Express Terms Part 231, New Source Review [in Nonattainment Areas and Ozone Transport Regions] for New and Modified Facilities

Subpart 231-1 Requirements for Emission Sources Subject to the Regulation Prior to November 15, 1992

Subpart 231-2 Requirements for Emission Units Subject to the Regulation on or after November 15, 1992 and Prior to the Effective Date of Subparts 231-3 through 231-13

Existing Subpart 231-1 remains unchanged.

Existing Subpart 231-2 through Subdivision 231-2.2(a) remains unchanged.

Existing Paragraph 231-2.2(a)(1) is amended as follows:

(1) a permit action for such emission unit occurs on or after November 15, 1992; or an exempt or trivial activity is constructed on or after November 15, 1992 and prior to the effective date of Subparts 231-3 through 231-13; and

Existing Paragraph 231-2.2(a)(2) through Section 231-2.13 remains unchanged.

New Subparts 231-3 through 231-13 are adopted to read as follows:

Subpart 231-3 General Provisions

Subpart 231-4 Definitions

Subpart 231-5 New Major Facilities and Modifications to Existing Non-major Facilities in Nonattainment Areas and Attainment Areas of the State within the Ozone Transport Region

Subpart 231-6 Modifications to Existing Major Facilities in Nonattainment Areas and Attainment Areas of the State within the Ozone Transport Region

Subpart 231-7 New Major Facilities and Modifications to Existing Non-major Facilities in Attainment Areas (Prevention of Significant Deterioration)

Subpart 231-8 Modifications to Existing Major Facilities in Attainment Areas (Prevention of Significant Deterioration)

Subpart 231-9 Plantwide Applicability Limitation (PAL)

Subpart 231-10 Emission Reduction Credits (ERCs)

Subpart 231-11 Permit and Reasonable Possibility Requirements

Subpart 231-12 Ambient Air Quality Impact Analysis

Subpart 231-13 Tables and Emission Thresholds

Subpart 231-3 General Provisions

Section

231-3.1 Statement of purpose
231-3.2 Transition plan
231-3.3 Summary of applicability
231-3.4 Exemptions
231-3.5 General prohibitions
231-3.6 Source obligation
231-3.7 Permits
231-3.8 Requirement to commence construction
231-3.9 Facility shakedown period
231-3.10 Circumvention
231-3.11 Severability clause

231-3.1 Statement of purpose.

The purpose of this Part is to establish the new source review (NSR) preconstruction, construction and operation requirements for new and modified facilities in a manner which furthers the policy and objectives of Article 19 of the Environmental Conservation Law, and meets the Plan Requirements for Nonattainment Areas (Part D) and Prevention of Significant Deterioration (PSD) of Air Quality (Part C) of subchapter I of the Act.

231-3.2 Transition plan.

(a) On or after the effective date of this Subpart, any owner and/or operator of a proposed new or modified facility, for which a complete application has not been submitted to the department, must comply with the provisions of Subparts 231-3 through 231-13 of this Part.

(b) On or after the effective date of this Subpart, Subpart 231-2 will only apply to applications determined to be complete prior to the effective date of this Subpart.

231-3.3 Summary of applicability.

(a) Subpart 231-5 of this Part applies to proposed new facilities, and to modifications at existing non-major facilities, proposed in a designated nonattainment area or in the ozone transport region which by themselves equal or exceed the applicable major facility threshold.

(b) Subpart 231-6 of this Part applies to modifications of existing major facilities proposed in a designated nonattainment area or in the ozone transport region.

(c) Subpart 231-7 of this Part applies to proposed new facilities, and to modifications at existing non-major facilities, proposed in areas designated in attainment of the national ambient air quality standards (NAAQS) or unclassified which by themselves equal or exceed the applicable major facility threshold.

(d) Subpart 231-8 of this Part applies to modifications of existing major facilities proposed in areas designated in attainment of the NAAQS or unclassified.

(e) Subpart 231-9 of this Part provides for a voluntary management of activities at an existing major facility under a Plantwide Applicability Limitation (PAL).

(f) Subpart 231-10 of this Part specifies how to create and use ERCs.

(g) Subpart 231-11 of this Part specifies permit and reasonable possibility requirements.

(h) Subpart 231-12 of this Part defines the requirements for an ambient air quality impact analysis.

(i) Subpart 231-13 of this Part sets forth tables and emission thresholds for determining applicability.

231-3.4 Exemptions.

(a) Any applicant for a proposed new or modified facility which is subject to this Part may petition the department and the administrator of the United States Environmental Protection Agency, in accordance with 42 U.S.C. section 7511a(f), for a determination that net air quality benefits are greater in the absence of reductions of oxides of nitrogen from the facility. In addition, this Part shall not apply to facilities in nonattainment areas within the ozone transport region if the administrator determines, in accordance with section 7511a(f), that reductions of NO_x would not produce net ozone air quality benefits, or facilities in nonattainment areas outside the ozone transport region if the administrator determines, in accordance with section 7511a(f), that reductions of NO_x would not contribute to attainment of the national ambient air quality standard for ozone in the area. To the extent that such a petition is granted by both the department and the administrator, consistent with the Act, the requirements of this Part for the proposed new or modified facility with respect to emissions of NO_x shall not apply.

(b) The facility is exempt from this Part if it is major based only on the addition of fugitive emissions and does not belong to one of the source categories listed in Table 9 of Subpart 231-13 of this Part.

(1) The facility or emission source is portable and has previously received a permit under requirements equivalent to those contained in this Part, if:

(i) the facility or emission source proposes to relocate and emissions of the facility or emission source at the new location would be for less than one year; and

(ii) the emissions from the facility would not exceed its emission limit(s) established in a permit; and

(iii) the emissions from the facility would impact no Federal Class I area and no area where an applicable increment is known to be violated; and

(iv) reasonable notice is given to the department prior to the relocation identifying the proposed new location and the probable duration of operation at the new location. Such notice must be given to the department not less than 10 days in advance of the proposed relocation unless a different time duration is previously approved by the department; or

(2) With respect to a particular regulated NSR contaminant, the facility is located in an area designated as nonattainment under section 107 of the Act for that contaminant.

(d) For the purposes of Subparts 231-7 and 231-8 of this Part, if the emissions from a facility or modification would occur for less than one year and impact no Federal Class I area, no area where an applicable increment is known to be violated, and would not contribute to known standards violations, then the requirements of Subparts 231-7 and 231-8 of this Part regarding Source Impact Analysis and Additional Impact Analyses, and Section 231-12.3 (Pre-application analysis for Subparts 231-7 and 231-8) of this Part, do not apply to a facility with respect to a particular regulated NSR contaminant.

(e) If an existing major facility owner or operator submits a Part 201 application that includes a proposed modification and a request for enforceable permit terms and conditions to restrict or cap facility wide emissions, in accordance with Subpart 201-7 of this Title, below applicable major facility thresholds, the modification is not subject to the requirements of this Part. The Part 201 state facility permit issued by the department must include all applicable requirements, including any control technology requirements and emission limitations that were in the Title V permit.

(f) Any emission source which is to be operated for less than one year, is determined not to be a significant action in accordance with the procedures contained in Part 617 of this Title, and which has a project emission potential less than the applicable significant project threshold in Table 3, Table 4 or Table 6 of Section 231-13 of this Part, is not subject to this Part.

231-3.5 General prohibitions.

Construction and operation prohibited. No owner or operator of a proposed major facility, NSR major modification, or existing major facility which undertakes a significant modification but avoids NSR applicability through netting, shall be allowed to begin actual construction, commence operation, or operate such new facility or modification, as appropriate, without a permit which incorporates the requirements of this Part. This provision shall not affect any requirement under Part 201 of this Title for an owner and/or operator to obtain a permit or permit modification prior to beginning actual construction, commencing operation or operating a new or modified facility.

231-3.6 Source obligation.

(a) The issuance of a permit does not relieve any owner or operator of the responsibility to comply fully with applicable provisions of the State Implementation Plan.

(b) For the purposes of Subparts 231-7 and 231-8 of this Part only, at such time that a particular facility becomes a major facility, or a modification becomes a NSR major modification solely by virtue of a relaxation in any enforceable limitation which was established after August 7, 1980, on the capacity of the facility or modification otherwise to emit a regulated NSR contaminant, such as a restriction on hours of operation, then the requirements of Subparts 231-7 and 231-8 of this Part, as applicable, apply to the facility as though construction had not yet commenced on the facility.

(c) Any owner or operator of a facility that proposes a project that involves a physical change or change in the method of operation that the owner or operator determines would be followed by a facility emissions increase that equals or exceeds any of the significant project thresholds in Subpart 231-13 of this Part, Tables 3, 4 or 6, must notify the department in writing of the proposed project prior to implementing the change if the owner or operator determines that the project does not constitute a modification because all the emission increases are attributable to independent factors in accordance with Clause 231-4.1(b)(40)(i)(c) of this Part. The notification shall include the following:

(1) A description of the change.

(2) The calculation of the projected emissions increase.

(3) The proposed date of the change.

(4) An explanation of the factual basis for the conclusion that none of the projected emission increases are attributable to the proposed project.

231-3.7 Permits.

(a) Permit applications for proposed new and modified facilities subject to this Part will be processed in accordance with Parts 201 and 621 of this Title.

(b) In accordance with section 165(c) of the Act, the department will make a final determination on an application submitted pursuant to Subpart 231-7 or Subpart 231-8 of this Part within one year of the filing of a complete application as defined under Part 621 of this Title.

231-3.8 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. The department may grant one extension for a period not to exceed 18 months upon a satisfactory showing that an extension is justified. A permit shall become subject to revocation or modification if construction is not commenced and completed as provided in this section. This provision does not apply to the time period between the completion and start of construction, of the approved phases, of a phased construction project; each phase must commence construction within 18 months of its projected and approved commencement date.

231-3.9 Facility shakedown period.

Upon commencement of operation, as defined in subparagraph 231-4.1(b)(11)(i), of a major facility or new or modified emission source(s) at an existing facility, the owner or operator is allowed a shakedown period for such major facility or modified emission source(s) according to the following provisions:

(a) The shakedown period shall not exceed 180 days from the date of commencement of operation. The department may specify a shakedown period of less than 180 days in a permit.

(b) The total mass emissions during the shakedown period must be quantified, in a manner approved by the department, and are to be included in the calculation demonstrating compliance with the permitted annual limit in tons per year (tpy) of the facility or emission source(s).

(c) Emission limits other than annual emission limitations do not apply to a major facility or new or modified emission source(s) at an existing facility during the shakedown period. However, the owner or operator must make all reasonable efforts to minimize emissions during the shakedown period.

231-3.10 Circumvention.

(a) An owner or operator of a facility may not circumvent this Part by causing or allowing a pattern of ownership or development, including the phasing, staging, delaying, or engaging in incremental construction at a facility which, except for the pattern of ownership or development, would otherwise require a permit.

(b) The sale or other transfer of a facility to a new owner or operator does not relieve the new owner or operator from the requirement to obtain a permit and operate the facility in conformance with the requirements of this Part.

231-3.11 Severability clause.

Each section or portion thereof, of this Part shall be deemed severable, and in the event that any section, or portion thereof, of this Part is held to be invalid, the remainder of this Part will continue in full force and effect.

Subpart 231-4 Definitions

231-4.1 Definitions.

(a) Unless otherwise defined in this section, the general definitions of Parts 200 and 201 of this Title apply.

(b) For the purposes of this Part the following definitions also apply:

(1) Actual emissions. For the purposes of determining the baseline concentration, and the calculation of air quality impacts according to Section 231-12.2 of this Part:

(i) The actual rate of emissions of a regulated NSR contaminant from an emission source, as determined in accordance with the following paragraphs.

(ii) Actual emissions as of a particular date shall equal the rate at which the emission source actually emitted the regulated NSR contaminant during the 24 consecutive month period which precedes the particular date and which is representative of normal emission source operation. The department will allow the use of a different time period upon a determination that it is more representative of normal facility operation. Actual emissions shall be calculated using the emission source's actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period.

(iii) The department may presume that facility-specific allowable emissions for the emission source are equivalent to the actual emissions of the emission source.

(iv) For any emission source that has not commenced operation on the particular date, actual emissions shall equal the potential to emit of the emission source on that date.

(2) Adverse impact on visibility. Visibility impairment which interferes with the management, protection, preservation or enjoyment of the visitor's visual experience of the Federal Class I area. This determination must be made on a case-by-case basis taking into account the geographic extent, intensity, duration, frequency and time of visibility impairment.

(3) Allowable emissions. This definition applies only for the purposes of determining the baseline concentration and the calculation of air quality impacts according to Section 231-12.2 of this Part. The emission rate of a facility calculated using the maximum rated capacity of the facility (unless the facility is subject to permit conditions which restrict the operating rate, or hours of operation, or both) and the most stringent of the following:

(i) The applicable standards as set forth in 40 CFR parts 60 and 61; or

(ii) The applicable state implementation plan emissions limitation, including those with a future compliance date; or

(iii) The emission rate specified in a permit condition, including those with a future compliance date.

(4) Baseline actual emissions. The annual rate of emissions of a regulated NSR contaminant from an emission source determined as follows:

(i) The average rate (as defined in Clauses a, b, c, and, d below), in tpy, at which an emission source physically emitted the contaminant during its baseline period, determined by using the source's actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected baseline period.

(a) The average rate includes fugitive emissions to the extent quantifiable if the facility belongs to one of the source categories listed in Table 9 of Subpart 231-13 of this Part, and emissions associated with startups, shutdowns, and malfunctions.

(b) The average rate must be adjusted downward to exclude any non compliant emissions that occurred while the emission source was operating above any applicable emission limitation.

(c) Except for electric utility steam generating units, the average rate must be adjusted downward to exclude any emissions that exceeded an emission limitation with which the emission source must currently comply, had such emission source been required to comply with such limitations during the baseline period. However, if an emission limitation is part of a maximum achievable control technology standard that the administrator proposed or promulgated under 40 CFR Part 63, the baseline actual emissions rate need only be adjusted if the State has taken credit for such emissions reductions in an attainment demonstration or maintenance plan consistent with the requirements of 40 CFR 51.165(a)(3)(ii)(G). For the purposes of a creditable emission increase or emission reduction credit used for netting, currently means at the time that the increase or reduction actually occurred.

(d) For a regulated NSR contaminant, when a project involves multiple emissions sources, one baseline period must be used to determine the baseline actual emissions of the emission sources being modified. A different baseline period cannot be used for each regulated NSR contaminant.

(ii) The applicant must use a reliable basis for quantifying the baseline actual emissions. Continuous emissions monitoring (CEM) data or stack test data approved by the department must be used if the facility is required to generate such data. If such data is not available, acceptable bases for quantifying baseline actual emissions include, but are not limited to, emission statements, EPA's AP-42 emission factors, and fuel and solvent purchase records, with department approval.

(5) Baseline area. Any intrastate area (and every part thereof), designated as attainment or unclassifiable under section 107 of the Act, in which the major facility or NSR major modification establishing the minor facility baseline date would construct or would have an air quality impact equal to or greater than 1 µg/m3 (annual average) of the regulated NSR contaminant for which the minor facility baseline date is established.

(i) Area redesignations under section 107 of the act cannot intersect or be smaller than the area of impact of any major facility or NSR major modification which establishes a minor facility baseline date; or

(ii) Baseline areas pursuant to established Air Quality Control Regions (AQCR) are defined and listed in the department's policy document on ambient air quality impact analysis procedures.

(6) Baseline concentration.

(i) The ambient concentration level that exists in the baseline area at the time of the applicable minor facility baseline date. A baseline concentration is determined for each regulated NSR contaminant for which a minor facility baseline date is established and must include:

(a) the actual emissions representative of facilities in existence on the applicable minor facility baseline date, except as provided in this Subparagraph; and

(b) the allowable emissions of major facilities that commenced construction before the major facility baseline date, but were not in operation by the applicable minor facility baseline date.

(ii) The following will not be included in the baseline concentration and will affect the applicable maximum allowable increase(s):

(a) Actual emissions from any major facility on which construction commenced after the major facility baseline date; and

(b) Actual emission increases and decreases at any facility occurring after the minor facility baseline date.

(7) Baseline period. A period of time used to quantify a creditable emission increase, an ERC, or project emission potential. The baseline period consists of any 24 consecutive months within the five years immediately preceding the date identified below (if less than 24 consecutive months of operation exist, this period of operation must be used as the baseline period):

(i) For a creditable emission increase which has physically occurred, the date of the occurrence of the emission increase;

(ii) For an ERC which has physically occurred, the date of the occurrence of the emission reduction;

(iii) For a creditable emission increase or an ERC which is scheduled to occur in the future, the date of receipt by the department of the permit application which proposes to use the creditable emission increase or ERC;

(iv) For the calculation of project emission potential of a modification, the date of receipt by the department of a permit application for the modification; or

(v) For a facility which fails to submit a permit application for a NSR major modification and begins actual construction of such modification, the department will determine an appropriate baseline period.

(8) Begin actual construction. In general, initiation of physical on-site construction activities on an emission source which are of a permanent nature. Such activities include, but are not limited to, installation of building supports and foundations, laying underground pipe work and construction of permanent storage structures. With respect to a change in method of operations, this term refers to those on-site activities other than preparatory activities which mark the initiation of the change.

(9) Best available control technology (BACT). An emissions limitation based on the maximum degree of reduction for each air pollutant subject to regulation under the Act which would be emitted from or which results from any proposed major facility or NSR major modification which the department, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such proposed major facility or NSR major modification through application of production processes or available methods, systems, and techniques, including fuel cleaning, clean fuels, or treatment or innovative fuel combustion techniques for control of such air pollutant. In no event shall application of BACT result in emissions of any air pollutant which would exceed the emissions allowed by any applicable standard established pursuant to section 7411 or 7412 of the Act. Emissions from any source utilizing clean fuels, or any other means, to comply with this paragraph shall not be allowed to increase above levels that would have been required under this paragraph as it existed prior to enactment of the Clean Air Act Amendments of 1990.

(10) Commence construction. The date on which the owner or operator has all necessary preconstruction approvals or permits (including those permits or approvals required under federal air quality control laws and those which are part of the state implementation plan) and has either:

(i) begun, or caused to begin, a continuous program of actual construction, to be completed within a reasonable time as determined by the department; or

(ii) entered into binding agreements or contractual obligations, which cannot be canceled or modified without substantial loss to the owner or operator, to undertake a program of actual construction to be completed within a reasonable time as determined by the department.

With respect to a change in the method of operation, commence construction refers to those on site activities other than preparatory activities which mark the initiation of the change.

(11) Commence(s) operation or commencement of operation.

(i) the date that a proposed new or modified facility first emits or increases emissions of any regulated NSR contaminant to which this Part applies; or

(ii) the date on which the facility shakedown period ends for a proposed modified facility which utilizes future ERCs for netting.

(12) Contemporaneous. The time period used in a net emission increase determination for a regulated NSR contaminant as follows:

(i) The period beginning five years prior to the proposed commence construction date of the new or modified emission source, and ending with the proposed commence operation date. These dates must be proposed by an applicant in a permit application.

(ii) For facilities proposing to use an alternative operating scenario pursuant to Part 201 of this Title, the period beginning five years prior to the date the application for the permit modification is determined complete by the department, in accordance with Part 621 of this Title, and ending with the final permit issuance date.

(13) Creditable emission increase. Any increase in emissions of a regulated NSR contaminant in tpy from an emission source at an existing major facility, other than such an increase from any proposed modified facility under review, which:

(i) results from a physical change in, or a change in the method of operation of an emission source(s); and

(ii) is quantified as the difference between baseline actual emissions and projected actual emissions.

(14) Curtailment. A restriction on the operation of an emission source at an existing facility included in a permit, which results in an emission reduction and reflects a partial reduction in hours of operation or capacity utilization of such emission source.

(15) Electric utility steam generating unit. Any steam-electric generating unit constructed for the purpose of supplying more than one third of its potential electric output capacity and more than 25 megawatts of electrical output to any utility power distribution system for sale. Any steam supplied to a steam distribution system for the purpose of providing steam to a steam electric generator that would produce electrical energy for sale is also considered in determining the electrical energy output capacity.

(16) Emission offset. ERCs or emission reductions which are required to be obtained by a proposed new or modified facility, which is or will be located in a nonattainment area or an attainment area of the state within the ozone transport region, in order to obtain a permit to construct and/or operate a new or modified facility.

(17) Emission reduction credit, ERC. The actual decrease in emissions of a regulated NSR contaminant, in tpy, determined in accordance with the requirements of Subpart 231-10 of this Part.

(18) Emission source shutdown. For the purposes of establishing ERCs:

(i) the permanent removal from service of an emission source, as reflected by a permit condition that formally prohibits the emission source from further operation, provided that it does not result in a facility shutdown; or

(ii) the physical removal of an emission source at a facility as reflected by a permit modification that removes the emission source from the permit, provided that it does not result in a facility shutdown.

(19) Facility shutdown. For the purposes of establishing ERCs, the permanent removal from service of all emission sources at a facility, as reflected by the surrender to the department of the applicable Title V or state facility permit, or registration.

(20) Federal Class I area. All of the following areas which were in existence on August 7, 1977 shall be Federal Class I areas and may not be redesignated:

(i) International parks;

(ii) National wilderness areas which exceed 5,000 acres in size;

(iii) National memorial parks which exceed 5000 acres in size;

(iv) National parks which exceed 6000 acres in size.

(21) Federal Land Manager. With respect to any Class I lands of the United States, the Secretary of the department with authority over such Class I lands.

(22) Future reductions. Reductions which are scheduled to occur subsequent to the issuance of a permit for a new or modified major facility using the reductions.

(23) Internal offset. ERCs of volatile organic compounds (VOC) or NO_x, in the severe ozone nonattainment area only, from emission sources within the same existing major facility as a proposed NSR major modification, which physically occur on or after November 15, 1990. Such reductions must meet the requirements of this Part.

(24) Major facility baseline date.

(i) In the case of particulate matter (PM) and SO₂, January 6, 1975, and

(ii) In the case of nitrogen dioxide, February 8, 1988.

(25) Major PAL emission source. For the purposes of Subpart 231-9 of this Part, any emission source located in an attainment area that emits or has the potential to emit 100 tpy or more of a PAL contaminant; or any emission source located in a nonattainment area that emits or has the potential to emit a PAL contaminant in an amount that is equal to or greater than the major facility threshold for the PAL contaminant.

(26) Minor PAL emission source. For the purposes of Subpart 231-9 of this Part, an emission source that emits or has the potential to emit a PAL contaminant in an amount less than the significant project threshold as listed in Subpart 231-13 of this Part or in the Act, whichever is lower, for that PAL contaminant.

(27) Minor facility baseline date. The earliest date after the trigger date on which a major facility or a NSR major modification subject to Subpart 231-7 or 231-8 of this Part submits a complete application.

(i) The trigger date is:

(a) in the case of PM and SO₂, August 7, 1977; and

(b) in the case of nitrogen dioxide, February 8, 1988.

(ii) The baseline date is established for each contaminant for which increments or other equivalent measures have been established if:

(a) the area in which the proposed emission source or modification would construct is designated as attainment or unclassifiable under section 7407 of the Act for the regulated NSR contaminant on the date of its complete application; and

(b) in the case of a major facility, the regulated NSR contaminant would be emitted at or greater than the major facility thresholds, or, in the case of a NSR major modification, there would be a significant net emissions increase of the regulated NSR contaminant.

(iii) The minor facility baseline dates have been established for SO₂, NO_x, and PM-10. These dates are listed in the department's policy documents on air quality impact analysis.

(28) Modification. Any physical change in, or change in the method of operation of, a facility which results in a level of annual emissions in excess of the baseline actual emissions of any regulated NSR contaminant emitted by such facility or which results in the emission of any regulated NSR contaminant not previously emitted. A modification shall not include the following:

(i) routine maintenance, repair, or replacement as defined in Part 200 of this Title;

(ii) use of an alternative fuel or raw material by reason of an order under sections 2(a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation) or by reason of a natural gas curtailment plan pursuant to the Federal Power Act;

(iii) use of an alternative fuel by reason of an order or rule under section 125 of the Act;

(iv) use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste;

(v) use of an alternative fuel or raw material by a facility which:

(a) the facility was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975 pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR Part 51 Subpart I or 40 CFR 51.166; or

(b) the facility is approved to use, pursuant to this Part, or which is included in a permit issued pursuant to 40 CFR 52.21.

(vi) an increase in the hours of operation or in the production rate, unless such change would be prohibited under any permit condition which was established after January 6, 1975, pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR Part 51 Subpart I or 40 CFR 51.166;

(vii) any change in ownership at a facility.

(29) Net emission increase. The aggregate increase in emissions of a regulated NSR contaminant in tpy at an existing major facility resulting from the sum of:

(i) the project emission potential of the modification; and

(ii) every creditable emission increase at the facility which is contemporaneous and for which an emission offset was not obtained; and

(iii) any ERC at the facility, or portion thereof, selected by the applicant which is contemporaneous and which was not previously used as part of an emission offset, an internal offset, or relied upon in the issuance of a permit under this Part.

(30) Nonattainment contaminant. A regulated NSR contaminant emitted by an emission source located or proposed to be located in an area designated in Part 200 of this Title as nonattainment for that contaminant. All of New York State is within the ozone transport region as designated by the act. Therefore, VOC and NO_x are treated as nonattainment contaminants statewide as precursors of ozone.

(31) NSR major modification. Any modification of a major facility that would exceed the applicable significant project threshold of a regulated NSR contaminant in Table 3, Table 4, or Table 6 of Subpart 231-13 of this Part; and would result in a significant net emissions increase of that contaminant from the major facility.

(i) Any modification with a project emission potential for VOC or NO_x that exceeds the applicable significant project threshold or any net emissions increase at a major facility that is significant for VOC or NO_x shall be considered significant for ozone.

(ii) This definition shall not apply with respect to a particular regulated NSR contaminant when the major facility is complying with the requirements under Subpart 231-9 of this Part for a PAL for that contaminant. Instead, the definition of PAL major modification shall apply.

(32) Offset ratio. The ratio of a required ERC, on a nonattainment contaminant specific basis, to the project emission potential of a modification at an existing facility or the potential to emit of a new facility, as applicable. Offset ratios are listed in Subpart 231-13 of this Part.

(33) Permanent. Permanent relative to an ERC from an emission source means that the reduction is irreversible through the life of the emission source except as provided in this Part.

(34) Plantwide applicability limitation (PAL). A facility-wide emission limitation for a regulated NSR contaminant at a major facility that is expressed in tpy and is included in the facility's permit.

(35) PAL contaminant. The regulated NSR contaminant for which a PAL is established at a major facility.

(36) PAL effective date. The date of issuance of the permit which establishes a PAL. The PAL effective date for a facility that undergoes a modification which increases a prior PAL is the date when the modification commences operation and begins to emit the PAL contaminant.

(37) PAL effective period. The period beginning with the PAL effective date and ending 10 years later or, the date of expiration of the Title V permit following the renewal of the Title V permit which established the PAL, whichever is earlier. Thereafter, the effective period is 10 years from date of issuance of the Title V permit. The effective period is not to exceed 10 years.

(38) PAL major modification. Notwithstanding the definitions for NSR major modification and net emissions increase, any modification of a facility with a PAL that causes it to emit the PAL contaminant at a level equal to or greater than the PAL.

(39) Project emission potential. Project emission potential is determined only for modifications at existing facilities.

(i) For each regulated NSR contaminant, the project emission potential must consider only the proposed emission increases and is calculated as the sum of the following:

(a) For new emission sources, the potential to emit of each emission source; and

(b) For existing emission sources at a non-major facility, the difference between the baseline actual emissions and the potential to emit of the emission source; or

(c) For existing emission sources at a major facility, the difference between the baseline actual emissions and the projected actual emissions of the emission source.

(ii) Project emission potential does not include secondary emissions.

(iii) Fugitive emissions are not included in the project emission potential unless the facility belongs to one of the source categories listed in Table 9 of Subpart 231-13 of this Part.

(iv) For emergency power generating stationary internal combustion engines, the project emission potential will be based on a maximum of 500 hours of operation per year per engine unless a more restrictive limitation exists in a permit or registration.

(40) Projected actual emissions. The maximum annual rate, in tpy, at which an existing emission source is projected to emit a regulated NSR contaminant in any one of the five years (12-month period) following the date the source commences operation after a modification, or in any one of the 10 years following that date if the project involves increasing the emission source's design capacity or its potential to emit that regulated NSR contaminant and full utilization of the emission source would result in exceeding the applicable significant project threshold in Tables 3, 4 or 6 of Subpart 231-13 of this Part or a significant net emissions increase at the major facility. Projected actual emissions are calculated only for existing major facilities.

(i) In determining the projected actual emissions as defined in this Section (before beginning actual construction), the owner or operator of the major facility:

(a) must consider all relevant information, including but not limited to, historical operational data, the facility's own representations, the facility's expected business activity and the facility's highest projections of business activity, the facility's filings with the State or federal regulatory authorities, and compliance plans under the approved State Implementation Plan; and

(b) must include fugitive emissions to the extent quantifiable if the facility belongs to one of the source categories listed in Table 9 of Subpart 231-13 of this Part , and emissions associated with startups and shutdowns; and

(c) may exclude, in calculating any increase in emissions that results from the particular project, that portion of the emission source's emissions following the project that the existing emission source could have accommodated during the consecutive 24-month period used to establish the baseline actual emissions and that are also unrelated to the particular project.

(ii) In lieu of using the method set out in Subparagraph (i) of this Paragraph, the owner or operator of the facility may elect to use the potential to emit of the emission source(s), in tpy.

(41) Quantifiable. A reliable basis must exist for calculating the amount and the rate of the emissions increase or reduction, along with a description of the characteristics of such increase or reduction. The same method must be used to quantify emissions before and after the emissions increase or reduction, unless the department approves an alternate method.

(42) Reasonable further progress. Annual incremental reductions in emissions of a nonattainment contaminant required by applicable regulations and implementation plans to ensure timely attainment of the corresponding national ambient air quality standard.

(43) Regulated NSR contaminant. A regulated NSR contaminant is any one of the following:

(i) Any contaminant for which a national ambient air quality standard has been promulgated and any constituents or precursors for such contaminants identified under the Act or by the administrator of the US EPA in a promulgated rule;

(ii) Any contaminant that is subject to any standard promulgated under section 111 of the Act;

(iii) Any Federal Class I or II substance subject to a standard promulgated under or established by Title VI of the Clean Air Act; or

(iv) Any contaminant that otherwise is subject to regulation under the Clean Air Act; except that any or all hazardous air pollutants either listed in section 112 of the Act or added to the list pursuant to section 112(b)(2) of the Act, which have not been delisted pursuant to section 112(b)(3) of the Act, are not regulated NSR contaminants unless the listed hazardous air pollutant is also regulated as a constituent or precursor of a criteria contaminant listed under section 108 of the Act.

(44) Secondary emissions. Emissions of a regulated NSR contaminant which will occur as a result of the construction or operation of a proposed new or modified facility, not including emissions from the proposed new or modified facility itself. Secondary emissions must be specific, well defined, quantifiable, and impact the same general area as the proposed new or modified facility which causes the secondary emissions. Secondary emissions include regulated NSR contaminant emissions from any offsite support facility which would not be constructed or increase its emissions except as a result of the construction or operation of the proposed new or modified facility. Secondary emissions do not include any emissions which come directly from a mobile source subject to any regulation under Title II of the Clean Air Act, such as emissions from a motor vehicle or a train. Secondary emissions will not be considered in an applicability determination for a proposed new or modified facility. For the purposes of Subpart 231-12 of this Part, secondary emissions must be included during the modeling exercise.

(45) Significant net emission increase.

(i) A net emission increase of a nonattainment contaminant at an existing major facility that equals or exceeds the applicable significant net emissions increase threshold specified in Tables 3 and 4 of Subpart 231-13 of this Part; or

(ii) A net emission increase of a regulated NSR contaminant at an existing major facility located in an attainment area or unclassifiable area under section 7407 of the Act that equals or exceeds the applicable significant net emissions increase threshold specified in Table 6 of Subpart 231-13 of this Part.

(46) Significant PAL emission source. An emission source that emits or has the potential to emit a PAL contaminant in an amount that is equal to or greater than the significant project threshold (as listed in Subpart 231-13 of this Part or in the Act, whichever is lower) for that PAL contaminant, but less than the amount that would qualify the emission source as a major PAL emission source.

(47) Source reduction. Any practice which reduces emissions of a regulated NSR contaminant, other than a facility shutdown, emission source shutdown, curtailment, or over control of emissions beyond an applicable limit. Examples of source reduction would be reformulation of inks, paints, coatings, etc., which result in reductions beyond levels required by the most stringent applicable state or federal emission limitation, or replacement at the same location, or contiguous locations, of a source with another source which emits less to perform the same task, or replacement or repair of valves, fittings, or other equipment to reduce fugitive emissions.

(48) Surplus. A reduction in emissions beyond levels prescribed by the most stringent applicable state or federal emission limitation required by the Act.

Subpart 231-5 New Major Facilities and Modifications to Existing Non-major Facilities in Nonattainment Areas, and Attainment Areas of the State within the Ozone Transport Region

Section

231-5.1 Applicability
231-5.2 Permit application content
231-5.3 Permit content and terms of issuance
231-5.4 Lowest achievable emission rate (LAER)
231-5.5 Emission offset requirements

231-5.1 Applicability.

(a) The requirements of this Subpart apply, in nonattainment areas and attainment areas of the state within the ozone transport region, to the construction and/or operation of:

(1) any proposed facility which has the potential to emit a nonattainment contaminant in an amount that equals or exceeds the applicable major facility threshold, in Tables 1 or 2 of Subpart 231-13 of this Part, for that contaminant; or

(2) a modification to an existing non-major facility which has a project emission potential for any nonattainment contaminant that equals or exceeds the applicable major facility threshold, in Tables 1 or 2 of Subpart 231-13 of this Part, for that contaminant.

(b) An existing non-major facility that is located in a nonattainment area or an attainment area of the state within the ozone transport region which proposes a modification that has a project emission potential for any nonattainment contaminant that does not equal or exceed the applicable major facility threshold, in Tables 1 or 2 of Subpart 231-13 of this Part, but would result in the facility becoming a major facility for such contaminant, is not subject to review under this Subpart. However, the facility owner or operator must apply for and obtain a permit in accordance with Part 201 of this Title and the permit must contain an emission limit(s) equal to the potential to emit of the emission source(s) affected by the modification.

231-5.2 Permit application content.

The information required in a permit application is set forth in Part 201 of this Title and generally in Subpart 231-11 of this Part. In addition, the following information must be included with the permit application at the time the application is submitted to the department, unless otherwise specified:

(a) A certification that all emission sources which are part of any major facility located in New York State and under the applicant's ownership or control (or under the ownership or control of any entity which controls, is controlled by, or has common control with the applicant) are in compliance, or are on a schedule for compliance, with all applicable emission limitations and standards under Chapter III of this title.

(b) An analysis of alternative sites, sizes, production processes, and environmental control techniques which demonstrates that benefits of the proposed new or modified facility significantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification within New York State.

(d) Emission offset information for VOC or NO_x. At the time of the initial permit application or before the department issues a final permit determination, the applicant must submit:

(1) a list which identifies the source(s) of approved or proposed ERCs of VOC or NO_x that will be used as required emission offsets. This list must include the name and location of the facility, DEC identification number, if applicable, and the emission reduction mechanism (i.e., facility shutdown, emission unit shutdown, source reduction, curtailment, over-control of emissions beyond an applicable limit). All the proposed ERCs must be certified prior to the issuance of the final permit; and

(2) a Use of Emission Reduction Credits Form (duly completed and signed by the applicant and an authorized representative of the ERC seller) for each ERC source listed in Paragraph 231-5.2(d)(1) of this Subdivision. Upon issuance of the permit for the proposed new or modified facility, the NYS ERC Registry will be amended to reflect that the ERCs are committed as emission offsets to the proposed new or modified facility; and

(3) for emissions of VOC or NO_x in an ozone nonattainment area, documentation of compliance with the contribution demonstration required according to the department's policy documents on air quality impact analyses pursuant to Subpart 231-12 of this Part.

(e) Emission offset information for PM-10 and PM-2.5. The following information must be submitted at the time of the initial permit application:

(1) A list which identifies the source(s) of approved or proposed ERCs of PM-10 or PM-2.5 that will be used as required emission offsets. This list must include the name and location of the facility, DEC identification number, if applicable, and the emission reduction mechanism (i.e., facility shutdown, emission unit shutdown, source reduction, curtailment, over-control of emissions beyond an applicable limit); and

(2) A Use of Emission Reduction Credits Form (duly completed and signed by the applicant and an authorized representative of the ERC seller) for each ERC source listed in Paragraph 231-5.2(e)(1) of this Subdivision. Upon issuance of the permit for the proposed new or modified facility, the NYS ERC Registry will be amended to reflect that the ERCs are committed as emission offsets to the proposed new or modified facility; and

(3) An air quality impact evaluation in accordance with the provisions of Subdivision 231-5.5(d) and Subpart 231-12 of this Part and the department's policy document on air quality impact analysis.

231-5.3 Permit content and terms of issuance. The permit content and terms of issuance are set forth generally in Subpart 231-11 of this Part. In addition, the following provisions apply:

(a) The following emission limitations, as applicable, shall be established in a permit:

(1) The potential to emit of all applicable nonattainment contaminants of a proposed facility;

(2) The potential to emit each applicable nonattainment contaminant of a modification at an existing non-major facility which has a project emission potential for any nonattainment contaminant that exceeds the major facility threshold for that contaminant;

(3) Any applicable LAER limitation.

(b) A revised air quality impact evaluation must be submitted if the emission offset list changes after the department provides a Notice of Complete Application in accordance with Part 621, and a supplemental public notice must be provided in accordance with Section 231-5.3(c) of this Part.

(1) A supplemental public notice is required prior to final permit issuance if the list of facilities providing ERCs for emission offsets is changed or finalized after the date of the Notice of Complete Application. Such notice will be provided in accordance with Part 621 of this Title.

(2) A significant permit modification in accordance with Part 201 of this Title, and supplemental public notice are required if the list of facilities providing ERCs is changed after final permit issuance and prior to commencement of operation. Such notice will be provided in accordance with Part 621 of this Title.

(d) A petition for party status pursuant to the supplemental notice provisions based on an offer of proof that raises substantive and significant issues related to emission offset requirements of this Part will not be considered as late filed petitions for party status pursuant to Part 624 of this Title.

(e) Offset confirmation prior to the commencement of operation. At least 60 days prior to the date a proposed new or modified facility commences operation, the permittee must submit an application to the department if there are any proposed changes to the approved list of emission offset sources included in the permit for that facility. For each such change, the applicant must submit another Use of Emission Reduction Credits Form signed by the applicant and an authorized representative of the new offset source.

(f) Future ERCs. The permittee must submit prior to permit issuance a copy of each modified permit establishing future ERCs and a letter to the department stating that the future reductions have physically occurred. The letter shall be submitted as follows:

(1) no less than 10 working days prior to the date the proposed new or modified facility commences operation, except for a functional replacement of an existing emission source(s); or

(2) by the conclusion of the facility shakedown period, as identified under Section 231-3.9 of this Part, for a functional replacement of an existing emission source(s).

(g) Canceled or abandoned projects. Prior to the commencement of operation, a facility owner or operator may notify the department of their intention to abandon the project and request a return of ERCs committed for use as emission offsets. Following the department's approval of such request and rescission of the permit, the department will return the unused ERCs to the ERC Registry.

231-5.4 Lowest achievable emission rate (LAER).

(a) For a proposed new or modified facility LAER is required for each emission source which emits a nonattainment contaminant for which the new facility or modification is major.

(b) In establishing the final LAER limit, the department may consider any new information, including recent permit decisions, or public comment received, subsequent to the submittal of a complete application.

231-5.5 Emission offset requirements.

(a) Emission offset applicability.

(1) A proposed new facility which is subject to this Subpart must offset its potential to emit for each nonattainment contaminant for which it equals or exceeds the major facility threshold.

(2) A proposed modification to an existing non-major facility must offset its project emission potential for each nonattainment contaminant for which the project emission potential equals or exceeds the major facility threshold.

(b) Offset ratio.

(1) An emission offset of VOC or NO_x as ozone precursors must exceed the corresponding facility potential to emit or project emission potential (subsequent to application of LAER), as appropriate, by the applicable offset ratio specified in Subpart 231 13 of this Part. A greater offset ratio may be required, on a case-by-case basis, to provide an acceptable contribution demonstration as set forth in this section.

(2) An emission offset of PM-10 and PM-2.5 must at least equal (offset ratio of one to one or greater) the corresponding facility potential to emit or project emission potential (subsequent to application of LAER), as appropriate, as indicated in Subpart 231-13 of this Part. A greater offset ratio may be required to provide a net air quality benefit as set forth in this section.

(c) Use of an ERC as part of an emission offset. An ERC must meet the following conditions to be used as part of an emission offset:

(1) For NO_x, PM-10, or VOC emissions, ERCs must have physically occurred on or after November 15, 1990 but need not be contemporaneous;

(2) For PM-2.5 emissions, ERCs must have physically occurred on or after April 5, 2005 but need not be contemporaneous;

(3) An ERC, or portion thereof, must be included as a condition in the permit for the proposed new or modified facility for which the reduction is used.

(d) Net air quality benefit and emission offset location for PM 10 or PM-2.5. An emission offset of PM 10 or PM-2.5 must meet the following:

(1) Contribution demonstration. An emission offset may be obtained from the same nonattainment area in which a proposed new or modified facility is to be located. An emission offset may also be obtained from other nonattainment areas of equal or higher classification if emissions from such other areas contribute to a violation of the NAAQS for PM 10 or PM-2.5, as applicable, in the nonattainment area where the proposed new or modified facility is to be located.

(2) Net air quality benefit demonstration. As part of a permit application, the applicant must submit an air quality impact evaluation in accordance with the department's policy document on ambient air quality impact analysis provisions. The ambient air quality impact analysis must demonstrate that:

(i) the net impact of the proposed emissions increase and the emission offset provides for a net benefit, on balance, in the area affected by the proposed new or modified facility; and

(ii) for PM-10 only, the net impact in no case exceeds an applicable significant impact level of Section 231 12.6 of this Part.

(3) Interstate offsets. An emission offset of PM 10 or PM-2.5, from areas of equal or higher classification may be obtained from another state, provided that an interstate reciprocal trading agreement is in place and the requirements of Paragraphs (1) and (2) of this Subdivision are met.

(e) Ozone nonattainment and emission offset location. The department's policy documents on an air quality impact analysis must be used by an applicant to find default acceptable VOC or NO_x offset source locations within New York State or to perform a case specific contribution demonstration. An emission offset of VOC or NO_x is subject to the following:

(1) Proposed new or modified facility located in an ozone nonattainment area.

(i) Intrastate offset sources. An emission offset of VOC or NO_x must be obtained from:

(a) the same ozone nonattainment area, or

(b) other ozone nonattainment areas of equal or higher classification, if emissions from such other areas contribute to a violation of the NAAQS for ozone in the nonattainment area where the proposed new or modified facility is to be located.

(ii) Interstate offset sources. An emission offset may be obtained from other ozone nonattainment areas of equal or higher classification in another state, if emissions from such other areas contribute to a violation of the NAAQS for ozone in the nonattainment area where the proposed new or modified facility is to be located and an interstate reciprocal trading agreement is in place. The department's policy document on an air quality impact analysis may be used by an applicant to perform a case specific contribution demonstration.

(2) Proposed new or modified facility located in an attainment area of the state within the ozone transport region. An emission offset of VOC or NO_x may be obtained from any location within the ozone transport region. Such an offset may also be obtained from another state in the ozone transport region, provided that an interstate reciprocal trading agreement is in place.

Subpart 231-6 Modifications to Existing Major Facilities in Nonattainment Areas and Attainment Areas of the State within the Ozone Transport Region

Section

231-6.1 Applicability
231-6.2 Netting
231-6.3 Permit application content
231-6.4 Permit content and terms of issuance
231-6.5 Lowest achievable emission rate, LAER
231-6.6 Emission offset requirements
231-6.7 Internal offsets, severe ozone nonattainment area only

231-6.1 Applicability.

The requirements of this Subpart apply to the construction and/or operation of any proposed modification at an existing major facility located in a nonattainment area, or an attainment area of the state within the ozone transport region as follows:

(a) For a modification with a project emission potential, calculated utilizing projected actual emissions, which does not equal or exceed the applicable significant project threshold in Table 3 or Table 4 of Subpart 231-13 of this Part, the facility owner or operator must comply with the provisions of Section 231-11.2 of this Part.

(b) For a modification with a project emission potential which equals or exceeds the applicable significant project threshold in Table 3 or Table 4 of Subpart 231-13 of this Part, but does not result in a NSR major modification, the facility owner or operator must comply with the provisions of Section 231-6.2 of this Part.

(c) For a modification which the facility determines will result in a NSR major modification, the facility owner or operator must comply with the provisions of this Subpart as appropriate.

(d) Special applicability rules for modifications of existing major facilities in severe ozone nonattainment areas.

(1) Modifications of facilities emitting less than 100 tpy. In the case of any major facility of VOC or NO_x (other than a facility which emits or has the potential to emit 100 tpy or more of VOC or NO_x), whenever any modification at the facility results in an NSR major modification of VOC or NO_x from any discrete operation, emission source, or other regulated NSR contaminant emitting activity at the facility, such emission increase shall be considered as a modification for purposes of requiring a permit under this Part, except that such increase shall not be considered a modification for such purposes if the owner or operator of the facility elects to offset the emission increase by a greater reduction in emissions of VOC or NO_x, as applicable, from other operations, emission sources, or activities within the facility at an internal offset ratio of at least 1.3 to one. If the owner or operator does not make such election, the modification shall be considered an NSR major modification for such purposes, but in applying control requirements, BACT shall be substituted for LAER.

(2) Modifications of facilities emitting 100 tpy or more. In the case of any major facility of VOC or NO_x which emits or has the potential to emit 100 tpy or more of VOC or NO_x whenever any modification at the facility results in an NSR major modification of VOC or NO_x from any discrete operation, emission source, or other contaminant emitting activity at the facility, such emission increase shall be considered a modification for purposes of requiring a permit under this Part, except that if the owner or operator of the facility elects to offset the emission increase by a greater reduction in emissions of VOC or NO_x, as applicable, from other operations, emission sources, or activities within the facility at an internal offset ratio of at least 1.3 to 1, the requirements of LAER shall not apply.

231-6.2 Netting.

This section sets forth the procedures for avoiding a NSR major modification where the proposed modification exceeds the significant project threshold(s) but does not result in a significant net emission increase.

(a) General requirements.

(1) A net emission increase determination shall be confined to the appropriate contemporaneous period for a proposed modification.

(2) Any ERC which is used in a net emission increase determination must have physically occurred on or after the applicable date listed in Subdivision 231-5.5(c) of this Part.

(3) A net emission increase determination will only be allowed at an existing major facility.

(4) Any creditable emission increase or ERC must be of the same class of nonattainment contaminant.

(5) Any creditable emission increase or ERC which is used in a net emission increase determination must occur at the same major facility as the proposed modification.

(6) Any creditable emission increase from an emission source issued a permit for which an emission offset or an internal offset was obtained, shall not be considered in any subsequent net emission increase determination.

(b) Permit requirements for netting. A facility owner or operator which proposes a modification that does not result in a significant net emission increase, must:

(1) apply for and obtain a permit which establishes an emission limit that equals the projected actual emissions or potential to emit, as appropriate, of the modification of each nonattainment contaminant(s) which exceed(s) the applicable significant project threshold.

(2) apply for and obtain a permit which establishes the ERCs relied on for the net emission increase determination, if the ERCs are not already approved by the department.

(3) submit a Use of Emission Reduction Credits Form (duly completed and signed by the applicant) for each source of ERC's to be used for netting. Upon issuance of the permit for the proposed modification, the ERC Registry will be amended to reflect that the ERCs have been committed to the proposed modification.

(4) apply for and obtain a permit which complies with any additional requirements of Subpart 231-11 of this Part.

(c) Re-evaluation of a prior net emission increase determination at a facility that was not significant. The facility owner or operator must reevaluate the determination of the net emission increase of a prior modification which did not result in a significant net emission increase if a proposed modification will commence operation within the contemporaneous period of the prior modification. The facility owner or operator must recalculate the net emission increase of the prior modification at the facility by including the project emission potential of the proposed modification as a creditable emission increase. If the recalculated net emission increase of the prior modification results in a significant net emission increase, taking into account the proposed modification, the facility owner or operator must select one of the following options:

(1) Submit a permit application and accept a condition prohibiting the proposed modification from commencing operation until after the close of the contemporaneous period for the previously permitted modification; or

(2) Create additional ERCs according to the provisions of Subpart 231-10 of this Part at the facility in an amount which ensures that the net emission increase of the prior modification, after taking into account the creditable emission increase of the proposed modification does not result in a significant net emission increase; or

(3) Submit an application requesting modification of the permit for the prior modification which reflects the applicability of this Subpart. The facility owner or operator may not begin actual construction of the prior modification or begin operation until the department approves the application and issues a permit which incorporates the requirements of this Subpart.

231-6.3 Permit application content.

The information required in a permit application is set forth in Part 201 of this Title and generally in Subpart 231-11 of this Part. The following information must also be included at the time a permit application is submitted to the department for a modification which results in a NSR major modification, unless otherwise specified:

(b) An analysis of alternative sites, sizes, production processes, and environmental control techniques which demonstrates that benefits of the proposed project or proposed major facility significantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification within New York State.

(d) Emission offset and internal offset information for VOC or NO_x. At the time of the initial permit application or before the department issues a final permit determination for a NSR major modification, the applicant must submit:

(1) a list which identifies the source(s) of approved or proposed ERCs of VOC or NO_x that will be used as an internal offset or required emission offset. This list must include the name and location of the facility, DEC identification number, if applicable, and the emission reduction mechanism (i.e., facility shutdown, emission unit shutdown, source reduction, curtailment, over-control of emissions beyond an applicable limit). All the proposed ERCs must be certified prior to the issuance of the final permit; and

(2) a Use of Emission Reduction Credits Form (duly completed and signed by the applicant and an authorized representative of the ERC seller) to the department for each ERC source listed in Subparagraph 231-6.3(d)(1) of this Section. Upon issuance of the permit for the proposed modification, the NYS ERC Registry will be amended to reflect that the ERCs are committed as an internal offset or emission offset ,as applicable, to the proposed modification; and

(e) Emission offset information for PM-10 and PM-2.5. The following information must be submitted at the time of the initial permit application for a NSR major modification:

(2) A Use of Emission Reduction Credits Form (duly completed and signed by the applicant and an authorized representative of the ERC seller) for each ERC source listed in Subparagraph 231-6.3(e)(1) of this Section. Upon issuance of the permit for the proposed modification, the NYS ERC Registry will be amended to reflect that the ERCs are committed as emission offsets to the proposed modification.

(3) An air quality impact evaluation in accordance with the provisions of Subdivision 231-6.6(d) and Subpart 231-12 of this Part and the department's policy documents on air quality impact analyses.

231-6.4 Permit content and terms of issuance.

The permit content and terms of issuance for an NSR major modification are set forth generally in Subpart 231-11 of this Part. In addition, the following provisions apply:

(a) The following emission limitations, as applicable, shall be established in a permit:

(1) The projected actual emissions or potential to emit, as appropriate, of each applicable nonattainment contaminant(s) for a proposed NSR major modification;

(2) Any LAER limitation.

(b) A revised air quality impact evaluation must be submitted if the internal offset or emission offset list changes after the department provides a Notice of Complete Application in accordance with Part 621 of this Title, and a supplemental public notice must be provided in accordance with Subdivision 231-6.4(c) of this Part.

(1) A supplemental public notice is required prior to final permit issuance, if the list of ERCs provided as internal offsets or emission offsets is changed or finalized after the date the Notice of Complete Application. Such notice will be provided in accordance with Part 621 of this Title.

(2) A permit modification and supplemental public notice are required if the list of ERCs is changed after final permit issuance. Such notice will be provided in accordance with Part 621 of this Title.

(d) A petition for party status pursuant to the supplemental notice provisions based on an offer of proof that raises substantive and significant issues related to internal offset or emission offset requirements of this Part will not be considered as late filed petitions for party status pursuant to Part 624 of this Title.

(e) Offset confirmation prior to the commencement of operation. At least 60 days prior to the date a proposed modification commences operation, the permittee must submit an application to the department if there are any proposed changes to the approved list of internal offset or emission offset sources included in the permit for that facility. For each such change, the applicant must submit another Use of Emission Reduction Credits Form signed by the applicant and an authorized representative of the new offset source.

(1) no less than 10 working days prior to the date the proposed new or modified facility commences operation, except for a functional replacement of an existing emission source(s); or

(2) by the conclusion of the facility shakedown period, as identified under Section 231-3.9 of this Part, for a functional replacement of an existing emission source(s).

(g) Canceled or abandoned projects. Prior to the commencement of operation, a facility owner or operator may notify the department of their intention to abandon the project and request a return of ERCs committed for use as an internal offset or emission offset. Following the department's approval of such request and rescission of the permit, the department will return the unused ERCs to the ERC Registry.

231-6.5 Lowest achievable emission rate, LAER.

(a) For a proposed NSR major modification, LAER is required for each emission source which emits the applicable nonattainment contaminant.

231-6.6 Emission offset requirements.

(a) Emission offset applicability. For a NSR major modification, the project emission potential must be offset.

(b) Offset ratio.

(1) An emission offset of VOC or NO_x must exceed the corresponding project emission potential, subsequent to application of LAER, by the applicable offset ratio specified in Subpart 231 13 of this Part. A greater offset ratio may be required, on a case by case basis, to provide an acceptable contribution demonstration as set forth in this section.

(2) An emission offset of PM 10 or PM-2.5 must at least equal (offset ratio of one to one or greater) the corresponding project emission potential (subsequent to application of LAER), as indicated in Subpart 231-13 of this Part. A greater offset ratio may be required to provide a net air quality benefit as set forth in this section.

(1) For NO_x, PM-10, and VOC emissions, ERCs must have physically occurred on or after November 15, 1990 but need not be contemporaneous;

(2) For PM-2.5 emissions, ERCs must have physically occurred on or after April 5, 2005 but need not be contemporaneous;

(3) An ERC, or portion thereof, must be established in the permit for the proposed NSR major modification for which the reduction is used.

(d) Net air quality benefit and emission offset location for PM 10 or PM-2.5. An emission offset of PM 10 or PM-2.5 must meet the following requirements:

(1) Contribution demonstration. An emission offset may be obtained from the same nonattainment area in which a proposed NSR major modification is to be located. An emission offset may also be obtained from other nonattainment areas of equal or higher classification if emissions from such other areas contribute to a violation of the NAAQS for PM 10 or PM-2.5 in the nonattainment area where the proposed NSR major modification is to be located.

(2) Net air quality benefit demonstration. As part of a permit application, the applicant must submit an air quality impact evaluation in accordance with department's policy document on air quality impact analysis provisions. The ambient air quality impact analysis must demonstrate that:

(i) the net impact of the proposed emissions increase and the emission offset provides for a net benefit, on balance, in the area affected by the proposed NSR major modification; and

(ii) for PM-10 only, the net impact in no case exceeds an applicable significant impact level set forth in Section 231 12.6 of this Part.

(e) Ozone nonattainment and emission offset location. The department's policy document on air quality impact analysis must be used by an applicant to find default acceptable VOC or NO_x offset source locations within New York State or to perform a case specific contribution demonstration. An emission offset of VOC or NO_x is subject to the following:

(1) Proposed NSR major modification located in an ozone nonattainment area.

(i) Intrastate offset sources. An emission offset of VOC or NO_x be obtained from:

(a) the same ozone nonattainment area, or

(ii) Interstate offset sources. An emission offset may be obtained from other ozone nonattainment areas of equal or higher classification in another state, if emissions from such other areas contribute to a violation of the NAAQS for ozone in the nonattainment area where the proposed NSR major modification is to be located and an interstate reciprocal trading agreement is in place. The department's policy document on an air quality impact analysis may be used by an applicant to perform a case specific contribution demonstration.

(2) Proposed NSR major modification located in an attainment area of the state within the ozone transport region. An emission offset of VOC or NO_x may be obtained from any location within the ozone transport region. Such an offset may also be obtained from another state in the ozone transport region, provided that an interstate reciprocal trading agreement is in place.

231-6.7 Internal offset requirements, severe ozone nonattainment area only.

This section represents a mechanism for avoiding a determination of applicability of this Part, for emissions of VOC or NO_x in the severe ozone nonattainment area only, in those instances where an NSR major modification is proposed at an existing major facility and a net emission increase determination of non-applicability is not possible.

(a) Internal offset applicability. An internal offset shall be considered for purposes of determining applicability or degree of control required under Section 231-6.1(d)(1) or (2) of this Part for a proposed NSR major modification.

(b) Use of a NO_x or VOC ERC as part of an internal offset. An ERC shall meet the following conditions to be used as part of an internal offset:

(1) An ERC shall come from an emission source within the same existing major facility as a proposed NSR major modification.

(2) An ERC shall have physically occurred on or after November 15, 1990, but need not be contemporaneous with a proposed NSR major modification for which the reduction is used.

(3) An ERC, or portion thereof, shall be described as a special condition in the permit for the proposed NSR major modification for which the reduction is used.

Subpart 231-7 New Major Facilities and Modifications to Existing Non-major Facilities in Attainment Areas (Prevention of Significant Deterioration)

Section

231-7.1 Applicability
231-7.2 Pre-application analysis
231-7.3 Permit application content
231-7.4 General requirements
231-7.5 Permit content and terms of issuance
231-7.6 Best available control technology (BACT)

231-7.1 Applicability.

(a) The requirements of this Subpart apply in attainment areas of the State to the construction and/or operation of:

(1) any proposed facility which has the potential to emit a regulated NSR contaminant in an amount that equals or exceeds the applicable major facility threshold, in Table 5 of Subpart 231-13 of this Part, for that contaminant; or

(2) a modification to an existing non-major facility which has a project emission potential for any regulated NSR contaminant that equals or exceeds the applicable major facility threshold, in Table 5 of Subpart 231-13 of this Part, for that contaminant.

(b) An existing non-major facility that is located in an attainment area of the State which proposes a modification that has a project emission potential for any regulated NSR contaminant that does not equal or exceed the applicable major facility threshold, in Table 5 of Subpart 231-13 of this Part, but would result in the facility becoming a major facility for such contaminant, is not subject to review under this Subpart. However, the facility owner or operator must apply for and obtain a permit in accordance with Part 201 of this Title and the permit must contain an emission limit(s) equal to the potential to emit of the emission source(s) affected by the modification.

231-7.2 Pre-application analysis.

Prior to submitting a permit application, the facility owner or operator must comply with the requirements of Section 231-12.3 (Pre-application analysis for Subparts 231-7 and 231-8) of this Part.

231-7.3 Permit application content.

(a) Air quality impact analyses according to Subpart 231-12 of this Part.

(b) A BACT review in accordance with Section 231-7.6 of this Part.

(c) Source impact analysis. The applicant must demonstrate according to the provisions of Subpart 231-12 (Ambient Air Quality Impact Analysis) of this Part that allowable emission increases from the proposed new or modified facility, in conjunction with all other applicable emissions increases or reductions (including secondary emissions), would not cause or significantly contribute to air pollution in violation of:

(1) any national ambient air quality standard in any air quality control region.

(2) any applicable maximum allowable increase over the baseline concentration in any area.

(3) any other applicable requirements identified in Subpart 231-12, and Paragraph 231-7.4(f)(3) of this Part including visibility and Air Quality Related Value (AQRV) analyses for Federal Class I areas, as applicable.

(d) Source information. The applicant must submit all information necessary to perform any analysis or make any determination required under this section and Subpart 231-12 of this Part, including:

(1) a detailed description as to what system of continuous emission reduction is planned for the facility, emission estimates, and any other information necessary to determine that best available control technology would be applied.

(2) information on the air quality impacts, and the nature and extent of any or all general commercial, residential, industrial, and other growth which has occurred since August 7, 1977, in the area the facility would affect, upon request of the department.

(3) a demonstration of the stack height, consistent with good engineering practice pursuant to 40 CFR 51.100(ii) and Section 231-7.4(e) of this Part.

(e) Additional impact analyses.

(1) The owner or operator must provide an analysis of the impairment to visibility, soils and vegetation that would occur as a result of the proposed new or modified facility, and general commercial, residential, industrial and other growth associated with the proposed new or modified facility. The owner or operator does not have to provide an analysis of the impact on vegetation if the vegetation has no ecological or significant commercial or recreational value.

(2) The owner or operator must provide an analysis of the air quality impact projected for the area as a result of general commercial, residential, industrial and other growth associated with the proposed new or modified facility.

231-7.4 General requirements.

The following provisions are also applicable for the review of applications under this Subpart.

(a) Ambient air increments. Concentration limitations necessary to assure that in areas designated as Federal Class I, Class II, or Class III, increases in any regulated NSR contaminant concentration over the baseline concentration do not exceed those listed in Subpart 231-12 of this Part.

(b) Ambient air ceilings. For any regulated NSR contaminant for a period of exposure, no concentration of that regulated NSR contaminant is allowed to exceed the lower of the following:

(1) The concentration permitted under the national secondary ambient air quality standard, or

(2) The concentration permitted under the national primary ambient air quality standard.

(1) All areas of the State are designated Class II as identified in department policy documents, but may be redesignated as provided in this subdivision.

(2) The following areas may be redesignated only as Federal Class I:

(i) An area which as of August 7, 1977, exceeded 10,000 acres in size and was a national monument, a national primitive area, a national preserve, a national recreational area, a national wild and scenic river, a national wildlife refuge, a national lakeshore or seashore; and

(ii) A national park or national wilderness area established after August 7, 1977, which exceeds 10,000 acres in size.

(3) The State may submit to the administrator a proposal to redesignate areas in the State as Class I according to the provisions established by 40 CFR Part 51.166.

(d) Exclusions from increment consumption.

(1) The following concentrations must be excluded in determining compliance with the maximum allowable ambient air increment:

(i) Concentrations attributable to the increase in emissions from facilities which have converted from the use of petroleum products, natural gas, or both by reason of an order in effect under section 2 (a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding Federal legislation) over the emissions from such facilities before the effective date of such an order.

(ii) Concentrations attributable to the increase in emissions from facilities which have converted from using natural gas by reason of any applicable natural gas curtailment plan in effect pursuant to the Federal Power Act (or any other superseding federal legislation) over the emissions from such facilities before the effective date of such plan.

(iii) Concentrations attributable to the increase in emissions from construction of other temporary emission related activities at the facility.

(iv) Increase in concentrations attributable to new facilities outside the United States over the concentrations attributable to existing facilities which are included in the baseline concentration.

(v) For Subparagraphs (i) and (ii) above, no exclusion of such concentrations applies more than two years after the effective date which is applicable. If both such order and plan are applicable, no such exclusion applies more than five years after the later of such effective dates.

(2) Concentrations attributable to the temporary increase in emissions of SO₂, PM, or NO_x from facilities which are limited to less than one year in duration are excluded, provided the department:

(i) approves the time over which the temporary emissions increase of SO₂, PM, or NO_x would occur.

(ii) specifies that the time period for excluding certain contributions in accordance with this subdivision, is not renewable.

(iii) allows no emissions increase from a facility which would:

(a) impact a Federal Class I area or an area where an applicable increment is known to be violated; or

(b) cause a violation or contribute to a known violation of a national ambient air quality standard.

(iv) requires limitations to be in effect at the end of the time period specified in accordance with this subdivision, which would ensure that the emissions levels from facilities would not exceed those levels occurring from such facilities before the exclusion was approved.

(e) Stack heights. The degree of emission limitation required for control of any regulated NSR contaminant under this Subpart must not be affected in any manner by:

(1) a stack height, not in existence before December 31, 1970, as exceeds good engineering practice, pursuant to 40 CFR 51.100(ii); or

(2) any other dispersion technique not implemented before December 31, 1970.

(f) Requirements for sources impacting Federal Class I areas:

(1) Notice to EPA and Federal Land Manager. The department or the applicant, at the request of the department, shall submit a copy of the permit application and all relevant information to the EPA Region 2 office and the Federal Land Manager within 30 days of receipt of the application.

(2) Federal Land Manager. The Federal Land Manager and the Federal official charged with direct responsibility for management of such lands have an affirmative responsibility to protect the AQRVs (including visibility) of such lands and to consider, in consultation with the department, whether a proposed new or modified facility will have an adverse impact on such values.

(3) Visibility analysis and AQRV analysis. The department must consider any analysis performed by the Federal Land Manager, provided prior to the date of publication of the draft permit that shows that a proposed new major facility may have an adverse impact on visibility or other AQRV in any Federal Class I area. Where the department finds that such an analysis does not demonstrate to the satisfaction of the department that an adverse impact on visibility or other AQRV will result in the Federal Class I area, the department must, in the notice of public hearing on the permit application, either explain its decision or give notice as to where the explanation can be obtained.

(4) Denial of a permit based on adverse impact on AQRVs. The Federal Land Manager of any such lands may demonstrate to the department that the emissions from a proposed new or modified facility would have an adverse impact on the AQRVs (including visibility) of those lands, notwithstanding that the change in air quality resulting from emissions from the proposed new or modified facility would not cause or significantly contribute to concentrations which would exceed the maximum allowable increases for a Federal Class I area. If the department concurs with such demonstration, then it must not issue the permit.

(5) Federal Class I variances. The owner or operator of a proposed new or modified facility may demonstrate to the Federal Land Manager that the emissions from the new or modified facility would have no adverse impact on the air quality related values (including visibility) of any such lands, notwithstanding that the change in air quality resulting from emissions from the new or modified facility would cause or contribute to concentrations which would exceed the maximum allowable increases for a Federal Class I area. If the Federal Land Manager concurs with such demonstration and so certifies, provided that the applicable requirements of this section are otherwise met, the State may issue the permit with such emission limitations as may be necessary to assure that emissions of SO₂, PM, and NO_x would not exceed the maximum allowable increases over minor source baseline concentration as listed in Table 7 of Subpart 231-13 of this Part.

(6) SO₂ variance by Governor of the Federal Class I area with Federal Land Manager's concurrence. The owner or operator of a proposed new or modified facility which cannot be approved under Paragraph 231-7.4(f)(4) of this Subdivision may demonstrate to the Governor of the Federal Class I area that the new or modified facility cannot be constructed by reason of any maximum allowable increase for SO₂ for a period of 24 hours or less applicable to any Federal Class I area, and that a variance under this clause would not adversely affect the air quality related values of the area (including visibility). The Governor of the Federal Class I area, after consideration of the Federal Land Manager's recommendation (if any) and subject to his concurrence, may, after notice and public hearing, grant a variance from such maximum allowable increase. If such variance is granted, the department will issue a permit to the new or modified facility, provided that the applicable requirements of this Subpart are otherwise met.

231-7.5 Permit content and terms of issuance.

The permit content and terms of issuance are set forth generally in Subpart 231-11. In addition, the following emission limitations, as applicable, shall be established in a permit:

(a) The potential to emit of a proposed facility.

(b) The potential to emit of a modification at an existing non-major facility which has a project emission potential for any regulated NSR contaminant that exceeds the major facility threshold for that contaminant.

231-7.6 Best available control technology, BACT.

(a) For a proposed new or modified facility, BACT is required for each emission source that is part of the proposed new facility or modification, for all regulated NSR contaminants to be emitted by the proposed new facility or modification which equal or exceed the applicable significant project threshold listed in Table 6 of Subpart 231-13 of this Part.

(b) For phased construction projects, the determination of BACT must be reviewed and modified as appropriate at the latest reasonable time which occurs no later than 18 months prior to commencement of construction of each independent phase of the project. At such time, the applicant may be required to demonstrate the adequacy of any previous determination of BACT for the new or modified facility.

(c) In establishing the final BACT limit, the department may consider any new information, including recent permit decisions, or public comment received, subsequent to the submittal of a complete application.

(d) BACT will not be established in final form until the final permit is issued.

Subpart 231-8 Modifications to Existing Major Facilities in Attainment Areas (Prevention of Significant Deterioration)

Section

231-8.1 Applicability
231-8.2 Netting
231-8.3 Pre-application analysis
231-8.4 Permit application content
231-8.5 General requirements
231-8.6 Permit content and terms of issuance
231-8.7 Best available control technology, BACT

231-8.1 Applicability.

The requirements of this Subpart apply to the construction and/or operation of any proposed modification at an existing major facility located in an attainment area of the State as follows:

(a) For a modification with a project emission potential, calculated utilizing projected actual emissions, which does not equal or exceed the applicable significant project threshold in Table 6 of Subpart 231-13 of this Part, the facility owner or operator must comply with the provisions of Section 231-11.2 of this Part.

(b) For a modification with a project emission potential which equals or exceeds the applicable significant project threshold in Table 6 of Subpart 231-13 of this Part, but does not result in a NSR major modification, the facility owner or operator must comply with the provisions of Section 231-8.2 of this Part.

(c) For a modification which the facility determines will result in a NSR major modification, the facility owner or operator must comply with the provisions of this Subpart as appropriate.

231-8.2 Netting.

(a) General requirements.

(1) A net emission increase determination shall be confined to the appropriate contemporaneous period for a proposed modification.

(2) A net emission increase determination will only be allowed at an existing major facility.

(3) Any creditable emission increase or ERC must be of the same class of regulated NSR contaminant.

(4) Any creditable emission increase or ERC which is used in a net emission increase determination must occur at the same major facility as the proposed modification.

(b) Permit requirements for netting. A facility owner or operator which proposes a modification that does not result in a significant net emission increase, must:

(1) apply for and obtain a permit which establishes an emission limit that equals the projected actual emissions or potential to emit, as appropriate, of the modification of each regulated NSR contaminant(s) which exceed(s) the applicable significant project threshold.

(2) apply for and obtain a permit which establishes the ERCs relied on for the net emission increase determination, if the ERCs are not already approved by the department.

(3) submit a Use of Emission Reduction Credits Form (duly completed and signed by the applicant) for each source of ERCs to be used for netting.

(4) apply for and obtain a permit which complies with any additional requirements of Subpart 231-11 of this Part.

(3) Submit an application requesting modification of the permit for the prior modification which reflects applicability of this Subpart. The facility owner or operator may not begin actual construction of the prior modification or begin operation until the department approves the application and issues a permit which incorporates the requirements of this Subpart.

231-8.3 Pre-application analysis.

Prior to submitting a permit application, the facility owner or operator must comply with the requirements of Section 231-12.3 (Pre-application analysis for Subparts 231-7 and 231-8) of this Part.

231-8.4 Permit application content.

The information required in a permit application is set forth in Part 201 of this Title and generally in Subpart 231-11 of this Part. In addition, the following information must be included with the permit application for a NSR major modification, at the time the application is submitted to the department, unless otherwise specified:

(a) An air quality impact analyses according to Subpart 231-12 of this Part.

(b) A BACT review in accordance with Section 231-8.7 of this Part.

(c) Source impact analysis. The applicant must demonstrate according to the provisions of Subpart 231-12 (Ambient Air Quality Impact Analysis) of this Part that allowable emission increases from the proposed modification, in conjunction with all other applicable emissions increases or reductions (including secondary emissions), would not cause or significantly contribute to air pollution in violation of:

(1) any national ambient air quality standard in any air quality control region.

(2) any applicable maximum allowable increase over the baseline concentration in any area.

(3) any other applicable requirements identified in Subpart 231-12, and Paragraph 231-8.5(f)(3) of this Part including visibility and Air Quality Related Value (AQRV) analyses for Federal Class I areas, as applicable.

(d) Source information. The applicant must submit all information necessary to perform any analysis or make any determination required under this section and Subpart 231-12 of this Part, including:

(3) a demonstration of the stack height, consistent with good engineering practice pursuant to 40 CFR 51.100(ii) and Section 231-8.5(e) of this Part.

(e) Additional impact analyses.

(1) The owner or operator must provide an analysis of the impairment to visibility, soils and vegetation that would occur as a result of the proposed modification, and general commercial, residential, industrial and other growth associated with the proposed modification. The owner or operator does not have to provide an analysis of the impact on vegetation if the vegetation has no ecological or significant commercial or recreational value.

231-8.5 General requirements.

The following provisions are also applicable for the review of applications under this Subpart.

(b) Ambient air ceilings. For any regulated NSR contaminant for a period of exposure, no concentration of that regulated NSR contaminant is allowed to exceed the lower of the following:

(1) The concentration permitted under the national secondary ambient air quality standard, or

(2) The concentration permitted under the national primary ambient air quality standard.

(1) All areas of the State are designated Class II as identified in department policy documents, but may be redesignated as provided in this Subdivision.

(2) The following areas may be redesignated only as Federal Class I:

(ii) A national park or national wilderness area established after August 7, 1977, which exceeds 10,000 acres in size.

(3) The State may submit to the administrator a proposal to redesignate areas in the State as Class I according to the provisions established by 40 CFR Part 51.166.

(d) Exclusions from increment consumption.

(1) The following concentrations must be excluded in determining compliance with the maximum allowable ambient air increment:

(i) Concentrations attributable to the increase in emissions from facilities which have converted from the use of petroleum products, natural gas, or both by reason of an order in effect under section 2 (a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding federal legislation) over the emissions from such facilities before the effective date of such an order.