1.
Definitions. For purposes of this section:
a. "Affected source" means any source that
includes one or more affected units.
b. "Affected state" means any state that is
contiguous to North Dakota whose air quality may be affected by a source
subject to a proposed title V permit, permit modification, or permit renewal or
which is within fifty miles [80.47 kilometers] of the permitted
source.
c. "Affected unit" means a
unit that is subject to any acid rain emissions reduction requirement or acid
rain emissions limitation under title IV of the federal Clean Air
Act.
d. "Alternative operating
scenario (AOS)" means a scenario authorized in a title V permit that involves a
change at the title V source for a particular emissions unit, and that either
results in the unit being subject to one or more applicable requirements which
differ from those applicable to the emissions unit prior to implementation of
the change or renders inapplicable one or more requirements previously
applicable to the emissions unit prior to implementation of the
change.
e. "Applicable requirement"
means all of the following as they apply to emissions units at a source that is
subject to requirements of this section (including requirements that have been
promulgated or approved by the United States environmental protection agency
through rulemaking at the time of issuance but have future-effective compliance
dates):
(1) Any standard or other requirement
provided for in the North Dakota state implementation plan approved or
promulgated by the United States environmental protection agency through
rulemaking under title I of the federal Clean Air Act that implements the
relevant requirements of the federal Clean Air Act, including any revisions to
that plan.
(2) Any term or
condition of any permit to construct issued pursuant to this chapter.
(3) Any standard or other requirement under
section 111 including section 111(d) of the federal Clean Air Act.
(4) Any standard or other requirement under
section 112 of the federal Clean Air Act including any requirement concerning
accident prevention under section 112(r)(7) of the federal Clean Air
Act.
(5) Any standard or other
requirement of the acid rain program under title IV of the federal Clean Air
Act.
(6) Any requirements
established pursuant to section 504(b) or section 114(a)(3) of the federal
Clean Air Act.
(7) Any standard or
other requirement governing solid waste incineration, under section 129 of the
federal Clean Air Act.
(8) Any
standard or other requirement for consumer and commercial products, under
section 183(e) of the federal Clean Air Act.
(9) Any standard or other requirement for
tank vessels under section 183(f) of the federal Clean Air Act.
(10) Any standard or other requirement of the
program to control air pollution from outer continental shelf sources, under
section 328 of the federal Clean Air Act.
(11) Any standard or other requirement of the
regulations promulgated to protect stratospheric ozone under title VI of the
federal Clean Air Act, unless the administrator of the United States
environmental protection agency has determined that such requirements need not
be contained in a title V permit.
(12) Any national ambient air quality
standard or increment or visibility requirement under part C of title I of the
federal Clean Air Act, but only as it would apply to temporary sources
permitted pursuant to section 504(e) of the federal Clean Air Act.
f. "Approved replicable
methodology (ARM)" means title V permit terms that:
(1) Specify a protocol which is consistent
with and implements an applicable requirement, or requirement of this section,
such that the protocol is based on sound scientific or mathematical principles,
or both, and provides reproducible results using the same inputs; and
(2) Require the results of that protocol to
be recorded and used for assuring compliance with such applicable requirement,
any other applicable requirement implicated by implementation of the approved
replicable methodology, or requirement of this section, including where an
approved replicable methodology is used for determining applicability of a
specific requirement to a particular change.
g. "Designated representative" means a
responsible natural person authorized by the owners and operators of an
affected source and of all affected units at the source, as evidenced by a
certificate of representation submitted in accordance with subpart B of 40 CFR
72, to represent and legally bind each owner and operator, as a matter of
federal law, in matters pertaining to the acid rain program. Whenever the term
"responsible official" is used in this section, or in any other regulations
implementing title V of the federal Clean Air Act, it shall be deemed to refer
to the "designated representative" with regard to all matters under the acid
rain program.
h. "Draft permit"
means the version of a permit for which the department offers public
participation or affected state review.
i. "Emergency" means any situation arising
from sudden and reasonably unforeseeable events beyond the control of the
source, including acts of God, which situation requires immediate corrective
action to restore normal operation, and that causes the source to exceed a
technology-based emission limitation under the title V permit to operate, due
to unavoidable increases in emissions attributable to the emergency. An
emergency shall not include noncompliance to the extent caused by improperly
designed equipment, lack of preventive maintenance, careless or improper
operation, or operator error.
j.
"Emissions allowable under the permit" means a federally enforceable permit
term or condition determined at issuance to be required by an applicable
requirement that establishes an emissions limit (including a work practice
standard) or a federally enforceable emissions cap that the source has assumed
to avoid an applicable requirement to which the source would otherwise be
subject.
k. "Emissions unit" means
any part or activity of a stationary source that emits or has the potential to
emit any regulated air contaminant or any contaminant listed under section
112(b) of the federal Clean Air Act. This term does not alter or affect the
definition of unit for purposes of title IV of the federal Clean Air
Act.
l. "Environmental protection
agency" or the "administrator" means the administrator of the United States
environmental protection agency or the administrator's designee.
m. "Federal Clean Air Act" means the federal
Clean Air Act, as amended [
42 U.S.C.
7401 et seq.].
n. "Final permit" means the version of a
title V permit issued by the department that has completed all review
procedures required in this section.
o. "Fugitive emissions" are those emissions
which could not reasonably pass through a stack, chimney, vent, or other
functionally equivalent opening.
p.
"General permit" means a title V permit to operate that meets the requirements
of subdivision d of subsection 5.
q. "Major source" means any stationary source
(or any group of stationary sources that are located on one or more contiguous
or adjacent properties, and are under common control of the same person (or
persons under common control)) belonging to a single major industrial grouping
and that are described in paragraph 1 or 2. For the purposes of defining "major
source", a stationary source or group of stationary sources shall be considered
part of a single industrial grouping if all of the contaminant emitting
activities at such source or group of sources on contiguous or adjacent
properties belong to the same major group (i.e., all have the same two-digit
code) as described in the standard industrial classification manual, 1987.
(1) A major source under section 112 of the
federal Clean Air Act, which is defined as:
(a) For contaminants other than
radionuclides, any stationary source or group of stationary sources located
within a contiguous area and under common control that emits or has the
potential to emit, in the aggregate, ten tons [9.07 metric tons] per year (tpy)
or more of any hazardous air contaminant which has been listed pursuant to
section 112(b) of the federal Clean Air Act, twenty-five tons [22.67 metric
tons] per year or more of any combination of such hazardous air contaminants,
or such lesser quantity as the administrator of the United States environmental
protection agency may establish by rule. Notwithstanding the preceding
sentence, emissions from any oil or gas exploration or production well (with
its associated equipment) and emissions from any pipeline compressor pump
station shall not be aggregated with emissions from other similar units,
whether or not such units are in a contiguous area or under common control, to
determine whether such units or stations are major sources.
(b) For radionuclides, "major source" shall
have the meaning specified by the administrator of the United States
environmental protection agency by rule.
(2) A major stationary source of air
contaminants, that directly emits or has the potential to emit, one hundred
tons [90.68 metric tons] per year or more of any air contaminant subject to
regulation (including any major source of fugitive emissions of any such
contaminant, as determined by rule by the administrator of the United States
environmental protection agency). For purposes of this definition, air
contaminant subject to regulation does not include greenhouse gases as defined
in title 40 Code of Federal Regulations 86.1818-12(a). The fugitive emissions
of a stationary source shall not be considered in determining whether it is a
major stationary source for the purposes of this section, unless the source
belongs to one of the following categories of stationary source:
(a) Coal cleaning plants (with thermal
dryers).
(b) Kraft pulp
mills.
(c) Portland cement
plants.
(d) Primary zinc
smelters.
(e) Iron and steel
mills.
(f) Primary aluminum ore
reduction plants.
(g) Primary
copper smelters.
(h) Municipal
incinerators capable of charging more than two hundred fifty tons [226.80
metric tons] of refuse per day.
(i)
Hydrofluoric, sulfuric, or nitric acid plants.
(j) Petroleum refineries.
(k) Lime plants.
(l) Phosphate rock processing
plants.
(m) Coke oven
batteries.
(n) Sulfur recovery
plants.
(o) Carbon black plants
(furnace process).
(p) Primary lead
smelters.
(q) Fuel conversion
plants.
(r) Sintering
plants.
(s) Secondary metal
production plants.
(t) Chemical
process plants.
(u) Fossil-fuel
boilers (or combination thereof) totaling more than two hundred fifty million
British thermal units per hour heat input.
(v) Petroleum storage and transfer units with
a total storage capacity exceeding three hundred thousand barrels.
(w) Taconite ore processing plants.
(x) Glass fiber processing plants.
(y) Charcoal production plants.
(z) Fossil-fuel-fired steam electric plants
of more than two hundred fifty million British thermal units per hour heat
input.
(aa) Any other stationary
source category which as of August 7, 1980, is being regulated under section
111 or 112 of the federal Clean Air Act.
r. "Permit modification" means a revision to
a title V permit that meets the requirements of subdivision e of subsection
6.
s. "Permit program costs" means
all reasonable (direct and indirect) costs required to develop and administer a
permit program, under this section (whether such costs are incurred by the
department or other state or local agencies that do not issue permits directly,
but that support permit issuance or administration).
t. "Permit revision" means any permit
modification or administrative permit amendment.
u. "Potential to emit" means the maximum
capacity of a stationary source to emit any air contaminant under its physical
and operational design. Any physical or operational limitation on the capacity
of a source to emit an air contaminant, including air pollution control
equipment and restrictions on hours of operation or on the type or amount of
material combusted, stored, or processed, shall be treated as part of its
design if the limitation is enforceable by the administrator of the United
States environmental protection agency and the department.
v. "Proposed permit" means the version of a
permit that the department proposes to issue and forwards to the administrator
of the United States environmental protection agency for review.
w. "Regulated air contaminant" means the
following:
(1) Nitrogen oxides or any volatile
organic compounds.
(2) Any
contaminant for which a national ambient air quality standard has been
promulgated.
(3) Any contaminant
that is subject to any standard promulgated under section 111 of the federal
Clean Air Act.
(4) Any class I or
II substance subject to a standard promulgated under or established by title VI
of the federal Clean Air Act.
(5)
Any contaminant subject to a standard promulgated under section 112 or other
requirements established under section 112 of the federal Clean Air Act,
including sections 112(g), (j), and (r) of the federal Clean Air Act, including
the following:
(a) Any contaminant subject to
requirements under section 112(j) of the federal Clean Air Act. If the
administrator fails to promulgate a standard by the date established pursuant
to section 112(e) of the federal Clean Air Act, any contaminant for which a
subject source would be major shall be considered to be regulated on the date
eighteen months after the applicable date established pursuant to section
112(e) of the federal Clean Air Act; and
(b) Any contaminant for which the
requirements of section 112(g)(2) of the federal Clean Air Act have been met,
but only with respect to the individual source subject to section 112(g)(2) of
the federal Clean Air Act requirement.
x. "Regulated contaminant" for fee
calculation, which is used only for chapter 33.1-15-23, means any "regulated
air contaminant" except the following:
(1)
Carbon monoxide.
(2) Any
contaminant that is a regulated air contaminant solely because it is a class I
or II substance subject to a standard promulgated under or established by title
VI of the federal Clean Air Act.
(3) Any contaminant that is a regulated air
contaminant solely because it is subject to a standard or regulation under
section 112(r) of the federal Clean Air Act.
(4) Greenhouse gases.
y. "Renewal" means the process by which a
permit is reissued at the end of its term.
z. "Responsible official" means one of the
following:
(1) For a corporation: a
president, secretary, treasurer, or vice president of the corporation in charge
of a principal business function, or any other person who performs similar
policy or decisionmaking functions for the corporation, or a duly authorized
representative of such person if the representative is responsible for the
overall operation of one or more manufacturing, production, or operating
facilities applying for or subject to a permit and either:
(a) The facilities employ more than two
hundred fifty persons or have gross annual sales or expenditures exceeding
twenty-five million dollars (in second quarter 1980 dollars).
(b) The delegation of authority to such
representatives is approved in advance by the department.
(2) For a partnership or sole proprietorship:
a general partner or the proprietor, respectively.
(3) For a municipality, state, federal, or
other public agency: either a principal executive officer or ranking elected
official. For the purposes of this section, a principal executive officer of a
federal agency includes the chief executive officer having responsibility for
the overall operations of a principal geographic unit of the agency (e.g., a
regional administrator of the United States environmental protection
agency).
(4) For affected sources:
(a) The designated representative insofar as
actions, standards, requirements, or prohibitions under title IV of the federal
Clean Air Act or the regulations promulgated thereunder are
concerned.
(b) The designated
representative for any other purposes under this section.
aa. "Section 502(b)(10) changes"
are changes that contravene an express permit term. Such changes do not include
changes that would violate applicable requirements or contravene federally
enforceable permit terms and conditions that are monitoring (including test
methods), recordkeeping, reporting, or compliance certification
requirements.
bb. "Stationary
source" means any building, structure, facility, or installation that emits or
may emit any regulated air contaminant or any contaminant listed under section
112(b) of the federal Clean Air Act.
cc. "Subject to regulation" means, for any
air contaminant, that the air contaminant is subject to either a provision in
the federal Clean Air Act, or a nationally applicable regulation codified by
the administrator of the United States environmental protection agency in title
40 Code of Federal Regulations chapter I, subchapter C, that requires actual
control of the quantity of emissions of that air contaminant, and that such a
control requirement has taken effect and is operative to control, limit, or
restrict the quantity of emissions of that air contaminant release from the
regulated activity.
dd. "Title V
permit to operate or permit" (unless the context suggests otherwise) means any
permit or group of permits covering a source that is subject to this section
that is issued, renewed, amended, or revised pursuant to this
section.
ee. "Title V source" means
any source subject to the permitting requirements of this section, as provided
in subsection 2.
4.
Permit
applications.
a. Duty to apply. For
each title V source, the owner or operator shall submit a timely and complete
permit application in accordance with this subdivision.
(1) Timely application.
(a) A timely application for a source
applying for a title V permit for the first time is one that is submitted
within one year of the source becoming subject to this section.
(b) Title V sources required to meet the
requirements under section 112(g) of the federal Clean Air Act, or to have a
permit to construct under section 33.1-15-14-02, shall file a complete
application to obtain the title V permit or permit revision within twelve
months after commencing operation. Where an existing title V permit would
prohibit such construction or change in operation, the source must obtain a
permit revision before commencing operation.
(c) For purposes of permit renewal, a timely
application is one that is submitted at least six months, but not more than
eighteen months, prior to the date of permit expiration.
(2) Complete application. To be deemed
complete, an application must provide all information required pursuant to
subdivision c, except that applications for a permit revision need supply such
information only if it is related to the proposed change. Information required
under subdivision c must be sufficient to evaluate the subject source and its
application and to determine all applicable requirements. A responsible
official must certify the submitted information consistent with subdivision d.
Unless the department determines that an application is not complete within
sixty days of receipt of the application, such application shall be deemed to
be complete, except as otherwise provided in paragraph 3 of subdivision a of
subsection 6. If, while processing an application that has been determined or
deemed to be complete, the department determines that additional information is
necessary to evaluate or take final action on that application, it may request
such information in writing and set a reasonable deadline for a response. The
source's ability to operate without a permit, as set forth in subdivision b of
subsection 6, shall be in effect from the date the application is determined or
deemed to be complete until the final permit is issued, provided that the
applicant submits any requested additional information by the deadline
specified by the department.
(3)
Confidential information. If a source has submitted information to the
department under a claim of confidentiality, the source must also submit a copy
of such information directly to the administrator of the United States
environmental protection agency when directed to do so by the
department.
b. Duty to
supplement or correct application. Any applicant who fails to submit any
relevant facts or who has submitted incorrect information in a permit
application shall, upon becoming aware of such failure or incorrect submittal,
promptly submit such supplementary facts or corrected information. In addition,
an applicant shall provide additional information as necessary to address any
requirements that become applicable to the source after the date it filed a
complete application but prior to release of a draft permit.
c. Standard application form and required
information. All applications for a title V permit to operate shall be made on
forms supplied by the department. Information as described below for each
emissions unit at a title V source shall be included in the application.
Detailed information for emissions units or activities that have the potential
to emit less than the following quantities of air contaminants (insignificant
units or activities) need not be included in permit applications:
Particulate: 2 tons [1.81 metric tons] per year.
Inhalable particulate: 2 tons [1.81 metric tons] per
year.
Sulfur dioxide: 2 tons [1.81 metric tons] per year.
Hydrogen sulfide: 2 tons [1.81 metric tons] per year.
Carbon monoxide: 2 tons [1.81 metric tons] per year.
Nitrogen oxides: 2 tons [1.81 metric tons] per year.
Ozone: 2 tons [1.81 metric tons] per year.
Reduced sulfur compounds: 2 tons [1.81 metric tons] per
year.
Volatile organic compounds: 2 tons [1.81 metric tons].
All other regulated contaminants including those in section
112(b) of the federal Clean Air Act: 0.5 tons [0.45 metric tons] per
year.
Where a contaminant could be placed in more than one
category, the smallest emission level applies.
However, for insignificant activities or emissions units, a
list of such activities or units must be included in the application. An
applicant may not omit information needed to determine the applicability of, or
to impose, any applicable requirement, or to evaluate the fee amount required
under section 33.1-15-23-04. The application, shall, as a minimum, include the
elements specified below:
(1)
Identifying information, including company name and address (or plant name and
address if different from the company name), owner's name and agent, and
telephone number and names of plant site manager or contact.
(2) A description of the source's processes
and products (by Standard Industrial Classification Code) including those
associated with any proposed alternative operating scenario identified by the
source.
(3) The following
emissions-related information:
(a) All
emissions of contaminants for which the source is major, and all emissions of
regulated air contaminants. A permit application shall describe all emissions
of regulated air contaminants emitted from any emissions unit, except when such
units are exempted under this subdivision.
(b) Identification and description of all
points of emissions described in subparagraph a in sufficient detail to
establish the basis for fees and applicability of requirements of the federal
Clean Air Act and this article.
(c)
Emissions rates in tons per year and in such terms as are necessary to
establish compliance consistent with the applicable standard reference test
method. For emissions units subject to an annual emissions cap, tons per year
can be reported as part of the aggregate emissions associated with the cap,
except where more specific information is needed, including where necessary to
determine or assure compliance with, or both, an applicable
requirement.
(d) Fuels, fuel use,
raw materials, production rates, and operating schedules.
(e) Identification and description of air
pollution control equipment and compliance monitoring devices or
activities.
(f) Limitations on
source operation affecting emissions or any work practice standards, when
applicable, for all regulated contaminants.
(g) Other information required by any
applicable requirement including information related to stack height
limitations developed pursuant to chapter 33.1-15-18.
(h) Calculations on which the information in
subparagraphs a through g is based.
(4) The following air pollution control
requirements:
(a) Citation and description of
all applicable requirements; and
(b) Description of or reference to any
applicable test method for determining compliance with each applicable
requirement.
(5) Other
specific information that may be necessary to implement and enforce other
applicable requirements of the federal Clean Air Act or of this article or to
determine the applicability of such requirements.
(6) An explanation of any proposed exemptions
from otherwise applicable requirements.
(7) Additional information as determined to
be necessary by the department to define proposed alternative operating
scenarios identified by the source pursuant to paragraph 9 of subdivision a of
subsection 5 or to define permit terms and conditions implementing any
alternative operating scenario under paragraph 9 of subdivision a of subsection
5 or implementing paragraph 2 of subdivision b of subsection 6, paragraph 3 of
subdivision b of subsection 6, paragraph 8 of subdivision a of subsection 5, or
paragraph 10 of subdivision a of subsection 5. The permit application shall
include documentation demonstrating that the source has obtained all
authorizations required under the applicable requirements relevant to any
proposed alternative operating scenarios, or a certification that the source
has submitted all relevant materials to the department for obtaining such
authorizations.
(8) A compliance
plan for all title V sources that contains all the following:
(a) A description of the compliance status of
the source with respect to all applicable requirements.
(b) A description as follows:
[1] For applicable requirements with which
the source is in compliance, a statement that the source will continue to
comply with such requirements.
[2]
For applicable requirements that will become effective during the permit term,
a statement that the source will meet such requirements on a timely
basis.
[3] For requirements for
which the source is not in compliance at the time of permit issuance, a
narrative description of how the source will achieve compliance with such
requirements.
[4] For applicable
requirements associated with a proposed alternative operating scenario, a
statement that the source will meet such requirements upon implementation of
the alternative operating scenario. If a proposed alternative operating
scenario would implicate an applicable requirement that will become effective
during the permit term, a statement that the source will meet such requirements
on a timely basis.
(c) A
compliance schedule as follows:
[1] For
applicable requirements with which the source is in compliance, a statement
that the source will continue to comply with such requirements.
[2] For applicable requirements that will
become effective during the permit term, a statement that the source will meet
such requirements on a timely basis. A statement that the source will meet in a
timely manner applicable requirements that become effective during the permit
term shall satisfy this provision, unless a more detailed schedule is expressly
required by the applicable requirement.
[3] A schedule of compliance for sources that
are not in compliance with all applicable requirements at the time of permit
issuance. Such a schedule shall include a schedule of remedial measures,
including an enforceable sequence of actions with milestones, leading to
compliance with any applicable requirements for which the source will be in
noncompliance at the time of permit issuance. This compliance schedule shall
resemble and be at least as stringent as that contained in any judicial consent
decree or administrative order to which the source is subject. Any such
schedule of compliance shall be supplemental to, and shall not sanction
noncompliance with, the applicable requirements on which it is based.
[4] For applicable requirements associated
with a proposed alternative operating scenario, a statement that the source
will meet such requirements upon implementation of the alternative operating
scenario. If a proposed alternative operating scenario would implicate an
applicable requirement that will become effective during the permit term, a
statement that the source will meet such requirements on a timely basis. A
statement that the source will meet in a timely manner applicable requirements
that become effective during the permit term will satisfy this provision,
unless a more detailed schedule is expressly required by the applicable
requirement.
(d) A
schedule for submission of certified progress reports no less frequently than
every six months for sources required to have a schedule of compliance to
remedy a violation.
(e) The
compliance plan content requirements specified in this paragraph shall apply
and be included in the acid rain portion of a compliance plan for an affected
source, except as specifically superseded by regulations promulgated under
title IV of the federal Clean Air Act with regard to the schedule and method or
methods the source will use to achieve compliance with the acid rain emissions
limitations.
(9)
Requirements for compliance certification, including the following:
(a) A certification of compliance with all
applicable requirements by a responsible official consistent with subdivision d
and section 114(a)(3) of the federal Clean Air Act;
(b) A statement of methods used for
determining compliance, including a description of monitoring, recordkeeping,
and reporting requirements and test methods;
(c) A schedule for submission of compliance
certifications during the permit term, to be submitted annually, or more
frequently if specified by the underlying applicable requirement; and
(d) A statement indicating the source's
compliance status with any applicable enhanced monitoring and compliance
certification requirements of the federal Clean Air Act.
(10) The use of nationally standardized forms
for acid rain portions of permit applications and compliance plans, as required
by regulations promulgated under title IV of the federal Clean Air
Act.
d. Any application
form, report, or compliance certification submitted pursuant to these rules
shall contain certification by a responsible official of truth, accuracy, and
completeness. This certification and any other certification required under
this section shall state that, based on information and belief formed after
reasonable inquiry, the statements and information in the document are true,
accurate, and complete.
5.
Permit content.
a. Standard permit requirements. Each permit
issued under this section shall include, as a minimum, the following elements:
(1) Emissions limitations and standards,
including those operational requirements and limitations that assure compliance
with all applicable requirements at the time of permit issuance. Such
requirements and limitations may include approved replicable methodologies
identified by the source in its title V permit application as approved by the
department, provided that no approved replicable methodology shall contravene
any terms needed to comply with any otherwise applicable requirement or
requirement of this section or circumvent any applicable requirement that would
apply as a result of implementing the approved replicable methodology.
(a) The permit must specify and reference the
origin of and authority for each term or condition, and identify any difference
in form as compared to the applicable requirement upon which the term or
condition is based.
(b) The permit
must state that, if an applicable requirement of the federal Clean Air Act is
more stringent than an applicable requirement of regulations promulgated under
title IV of the federal Clean Air Act, both provisions shall be incorporated
into the permit and shall be enforceable by the administrator of the United
States environmental protection agency and the department.
(c) If the state implementation plan allows a
determination of an alternative emissions limit at a title V source, equivalent
to that contained in the plan, to be made in the permit issuance, renewal, or
significant modification process, and the department elects to use such
process, any permit containing such equivalency determination shall contain
provisions to ensure that any resulting emissions limit has been demonstrated
to be quantifiable, accountable, enforceable, and based on replicable
procedures.
(2) Permit
duration. For all sources, the term of the permit may not exceed five years.
The permit expires on the date listed on the permit.
(3) Monitoring and related recordkeeping and
reporting requirements.
(a) Each permit shall
contain the following requirements with respect to monitoring:
[1] All monitoring and analysis procedures or
test methods required under applicable monitoring and testing requirements,
including subsection 10 and any procedures and methods promulgated pursuant to
sections 504(b) or 114(a)(3) of the federal Clean Air Act. If more than one
monitoring or testing requirement applies, the permit may specify a streamlined
set of monitoring or testing provisions provided the specified monitoring or
testing is adequate to assure compliance at least to the same extent as the
monitoring or testing applicable requirements that are not included in the
permit as a result of such streamlining;
[2] If the applicable requirement does not
require periodic testing or instrumental or noninstrumental monitoring (which
may consist of recordkeeping designed to serve as monitoring), periodic
monitoring sufficient to yield reliable data from the relevant time period that
are representative of the source's compliance with the permit, as reported
pursuant to subparagraph c. Such monitoring requirements shall assure use of
terms, test methods, units, averaging periods, and other statistical
conventions consistent with the applicable requirement. Recordkeeping
provisions may be sufficient to meet the requirements of this item;
and
[3] As necessary, requirements
concerning the use, maintenance, and, if appropriate, installation of
monitoring equipment or methods.
(b) With respect to recordkeeping, the permit
shall incorporate all applicable recordkeeping requirements and require, if
applicable, the following:
[1] Records of
required monitoring information that include the following:
[a] The date, place as defined in the permit,
and time of sampling or measurements;
[b] The dates analyses were
performed;
[c] The company or
entity that performed the analyses;
[d] The analytical techniques or methods
used;
[e] The results of such
analyses; and
[f] The operating
conditions as existing at the time of sampling or measurement;
[2] Retention of records
of all required monitoring data and support information for a period of at
least five years from the date of the monitoring sample, measurement, report,
or application. Support information includes all calibration and maintenance
records and all original strip-chart recordings for continuous monitoring
instrumentation, and copies of all reports required by the permit.
(c) With respect to
reporting, the permit shall incorporate all applicable reporting requirements
and require the following:
[1] Submittal of
reports of any required monitoring at least every six months. All instances of
deviations from permit requirements must be clearly identified in such reports.
All required reports must be certified by a responsible official consistent
with subdivision d of subsection 4.
[2] Prompt reporting of deviations from
permit requirements, including those attributable to upset conditions as
defined in the permit, the probable cause of such deviations, and any
corrective actions or preventive measures taken. The department shall define
"prompt" in the permit consistent with chapter 33.1-15-01 and the applicable
requirements.
(4) A permit condition prohibiting emissions
exceeding any allowances that the source lawfully holds under title IV of the
federal Clean Air Act or the regulations promulgated thereunder.
(a) No permit revision shall be required for
increases in emissions that are authorized by allowances acquired pursuant to
title IV of the federal Clean Air Act, or the regulations promulgated
thereunder, provided that such increases do not require a permit revision under
any other applicable requirement.
(b) No limit shall be placed on the number of
allowances held by the source. The source may not, however, use allowances as a
defense to noncompliance with any other applicable requirement.
(c) Any such allowance shall be accounted for
according to the procedures established in regulations promulgated under title
IV of the federal Clean Air Act.
(5) A severability clause to ensure the
continued validity of the various permit requirements in the event of a
challenge to any portions of the permit.
(6) Provisions stating the following:
(a) The permittee must comply with all
conditions of the title V permit. Any permit noncompliance constitutes a
violation of the federal Clean Air Act and this article and is grounds for
enforcement action; for permit termination, revocation and reissuance, or
modification; or for denial of a permit renewal application.
(b) It shall not be a defense for a permittee
in an enforcement action that it would have been necessary to halt or reduce
the permitted activity in order to maintain compliance with the conditions of
this permit.
(c) The permit may be
modified, revoked, reopened, and reissued, or terminated for cause. The filing
of a request by the permittee for a permit modification, revocation and
reissuance, or termination, or of a notification of planned changes or
anticipated noncompliance does not stay any permit condition.
(d) The permit does not convey any property
rights of any sort, or any exclusive privilege.
(e) The permittee must furnish to the
department, within a reasonable time, any information that the department may
request in writing to determine whether cause exists for modifying, revoking
and reissuing, or terminating the permit or to determine compliance with the
permit. Upon request, the permittee must also furnish to the department copies
of records required to be kept by the permit or, for information claimed to be
confidential, the permittee must also furnish such records directly to the
administrator of the United States environmental protection agency along with a
claim of confidentiality.
(7) A provision to ensure that the source
pays fees to the department consistent with the fee schedule in chapter
33.1-15-23.
(8) Emissions trading.
No permit revision shall be required, under any approved economic incentives,
marketable permits, emissions trading and other similar programs or processes
for changes that are provided for in the permit and the state implementation
plan.
(9) Terms and conditions for
reasonably anticipated alternative operating scenarios identified by the source
in its application as approved by the department. Such terms and conditions:
(a) Shall require the source,
contemporaneously with making a change from one operating scenario to another,
to record in a log at the permitted facility a record of the alternative
operating scenario under which it is operating;
(b) Shall extend the permit shield described
in subdivision f to all terms and conditions under each such alternative
operating scenario; and
(c) Must
ensure that the terms and conditions of each such alternative scenario meet all
applicable requirements and the requirements of this section. The department
shall not approve a proposed alternative operating scenario into the title V
permit until the source has obtained all authorizations required under any
applicable requirement relevant to that alternative operating
scenario.
(10) Terms and
conditions, if the permit applicant requests them, for the trading of emissions
increases and decreases in the permitted facility, to the extent that the
applicable requirements, including the state implementation plan, provide for
trading such increases and decreases without a case-by-case approval of each
emissions trade. Such terms and conditions:
(a) Shall include all terms required under
subdivisions a and c to determine compliance;
(b) Shall extend the permit shield described
in subdivision f to all terms and conditions that allow such increases and
decreases in emissions; and
(c)
Must meet all applicable requirements and requirements of this
section.
(11) If a
permit applicant requests it, the department shall issue permits that contain
terms and conditions, including all terms required under subdivisions a and c
to determine compliance, allowing for the trading of emissions increases and
decreases in the permitted facility solely for the purpose of complying with a
federally enforceable emissions cap that is established in the permit
independent of otherwise applicable requirements provided the changes in
emissions are not modifications under title I of the federal Clean Air Act and
the changes do not exceed the emissions allowable under the permit. The permit
applicant shall include in its application proposed replicable procedures and
permit terms that ensure the emissions trades are quantifiable and enforceable.
The department shall not be required to include in the emissions trading
provisions any emissions units for which emissions are not quantifiable or for
which there are no replicable procedures to enforce the emissions trades. The
permit shall also require compliance with all applicable requirements. The
permittee shall supply written notification at least seven days prior to the
change to the department and the administrator of the United States
environmental protection agency and shall state when the change will occur and
shall describe the changes in emissions that will result and how these
increases and decreases in emissions will comply with the terms and conditions
of the permit. The permit shield described in subdivision f shall extend to
terms and conditions that allow such increases and decreases in emissions.
b. Federally enforceable
requirements.
(1) All terms and conditions in
a title V permit, including any provisions designed to limit a source's
potential to emit, are enforceable by the administrator of the United States
environmental protection agency and citizens under the federal Clean Air
Act.
(2) Notwithstanding paragraph
1, the department shall specifically designate as not being federally
enforceable under the federal Clean Air Act any terms and conditions included
in the permit that are not required under the federal Clean Air Act or under
any of its applicable requirements. Terms and conditions so designated are not
subject to the requirements of subsections 6 and 7, or of this subsection,
other than those contained in this subdivision.
c. Compliance requirements. All title V
permits shall contain the following elements with respect to compliance:
(1) Consistent with paragraph 3 of
subdivision a, compliance certification, testing, monitoring, reporting, and
recordkeeping requirements sufficient to assure compliance with the terms and
conditions of the permit. Any document, including reports, required by a title
V permit shall contain a certification by a responsible official that meets the
requirements of subdivision d of subsection 4.
(2) Inspection and entry requirements that
require that, upon presentation of credentials and other documents as may be
required by law, the permittee shall allow the department or an authorized
representative to perform the following:
(a)
Enter upon the permittee's premises where a title V source is located or
emissions-related activity is conducted, or where records must be kept under
the conditions of the permit;
(b)
Have access to and copy, at reasonable times, any records that must be kept
under the conditions of the permit;
(c) Inspect at reasonable times any
facilities, equipment (including monitoring and air pollution control
equipment), practices, or operations regulated or required under the permit;
and
(d) As authorized by the
federal Clean Air Act and this article, sample or monitor at reasonable times
substances or parameters for the purpose of assuring compliance with the permit
or applicable requirements.
(3) A schedule of compliance consistent with
paragraph 8 of subdivision c of subsection 4.
(4) Progress reports consistent with an
applicable schedule of compliance and paragraph 8 of subdivision c of
subsection 4 to be submitted at least semiannually, or at a more frequent
period if specified in the applicable requirement or by the department. Such
progress reports shall contain the following:
(a) Dates for achieving the activities,
milestones, or compliance required in the schedule of compliance, and dates
when such activities, milestones, or compliance were achieved; and
(b) An explanation of why any dates in the
schedule of compliance were not or will not be met, and any preventive or
corrective measures adopted.
(5) Requirements for compliance certification
with terms and conditions contained in the permit, including emissions
limitations, standards, or work practices. Permits shall include each of the
following:
(a) The frequency, which is
annually or such more frequent periods as specified in the applicable
requirement or by the department, of submissions of compliance
certifications;
(b) In accordance
with paragraph 3 of subdivision a, a means for monitoring the compliance of the
source with its emissions limitations, standards, and work practices. The means
for monitoring shall be contained in applicable requirements or United States
environmental protection agency guidance;
(c) A requirement that the compliance
certification include all of the following (provided that the identification of
applicable information may cross-reference the permit or previous reports, as
applicable):
[1] The identification of each
term or condition of the permit that is the basis of the
certification;
[2] The
identification of the methods or other means used by the owner or operator for
determining the compliance status with each term and condition during the
certification period. Such methods and other means shall include, at a minimum,
the methods and means required under paragraph 3 of subdivision a. If
necessary, the owner or operator also shall identify any other material
information that must be included in the certification to comply with section
113(c)(2) of the federal Clean Air Act, which prohibits knowingly making a
false certification or omitting material information;
[3] The status of compliance with the terms
and conditions of the permit for the period covered by the certification,
including whether compliance during the period was continuous or intermittent.
The certification shall be based on the method or means designated in item 2.
The certification shall identify each deviation and take it into account in the
compliance certification. The certification shall also identify as possible
exceptions to compliance any periods during which compliance is required and in
which an excursion or exceedance as defined under subsection 10 occurred;
and
[4] Such other facts as the
department may require to determine the compliance status of the
source;
(d) A
requirement that all compliance certifications be submitted to the
administrator of the United States environmental protection agency as well as
to the department; and
(e) Such
additional requirements as may be specified pursuant to sections 114(a)(3) and
504(b) of the federal Clean Air Act.
(6) Such other provisions as the department
may require.
d. General
permits.
(1) The department may, after notice
and opportunity for public participation provided under subdivision h of
subsection 6, issue a general permit covering numerous similar sources. Any
general permit shall comply with all requirements applicable to other title V
permits and shall identify criteria by which sources may qualify for the
general permit. To sources that qualify, the department shall grant the
conditions and terms of the general permit. Notwithstanding the shield
provisions of subdivision f, the source shall be subject to enforcement action
for operation without a title V permit to operate if the source is later
determined not to qualify for the conditions and terms of the general permit.
General permits shall not be authorized for affected sources under the acid
rain program unless otherwise provided in regulations promulgated under title
IV of the federal Clean Air Act. The department is not required to issue a
general permit in lieu of individual title V permits.
(2) Title V sources that would qualify for a
general permit must apply to the department for coverage under the terms of the
general permit or must apply for a title V permit to operate consistent with
subsection 4. The department may, in the general permit, provide for
applications which deviate from the requirements of subsection 4, provided that
such applications meet the requirements of title V of the federal Clean Air
Act, and include all information necessary to determine qualification for, and
to assure compliance with, the general permit. Without repeating the public
participation procedures required under subdivision h of subsection 6, the
department may grant a source's request for authorization to operate under a
general permit, but such a grant shall not be a final permit action for
purposes of judicial review.
e. Temporary sources. The department may
issue a single permit authorizing emissions from similar operations by the same
source owner or operator at multiple temporary locations. The operation must be
temporary and involve at least one change of location during the term of the
permit. No affected source shall be permitted as a temporary source. Permits
for temporary sources shall include the following:
(1) Conditions that will assure compliance
with all applicable requirements at all authorized locations;
(2) Requirements that the owner or operator
notify the department at least ten days in advance of each change in location;
and
(3) Conditions that assure
compliance with all other provisions of this section.
f. Permit shield.
(1) Except as provided in this section, upon
written request by the applicant, the department shall include in a title V
permit to operate a provision stating that compliance with the conditions of
the permit shall be deemed compliance with any applicable requirement as of the
date of permit issuance, provided that:
(a)
Such applicable requirements are included and are specifically identified in
the permit; or
(b) The department,
in acting on the permit application or revision, determines in writing that
other requirements specifically identified are not applicable to the source,
and the permit includes the determination or a concise summary
thereof.
(2) A title V
permit that does not expressly state that a permit shield exists shall be
presumed not to provide such a shield.
(3) Nothing in this subdivision or in any
title V permit shall alter or affect the following:
(a) The provisions of section 303 of the
federal Clean Air Act (emergency orders), including the authority of the
administrator of the United States environmental protection agency under that
section;
(b) The liability of an
owner or operator of a source for any violation of applicable requirements
prior to or at the time of permit issuance;
(c) The applicable requirements of the acid
rain program, consistent with section 408(a) of the federal Clean Air Act;
or
(d) The ability of the United
States environmental protection agency to obtain information from a source
pursuant to section 114 of the federal Clean Air Act.
g. Emergency provision.
(1) An "emergency" means any situation
arising from sudden and reasonably unforeseeable events beyond the control of
the source, including acts of God, which situation requires immediate
corrective action to restore normal operation, and that causes the source to
exceed a technology-based emissions limitation under the title V permit to
operate, due to unavoidable increases in emissions attributable to the
emergency. An emergency shall not include noncompliance to the extent caused by
improperly designed equipment, lack of preventive maintenance, careless or
improper operation, or operator error.
(2) Effect of an emergency. An emergency
constitutes an affirmative defense to an action brought for noncompliance with
such technology-based emissions limitations if the conditions of paragraph 3
are met.
(3) The affirmative
defense of emergency shall be demonstrated through properly signed,
contemporaneous operating logs, or other relevant evidence that:
(a) An emergency occurred and that the
permittee can identify the causes of the emergency;
(b) The permitted facility was at the time
being properly operated;
(c) During
the period of the emergency the permittee took all reasonable steps to minimize
levels of emissions that exceeded the emissions standards, or other
requirements in the permit; and
(d)
The permittee submitted notice of the emergency to the department within one
working day of the time when emissions limitations were exceeded due to the
emergency. This notice fulfills the requirement of item 2 of subparagraph c of
paragraph 3 of subdivision a. This notice must contain a description of the
emergency, any steps taken to mitigate emissions, and corrective actions
taken.
(4) In any
enforcement proceeding, the permittee seeking to establish the occurrence of an
emergency has the burden of proof.
(5) This provision is in addition to any
emergency or upset provision contained in any applicable requirement and the
malfunction notification required under subdivision b of subsection 2 of
section 33.1-15-01-13 when a threat to health and welfare would
exist.
6.
Permit issuance, renewal, reopenings, and revisions.
a. Action on application.
(1) A permit, permit modification, or permit
renewal may be issued only if all of the following conditions have been met:
(a) The department has received a complete
application for a permit, permit modification, or permit renewal, except that a
complete application need not be received before issuance of a general permit
under subdivision d of subsection 5;
(b) Except for modifications qualifying for
minor permit modification procedures under paragraphs 1 and 2 of subdivision e,
the department has complied with the requirements for public participation
under subdivision h;
(c) The
department has complied with the requirements for notifying and responding to
affected states under subdivision b of subsection 7;
(d) The conditions of the permit provide for
compliance with all applicable requirements and the requirements of this
section; and
(e) The administrator
of the United States environmental protection agency has received a copy of the
proposed permit and any notices required under subdivisions a and b of
subsection 7, and has not objected to issuance of the permit under subdivision
c of subsection 7 within the time period specified therein.
(2) Except for applications
received during the initial transitional period described in
40 CFR
70.4(b)(11) or under
regulations promulgated under title IV or title V of the federal Clean Air Act
for the permitting of affected sources under the acid rain program, the
department shall take final action on each permit application, including a
request for permit modification or renewal, within eighteen months after
receiving a complete application.
(3) The department shall provide notice to
the applicant of whether the application is complete. Unless the department
requests additional information or otherwise notifies the applicant of
incompleteness within sixty days of receipt of an application, the application
shall be deemed complete. For modifications processed through the minor permit
modification procedures, in paragraphs 1 and 2 of subdivision e, a completeness
determination is not required.
(4)
The department shall provide a statement that sets forth the legal and factual
basis for the draft permit conditions, including references to the applicable
statutory or regulatory provisions. The department shall send this statement to
the United States environmental protection agency and to any other person who
requests it.
(5) The submittal of a
complete application shall not affect the requirement that any source have a
permit to construct under section 33.1-15-14-02.
b. Requirement for a permit.
(1) Except as provided in the following
sentence, paragraphs 2 and 3, subparagraph e of paragraph 1 of subdivision e,
and subparagraph e of paragraph 2 of subdivision e, no title V source may
operate after the time that it is required to submit a timely and complete
application under this section, except in compliance with a permit issued under
this section. If a title V source submits a timely and complete application for
permit issuance, including for renewal, the source's failure to have a title V
permit is not a violation of this section until the department takes final
action on the permit application, except as noted in this subsection. This
protection shall cease to apply if, subsequent to the completeness
determination made pursuant to paragraph 3 of subdivision a, and as required by
paragraph 2 of subdivision a of subsection 4, the applicant fails to submit by
the deadline specified in writing by the department any additional information
identified as being needed to process the application. For timely and complete
renewal applications for which the department has failed to issue or deny the
renewal permit before the expiration date of the previous permit, all the terms
and conditions of the permit, including the permit shield that was granted
pursuant to subdivision f of subsection 5 shall remain in effect until the
renewal permit has been issued or denied.
(2) A permit revision is not required for
section 502(b)(10) changes provided:
(a) The
changes are not modifications under chapters 33.1-15-12, 33.1-15-13, and
33.1-15-15 or title I of the federal Clean Air Act.
(b) The changes do not exceed the emissions
allowable under the title V permit whether expressed therein as a rate of
emissions or in terms of total emissions.
(c) A permit to construct under section
33.1-15-14-02 has been issued, if required.
(d) The facility provides the department and
the administrator of the United States environmental protection agency with
written notification at least seven days in advance of the proposed change. The
written notification shall include a description of each change within the
permitted facility, the date on which the change will occur, any change in
emissions, and any permit term or condition that is no longer applicable as a
result of the change.
The permit shield described in subdivision f of subsection 5
shall not apply to any change made pursuant to this paragraph.
(3) A permit revision
is not required for changes that are not addressed or prohibited by the permit
provided:
(a) Each such change shall meet all
applicable requirements and shall not violate any existing permit term or
condition.
(b) The source must
provide contemporaneous written notice to the department and the administrator
of the United States environmental protection agency of each such change,
except for changes that qualify as insignificant under the provisions of
subdivision c of subsection 4. Such written notice shall describe each such
change, including the date, any change in emissions, contaminants emitted, and
any applicable requirement that would apply as a result of the change.
(c) The permittee shall keep a
record describing changes made at the source that result in emissions of a
regulated air contaminant subject to an applicable requirement, but not
otherwise regulated under the permit, and the emissions resulting from those
changes.
(d) The changes are not
subject to any requirements under title IV of the federal Clean Air
Act.
(e) The changes are not
modifications under chapters 33.1-15-12, 33.1-15-13, and 33.1-15-15 or any
provision of title I of the federal Clean Air Act.
(f) A permit to construct under section
33.1-15-14-02 has been issued, if required.
The permit shield described in subdivision f of subsection 5
shall not apply to any change made pursuant to this paragraph.
c. Permit
renewal and expiration.
(1) Permits being
renewed are subject to the same procedural requirements, including those for
public participation, affected state and the United States environmental
protection agency review, that apply to initial permit issuance; and
(2) Permit expiration terminates the source's
right to operate unless a timely and complete renewal application has been
submitted consistent with subdivision b of subsection 6 and subparagraph c of
paragraph 1 of subdivision a of subsection 4.
d. Administrative permit amendments.
(1) An "administrative permit amendment" is a
permit revision that:
(a) Corrects
typographical errors;
(b)
Identifies a change in the name, address, or telephone number of any person
identified in the permit, or provides a similar minor administrative change at
the source;
(c) Requires more
frequent monitoring or reporting by the permittee;
(d) Allows for a change in ownership or
operational control of a source if the department determines that no other
change in the permit is necessary, provided that a written agreement containing
a specific date for transfer of permit responsibility, coverage, and liability
between the current and new permittee has been submitted to the
department;
(e) Incorporates into
the title V permit the requirements from a permit to construct, provided that
the permit to construct review procedure is substantially equivalent to the
requirements of subsections 6 and 7 that would be applicable to the change if
it were subject to review as a permit modification, and compliance requirements
substantially equivalent to those contained in subsection 5; or
(f) Incorporates any other type of change
which the administrator of the United States environmental protection agency
has approved as being an administrative permit amendment as part of the
approved title V operating permit program.
(2) Administrative permit amendments for
purposes of the acid rain portion of the permit shall be governed by
regulations promulgated under title IV of the federal Clean Air Act.
(3) Administrative permit amendment
procedures. An administrative permit amendment may be made by the department
consistent with the following:
(a) The
department shall take no more than sixty days from receipt of a request for an
administrative permit amendment to take final action on such request, and may
incorporate such changes without providing notice to the public or affected
states provided that it designates any such permit revisions as having been
made pursuant to this subdivision.
(b) The department shall submit a copy of the
revised permit to the administrator of the United States environmental
protection agency.
(c) The source
may implement the changes addressed in the request for an administrative
amendment immediately upon submittal of the request provided a permit to
construct under section 33.1-15-14-02 has been issued, if required.
(4) The department may, upon
taking final action granting a request for an administrative permit amendment,
allow coverage by the permit shield in subdivision f of subsection 5 for
administrative permit amendments made pursuant to subparagraph e of paragraph 1
of subdivision d which meet the relevant requirements of subsections 5, 6, and
7 for significant permit modifications.
e. Permit modification. A permit modification
is any revision to a title V permit that cannot be accomplished under the
provisions for administrative permit amendments under subdivision d. A permit
modification for purposes of the acid rain portion of the permit shall be
governed by regulations promulgated under title IV of the federal Clean Air
Act.
(1) Minor permit modification
procedures.
(a) Criteria.
[1] Minor permit modification procedures may
be used only for those permit modifications that:
[a] Do not violate any applicable
requirement;
[b] Do not involve
significant changes to existing monitoring, reporting, or recordkeeping
requirements in the permit;
[c] Do
not require or change a case-by-case determination of an emissions limitation
or other standard, or a source-specific determination for temporary sources of
ambient impacts, or a visibility or increment analysis;
[d] Do not seek to establish or change a
permit term or condition for which there is no corresponding underlying
applicable requirement and that the source has assumed to avoid an applicable
requirement to which the source would otherwise be subject. Such terms and
conditions include a federally enforceable emissions cap assumed to avoid
classification as a modification under any provision of title I of the federal
Clean Air Act; and an alternative emissions limit approved pursuant to
regulations promulgated under section 112(i)(5) of the federal Clean Air Act;
[e] Are not modifications under
chapters 33.1-15-12, 33.1-15-13, and 33.1-15-15 or any provision of title I of
the federal Clean Air Act; and
[f]
Are not required to be processed as a significant modification.
[2] Notwithstanding item 1 and
subparagraph a of paragraph 2 of subdivision e, minor permit modification
procedures may be used for permit modifications involving the use of economic
incentives, marketable permits, emissions trading, and other similar
approaches, to the extent that such minor permit modification procedures are
explicitly provided for in the state implementation plan, or in applicable
requirements promulgated by the United States environmental protection
agency.
(b) Application.
An application requesting the use of minor permit modification procedures shall
meet the requirements of subdivision c of subsection 4 and shall include the
following:
[1] A description of the change,
the emissions resulting from the change, and any new applicable requirements
that will apply if the change occurs;
[2] The source's suggested draft
permit;
[3] Certification by a
responsible official, consistent with subdivision d of subsection 4, that the
proposed modification meets the criteria for use of minor permit modification
procedures and a request that such procedures be used; and
[4] Completed forms for the department to use
to notify the administrator of the United States environmental protection
agency and affected states as required under subsection 7.
(c) United States environmental protection
agency and affected state notification. Within five working days of receipt of
a complete permit modification application, the department shall notify the
administrator of the United States environmental protection agency and affected
states of the requested permit modification. The department shall promptly send
any notice required under paragraph 2 of subdivision b of subsection 7 to the
administrator of the United States environmental protection agency.
(d) Timetable for issuance. The department
may not issue a final permit modification until after the United States
environmental protection agency forty-five-day review period or until the
United States environmental protection agency has notified the department that
the United States environmental protection agency will not object to issuance
of the permit modification, whichever is first, although the department can
approve the permit modification prior to that time. Within ninety days of the
department's receipt of an application under minor permit modification
procedures or fifteen days after the end of the administrator's forty-five-day
review period under subdivision c of subsection 7, whichever is later, the
department shall:
[1] Issue the permit
modification as proposed;
[2] Deny
the permit modification application;
[3] Determine that the requested modification
does not meet the minor permit modification criteria and should be reviewed
under the significant modification procedures; or
[4] Revise the draft permit modification and
transmit to the administrator the new proposed permit modification as required
by subdivision a of subsection 7.
(e) Source's ability to make change. A source
may make the change proposed in its minor permit modification application only
after it files such application and the department approves the change in
writing. If the department allows the source to make the proposed change prior
to taking action specified in items 1, 2, and 3 of subparagraph d, the source
must comply with both the applicable requirements governing the change and the
proposed permit terms and conditions. During this time period, the source need
not comply with the existing permit terms and conditions it seeks to modify.
However, if the source fails to comply with its proposed permit terms and
conditions during this time period, the existing permit terms and conditions it
seeks to modify may be enforced against it.
(f) The permit shield under subdivision f of
subsection 5 shall not extend to minor permit modifications.
(2) Group processing of minor
permit modifications. Consistent with this paragraph, the department may modify
the procedure outlined in paragraph 1 to process groups of a source's
applications for certain modifications eligible for minor permit modification
processing.
(a) Criteria. Group processing of
modifications may be used only for those permit modifications:
[1] That meet the criteria for minor permit
modification procedures under item 1 of subparagraph a of paragraph 1 of
subdivision e; and
[2] That
collectively are below the threshold level which is ten percent of the
emissions allowed by the permit for the emissions unit for which the change is
requested, twenty percent of the applicable definition of major source in
subsection 1, or five tons [4.54 metric tons] per year, whichever is
least.
(b) Application.
An application requesting the use of group processing procedures shall meet the
requirements of subdivision c of subsection 4 and shall include the following:
[1] A description of the change, the
emissions resulting from the change, and any new applicable requirements that
will apply if the change occurs.
[2] The source's suggested draft
permit.
[3] Certification by a
responsible official, consistent with subdivision d of subsection 4, that the
proposed modification meets the criteria for use of group processing procedures
and a request that such procedures be used.
[4] A list of the source's other pending
applications awaiting group processing, and a determination of whether the
requested modification, aggregated with these other applications, equals or
exceeds the threshold set under item 2 of subparagraph a of paragraph 2 of
subdivision e.
[5] Certification,
consistent with subdivision d of subsection 4, that the source has notified the
United States environmental protection agency of the proposed modification.
Such notification need only contain a brief description of the requested
modification.
[6] Completed forms
for the department to use to notify the administrator of the United States
environmental protection agency and affected states as required under
subsection 7.
(c) United
States environmental protection agency and affected state notification. On a
quarterly basis or within five business days of receipt of an application
demonstrating that the aggregate of a source's pending applications equals or
exceeds the threshold level set under item 2 of subparagraph a of paragraph 2
of subdivision e, whichever is earlier, the department shall meet its
obligation under paragraph 1 of subdivision a of subsection 7 and paragraph 1
of subdivision b of subsection 7 to notify the administrator of the United
States environmental protection agency and affected states of the requested
permit modifications. The department shall send any notice required under
paragraph 2 of subdivision b of subsection 7 to the administrator of the United
States environmental protection agency.
(d) Timetable for issuance. The provisions of
subparagraph d of paragraph 1 of subdivision e shall apply to modifications
eligible for group processing, except that the department shall take one of the
actions specified in items 1 through 4 of subparagraph d of paragraph 1 of
subdivision e within one hundred eighty days of receipt of the application or
fifteen days after the end of the administrator's forty-five-day review period
under subdivision c of subsection 7, whichever is later.
(e) Source's ability to make change. The
provisions of subparagraph e of paragraph 1 apply to modifications eligible for
group processing.
(f) The permit
shield under subdivision f of subsection 5 shall not extend to group processing
of minor permit modifications.
(3) Significant modification procedures.
(a) Criteria. Significant modification
procedures shall be used for applications requesting permit modifications that
do not qualify as minor permit modifications or as administrative amendments.
Every significant change in existing monitoring permit terms or conditions and
every relaxation of reporting or recordkeeping permit terms or conditions shall
be considered significant. Nothing herein shall be construed to preclude the
permittee from making changes consistent with this subsection that would render
existing permit compliance terms and conditions irrelevant.
(b) Significant permit modifications shall
meet all requirements of this section, including those for applications, public
participation, review by affected states, and review by the United States
environmental protection agency, as they apply to permit issuance and permit
renewal. The department shall complete review of significant permit
modifications within nine months after receipt of a complete application.
f. Reopening
for cause.
(1) Each issued permit shall
include provisions specifying the conditions under which the permit will be
reopened prior to the expiration of the permit. A permit shall be reopened and
revised under any of the following circumstances:
(a) Additional applicable requirements under
the federal Clean Air Act become applicable to a major title V source with a
remaining permit term of three or more years. Such a reopening shall be
completed not later than eighteen months after promulgation of the applicable
requirement. No such reopening is required if the effective date of the
requirement is later than the date on which the permit is due to expire, unless
the original permit or any of its terms and conditions has been
extended.
(b) Additional
requirements, including excess emissions requirements, become applicable to an
affected source under title IV of the federal Clean Air Act or the regulations
promulgated thereunder. Upon approval by the administrator of the United States
environmental protection agency, excess emissions offset plans shall be deemed
to be incorporated into the permit.
(c) The department or the United States
environmental protection agency determines that the permit contains a material
mistake or that inaccurate statements were made in establishing the emissions
standards or other terms or conditions of the permit.
(d) The administrator of the United States
environmental protection agency or the department determines that the permit
must be revised or revoked to assure compliance with the applicable
requirements.
(2)
Proceedings to reopen and issue a permit shall follow the same procedures as
apply to initial permit issuance and shall affect only those parts of the
permit for which cause to reopen exists. Such reopening shall be made as
expeditiously as practicable.
(3)
Reopenings under paragraph 1 shall not be initiated before a notice of such
intent is provided to the title V source by the department at least thirty days
in advance of the date that the permit is to be reopened, except that the
department may provide a shorter time period in the case of an
emergency.
g. Reopenings
for cause by the United States environmental protection agency.
(1) If the administrator of the United States
environmental protection agency finds that cause exists to terminate, modify,
or revoke and reissue a permit pursuant to subdivision f, within ninety days
after receipt of such notification, the department shall forward to the United
States environmental protection agency a proposed determination of termination,
modification, or revocation and reissuance, as appropriate.
(2) The administrator of the United States
environmental protection agency will review the proposed determination from the
department within ninety days of receipt.
(3) The department shall have ninety days
from receipt of the United States environmental protection agency objection to
resolve any objection that the United States environmental protection agency
makes and to terminate, modify, or revoke and reissue the permit in accordance
with the administrator's objection.
(4) If the department fails to submit a
proposed determination or fails to resolve any objection, the administrator of
the United States environmental protection agency will terminate, modify, or
revoke and reissue the permit after taking the following actions:
(a) Providing at least thirty days' notice to
the permittee in writing of the reasons for any such action.
(b) Providing the permittee an opportunity
for comment on the administrator's proposed action and an opportunity for a
hearing.
h.
Public participation. Except for modifications qualifying for minor permit
modification procedures, all permit proceedings, including initial permit
issuance, significant modifications, and renewals, shall be subject to
procedures for public notice including offering an opportunity for public
comment and a hearing on the draft permit. These procedures shall include the
following:
(1) Notice must be given by
posting the notice on the department's website. The draft permit must be posted
for the duration of the public comment period. The department also shall
notify, using generally accepted methods, persons on a mailing list developed
by the department, including those who request in writing to be on the list;
and by other means if necessary to assure adequate notice to the affected
public. The department may update the mailing list from time-to-time by
requesting written indication of continued interest from those listed. The
department may delete from the list the name of any person who fails to respond
to such a request within a reasonable timeframe;
(2) The notice shall identify the affected
facility; the name and address of the permittee; the name and address of the
department; the activity or activities involved in the permit action; the
emissions change involved in any permit modification; the name, address, and
telephone number of a person from whom interested persons may obtain additional
information, including copies of the permit draft, the application, all
relevant supporting materials, and all other materials available to the
department that are relevant to the permit decision; a brief description of the
comment procedures required by this subsection; and the time and place of any
hearing that may be held, including a statement of procedures to request a
hearing, unless a hearing has already been scheduled;
(3) The department shall provide such notice
and opportunity for participation by affected states as is provided for by
subsection 7;
(4) The department
shall provide at least thirty days for public comment and shall give notice of
any public hearing at least thirty days in advance of the hearing;
and
(5) The department shall keep a
record of the commenters and also of the issues raised during the public
participation process. These records shall be available to the
public.
7.
Permit review by the United States environmental protection agency and
affected states.
a. Transmission of
information to the administrator.
(1) The
department shall provide a copy of each permit application including any
application for a permit modification (including the compliance plan), to the
administrator of the United States environmental protection agency except that
the applicant shall provide such information directly to the administrator of
the United States environmental protection agency when directed to do so by the
department. The department shall provide a copy of each proposed permit and
each final title V permit to operate to the administrator of the United States
environmental protection agency. To the extent practicable, the preceding
information shall be provided in computer-readable format compatible with the
United States environmental protection agency's national database management
system.
(2) The department may
waive the requirements of paragraph 1 and paragraph 1 of subdivision b for any
category of sources (including any class, type, or size within such category)
other than major sources upon approval by the administrator of the United
States environmental protection agency.
(3) The department shall keep these records
for at least five years.
b. Review by affected states.
(1) The department shall give notice of each
draft permit to any affected state on or before the time that the notice to the
public under subdivision h of subsection 6 is given, except to the extent
paragraphs 1 and 2 of subdivision e of subsection 6 require the timing of the
notice to be different.
(2) As part
of the submittal of the proposed permit to the administrator of the United
States environmental protection agency (or as soon as possible after the
submittal for minor permit modification procedures allowed under paragraphs 1
and 2 of subdivision e of subsection 6) the department shall notify the
administrator of the United States environmental protection agency and any
affected state in writing of any refusal by the department to accept all
recommendations for the proposed permit that the affected state submitted
during the public or affected state review period. The notice shall include the
department's reasons for not accepting any such recommendation. The department
is not required to accept recommendations that are not based on applicable
requirements or the requirements of this section.
c. United States environmental protection
agency objection. No permit for which an application must be transmitted to the
administrator of the United States environmental protection agency under
subdivision a shall be issued if the administrator of the United States
environmental protection agency objects to its issuance in writing within
forty-five days of receipt of the proposed permit and all necessary supporting
information.
d. Public petitions to
the administrator of the United States environmental protection agency. If the
administrator of the United States environmental protection agency does not
object in writing under subdivision c, any person may petition the
administrator of the United States environmental protection agency within sixty
days after the expiration of the administrator's forty-five-day review period
to make such objection. Any such petition shall be based only on objections to
the permit that were raised with reasonable specificity during the public
comment period provided for in subdivision h of subsection 6, unless the
petitioner demonstrates that it was impracticable to raise such objections
within such period, or unless the grounds for such objection arose after such
period. If the administrator of the United States environmental protection
agency objects to the permit as a result of a petition filed under this
subdivision, the department shall not issue the permit until the United States
environmental protection agency's objection has been resolved, except that a
petition for review does not stay the effectiveness of a permit or its
requirements if the permit was issued after the end of the forty-five-day
review period and prior to the United States environmental protection agency's
objection. If the department has issued a permit prior to receipt of the United
States environmental protection agency's objection under this subdivision, the
department may thereafter issue only a revised permit that satisfies the United
States environmental protection agency's objection. In any case, the source
will not be in violation of the requirement to have submitted a timely and
complete application.
e.
Prohibition on default issuance. The department shall issue no title V permit
to operate, including a permit renewal or modification, until affected states
and the United States environmental protection agency have had an opportunity
to review the proposed permit as required under this subsection.
8.
Judicial review of title
V permit to operate decisions.
a. The
applicant, any person who participated in the department's public participation
process, and any other person who could obtain judicial review under North
Dakota Century Code section 28-32-42 may obtain judicial review provided such
appeal is filed in accordance with North Dakota Century Code section 28-32-42
within thirty days after notice of the final permit action.
b. The department's failure to take final
action on an application for a permit, permit renewal, or permit revision
within the time frames referenced in this section shall be appealable in
accordance with North Dakota Century Code section 28-32-42. A petition for
judicial review may be filed any time before the department denies the permit
or issues the final permit.
c. In
accordance with North Dakota Century Code chapter 28-32, the mechanisms
outlined in this subsection shall be the exclusive means for judicial review of
permit decisions referenced in this section.
d. Solely for the purpose of obtaining
judicial review in state court, final permit action shall include the failure
of the department to take final action on an application for a permit, permit
renewal, or permit revision within the time frames referenced in this
section.
e. Failure to take final
action within ninety days of receipt of an application requesting minor permit
modification procedures (or one hundred eighty days for modifications subject
to group processing requirements) shall be considered final action and subject
to judicial review in state court.
f. Petitions for judicial review of final
permit actions may be filed after the deadline in North Dakota Century Code
section 23.1-01-11, only if the petitions are based solely on grounds arising
after the deadline for judicial review. Such petitions must be filed no later
than thirty days after the new grounds for review arise.