulletin (ENB) and Newspaper, 90 days from completeness to issue with opportunity for a hearing). This will be necessary to satisfy Title V permitting requirements as well as to provide reasonable public notice of potentially major emitting facilities which will be restricted with permit limits.
The application shall be forwarded to the Regional Air Pollution Control Engineer (RAPCE), the Multi-media Pollution Prevention (M2P2) Facility Manager, and other appropriate Department personnel, for review. The RAPCE is responsible for determining acceptability of the application and preparation of a draft permit containing emission limits and appropriate monitoring and/or record keeping conditions. Technical review will focus on verifying revised emission estimates and the proposed method of compliance. DRA will follow normal notification procedures for incomplete applications.
State Environmental Quality Review Act (SEQR) Status: Capping of Existing permitted emission sources will be Type II actions as they represent an additional restriction of emissions for which a SEQR Determination has already been made. Applications involving new or modified sources will generally qualify as unlisted actions under 6 NYCRR Part 617.
DRA will prepare a public notice and make arrangement for publication in the ENB. A standard notice format is presented in attachment A. All notices shall be "Notices of Complete Application for Permit Modification," and provide for a 30 day comment period. As stated earlier, the public notice must also be published in a newspaper if the cap is required to prevent a proposed new source or modification from being subject to 6 NYCRR part 231 or PSD. A second standard notice format is presented in attachment B for this application of an emissions cap.
Sources seeking to establish emission reduction credits for the purpose of creating emission offsets or to facilitate emissions trading are required to meet all federal enforceability criteria according to the CAAA, NY state Clean Air Compliance Act and 6 NYCRR Part 231. Procedural requirements are similar to those outlined in the previous paragraph except that the standard notice formats found in attachments C and D should be followed.
DRA shall distribute the notice of complete application and draft permit to:
USEPA, Region II Office
Air Compliance Branch
26 Federal Plaza
New York, NY 10278
M2P2 Facility Manager
Other Department Reviewers
DRA will receive comments and evaluate their content with the RAPCE and other programs as appropriate. DRA will reply to comments, based on responses provided from the RAPCE and other programs, and when necessary prepare requests for hearing.
Permit issuance will be undertaken by the Regional Permit Administrator who will distribute copies to:
M2P2 Facility Manager
Other Department Reviewers
The RAPCE shall provide notification to the Division of Air Resources Central Office of those facilities which have capped their emissions, using the attached Source Management System or SMS Facility Status Form. Central Office shall update computer Records by adding the appropriate codes to indicate a facility has been capped. Regional air staff will maintain responsibility for adding special conditions to the SMS records in order to show how the facility is being capped and how capping will be monitored and verified. When the Air Facility System (AFS) computer data program is implemented the regional Air Resources staff will edit computer Files to reflect changes in permit limits and conditions as part of the permit modification. A chart defining responsibilities is provided in Table 1.
Tom Allen, Director, Division of Air Resources
Lou Concra, Director, Division of Regulatory Affairs
Permitting Responsibilities for Establishing Federally Enforceable Permits
Division of Regulatory Affairs
- Receive and distribute permit application to technical staff for Review
- Evaluate application using input from technical staff
- Prepare all notices
- Arrange for publication of notices
- Receive and reply to public comments
- Prepare for hearing, if necessary
- Issue and distribute permit to appropriate parties including applicant, USEPA, RAPCE, M2P2 coordinator, etc.
Division of Air Resources
- Determine acceptability of application including verification of emission estimates and compliance methods
- Prepare draft permit with emission limits and compliance monitoring provisions
- Provide notification to Central Office Air staff of permit limits or "cap" via Source Management System (SMS) Facility Status Form
- Update system statewide registry of capped sources
(Central Office Air Staff)
Update SMS records (i.e., add special conditions indicating how source is being limited or "capped" and how limitations will be monitored and verified)
Attachment A Model Public Notice (Existing Source)
The Department has received (an) application(s) from [owner's/company name] for (a) modification(s) to (an) existing air pollution control permit(s) for [list brief description of source(s), i.e., combustion units, incinerators, processes...] discharging to emission points [list emission point ID #'s] located at [list facility name, street location, town, county].
These/This modification(s) is/are being proposed by the applicant for the purpose of restricting the potential to emit of these emission sources through enforceable permit conditions which will limit or cap emissions at a level which is below the [list the applicability threshold in tpy] applicability threshold for [list the appropriate regulation, i.e., RACT, PSD, Part 231, facility permit (Title V), MACT,...]. By accepting these state and federally enforceable limits, the source/facility will not be subject to this particular regulation.
The applicant has agreed to permit conditions which will limit emissions of [list applicable contaminants] to [___ tpy (list Contaminant(s), either NOx, VOC, CO, PM-10 or SO2)] through restrictions on [describe method of restricting emissions, i.e., limiting hours of operation, fuel usage, production/throughput,...]. The permittee will be required to maintain records and report this data to verify compliance with permit conditions and limits. The application [list application iD #] is available for review at the Region___ office. Contact person is:[list contact person name, address and phone #]. Comments will be received for 30 days from the date of this notice.
Model Public Notice (New Source/Modification)
The department has received (an) application(s) from [owner's name/company] for [list the quantity of] air pollution control permits to construct and operate (new/modified) [describe sources, i.e. stationary combustion, industrial process, incinerator] at [facility name, street location, town, county]. The project involves [further description - optional].
The applicant has proposed to accept a cap on emissions of [name triggering contaminant(s)] which will restrict the potential to emit of this/these source(s) to a level which is below the applicability threshold for [cite regulation, i.e., PSD, Part 231] which is [list annual tonnage threshold]. By accepting these state and federally enforceable limits the [name of the project, facility] will not be subject to these regulations.
The applicant has agreed to permit conditions which will limit emissions of [list applicable contaminants] to [___tpy (list Contaminant(s) either NOx, VOC, CO, PM-10 or SO2)] through restrictions on [describe method of restricting emissions, i.e., limiting hours of operation, fuel usage, production/throughput,...]. The permittee will be required to maintain records and report this data to verify compliance with permit conditions and limits. The application [list application iD #] is available for review at the Region___ office. Contact person is:[list contact person name, address and phone #]. Comments will be received for 30 days from the date of this notice.
Model Public Notice (Emission Reduction Credit Certification for Past Reductions)
The Department has received (an) application(s) from [owner's name] for (a) modification(s) to (an) existing air pollution control permit(s) for [brief description of source(s), i.e., combustion units, process units, incinerators] located at [list facility name/company, street location, town, county]. These/This modification(s) is/are being proposed by the applicant for the purpose of establishing certified emission reduction credits for past reductions which were the result of [shutdown, curtailment, voluntary emission controls, source reduction, etc.] of an/some emission source(s) at this facility.
The [owner name/company] will be establishing emission reduction credits of [___ tpy (list contaminant(s), either NOx, VOC, CO, or PM-10)] in accordance with 6 NYCRR Part 231 "New Source Review in Nonattainment Areas" with these/this permit modification(s). The application [list application ID #] is available for review at the Region ___ office. Contact person is [list contact person name, address, and phone #]. Comments will be received for 30 days from the date of this notice.
Model Public Notice
(Emission Reduction Credit Certification for Future Reductions)
The Department has received (an) application(s) from [owner's/company name] for (a) modification(s) to (an) existing air pollution control permit(s) for [brief description of source(s) i.e.,combustion units, process units, incinerators, etc.] located at [facility name, street location, town, county]. These/This modification(s) is/are being proposed by the applicant for the purpose of establishing certified emission reduction credits which will be transferred to and used in support of a [proposed major facility or proposed source project] at [name of user of emission reduction credit, facility name, location]. The emission reduction which is scheduled to occur on [proposed date] will be the result of [shutdown, curtailment, voluntary control, source reduction, etc.] of an/a number of emission sources at [name of applicant's facility, location].
The applicant will be establishing emission reduction credits of [___ tpy (list contaminant(s) either NOx, VOC, CO, or PM-10)] in accordance with 6 NYCRR Part 231 "New Source review in nonattainment Areas" with these/this permit modification(s) which will become effective on the date specified above. The reductions must physically occur prior to commencement of operation of the [proposed facility/source project] at [user facility name].
The application [list application ID #] is available for review at the Region___ office. Contact person is [name, address, phone #]. Comments will be received for 30 days from the date of this notice.
Listed below are various hypothetical situations used to illustrate the type of permit restrictions which may or may not be federally enforceable.
- Requirements to Install and Operate Air Pollution Control Equipment at Prescribed Efficiencies (and Establishing Enforceable Emission Limitations)
Example #1 - A plant consisting solely of A small rock crusher has the following permit restrictions: .05 gr/dscf; fabric filter to be employed and maintained at 99% efficiency.
Assuming that maintaining the fabric filter at 99% efficiency will result in emissions less than some desired threshold (e.g. 250 tpy for PSD applicability), this permit would limit potential to emit if it also contained either parameters that allow the Department to verify the fabric filter's operating efficiency or a requirement to install and operate continuous opacity monitors together with a specification that the monitoring data be used to verify compliance with emission limits. If the second alternative were to be adopted, it would not be necessary to require that the fabric filter be maintained at 99% efficiency.
To determine potential to emit, the efficiency rate of the fabric filter would be multiplied by the maximum uncontrolled emission rate, the maximum number of operating hours and maximum throughput capacity since no operating or production limits are present. The efficiency rate of the fabric filter would not be enforceable as a practical matter unless there were an enforceable means to monitor the fabric filter performance on a short term basis. The two alternatives discussed above would satisfy this requirement.
Example #2 - A small wood furniture line located in upstate NY has the capability of utilizing 10,000 gallon of coating/month, with the following permit restrictions: 3.0 lb VOC/gallon of coating minus water; 4 tons VOC/month; monthly VOC emissions to be determined from records of the daily volumes of coatings used multiplied by the VOC content specified by the manufacturer.
The above restrictions do not limit potential to emit since the source has the physical capacity to exceed the 50 tpy threshold limit for VOC RACT rule applicability under 6 NYCRR Part 228. A monthly limit on gallons of coating used which when multiplied by 3.0 lb/gal equates to less than the 50 tpy threshold (e.g. 2,700 gallons/month), with appropriate record keeping, would generally be necessary to limit the potential to emit. If, however, the Department determines, due to the wide variety of coatings employed and products produced, that restrictions on operation or production are not practically enforceable, then the above emission limits could restrict the potential to emit if there are requirements that the source calculate the VOC emission rate on a daily basis, and maintain appropriate records.
An alternate method of restricting the potential to emit would be to employ add-on controls to meet the 4 ton/month limit. In this case, the permit would need to contain an operational limit, such as the requirement to install and operate an incinerator at 99% efficiency. A requirement to monitor incinerator efficiency (either directly or indirectly via temperature monitoring as an example), and appropriate record keeping requirements to verify compliance with each of the permit conditions would also be necessary to make the permit conditions enforceable as a practical matter. The permit reviewer should note that in the case where add-on controls are to be used, the source may be able to meet a shorter term emission limit than the ton per month value.
- Restrictions on Design Capacity Utilization
Example #1 - The potential to emit of a boiler with a design input capacity of 200 MMBTU/hr is limited to a 100 MMBTU/hr fuel input rate by the permit, which requires that the Boiler's heat input not exceed 50% of its rated capacity. The permit would need to further require that compliance be demonstrated with a continuously recording fuel meter and concurrent monitoring and recording of fuel heating value to show that the fuel input does not exceed 100 MBTU/hr.
Example #2 - A #4 oil fired stone drier, permitted prior to 7/1/73 has the following characteristics: maximum process weight of 50,000 lbs/hr, 140 tpy particulate emission limit; a maximum concentration of 0.1 gr/dscf; a maximum permitted emission rate of 32 lbs/hr as per Table 4, Part 212.9; a maximum flow rate of 37,000 dscfm based on nameplate capacity; continuous operation; baghouse with a 90% overall reduction efficiency of particulate matter.
The facility decides to limit its potential to emit to 98 tpy in order to cap out of Title V requirements (100 tpy PM-10). For lack of data, all emitted particulates are assumed to be PM-10, which is a conservative assumption. One method by which this could be accomplished is by limiting the feed rate to 70% of the nameplate capacity. One of the enforceable limits becomes a stone feed rate (tph) based on 70% of nameplate capacity with a federally enforceable requirement for a method or device for measuring the feed rate on an hourly basis. In addition, provisions should be made for recording the quantity either automatically or manually via a written log.
An alternate approach would be to limit the particulate emission rate to 22 lbs/hr. In this way the permit contains a short term emission limit (in addition to the annual emission limit) consistent with the compliance period or parameter in the applicable test method for determining compliance.
A third alternative would be to retain a maximum concentration of 0.1 gr/dscf and limit the maximum exhaust flow rate to 26,000 dscfm due to the decrease in feed rate. In all these cases, the 90% overall reduction of particulate emissions on an hourly basis via capture hoods and baghouse would be maintained and further conditions would be implemented listing appropriate operating parameters for the baghouse which could then be used to verify proper operation of the control device.
It is important to note that this example focused on particulate emissions. Since NOx, SO2, and or CO emissions could be significant, these would also need to be evaluated separately for possible Title V applicability.
- Restrictions on Hours of Operation (including seasonal operation)
Example #1 - Using the stone drier scenario discussed in the previous example, the operator may choose to limit the hours of operation per year to keep the potential to emit below the Title V applicability threshold of 100 tpy. Assuming the same maximum concentrations, flow rate and minimum overall control efficiency limitations as discussed previously, a restriction on the number of 8-hour shifts to two, i.e., 16 hours per day would reduce the potential uncontrolled emissions by 33% to 94 tpy. The source would also be required to maintain appropriate records to document the hours of operation.
Example #2 - A minor source construction permit for an residual oil fired boiler contains the following restrictions: 250,000 gallon fuel/month; 0.8% S fuel; 8,000 hrs/yr.
The above conditions are federally enforceable production and operation limits, but do not limit the potential to emit because one of them cannot be enforced as a practical matter. The averaging time for hours of operation, one of the operational limits necessary to restrict emissions to less than the major PSD threshold of 250 tpy, exceeds a monthly or rolling yearly limit. If, instead of 8000 hrs/yr, the hourly restriction were stated as 666 hours/month, the permit would serve to keep the source a minor source, assuming the permit contains appropriate record keeping provisions.
- Restrictions on the Types or Amount of Material Processed, Combusted or Stored
Example #1 - Sulfur content in the coal feed for a power plant is limited to a maximum of 1% by weight.
Example #2 - A surface coater is limited to using only water-based or higher solids coatings with a maximum VOC content of 2.0 lbs VOC per gallon solids deposited on the substrate with requisite limits on coating usage (gallons/hr or gallons/yr) on a 12-month rolling time period.