(a) Statement of Purpose and General
Intent The requirements of paragraph 1200-03-09-.02(11) are promulgated in
order to fulfill the requirements of Title V of the federal Clean Air Act
(42 U.S.C.
7661a-
7661e) and the federal regulations
promulgated thereunder at 40 C.F.R. Part
70 . (FR Vol. 57, No. 140, Tuesday,
July 21, 1992 p.32295-32312). The federal law and regulations require unique
approaches pertaining to federal involvement in the permitting activities
specified in this paragraph. The federal government, acting by and through the
United States Environmental Protection Agency (EPA), is a key party in the
review, issuance, and revisions of permits issued under the provisions of this
paragraph. It is the intent of the Board to comply with these federal
requirements to the full extent allowed under the laws of the State of
Tennessee. In the event that the federal law or regulations should require
something that the Board has not yet promulgated as a rule, the permit
applicant and the Technical Secretary may mutually agree to be governed by
whatever emission limitations and/or procedural requirements that the federal
rules require and that shall become a binding condition of the applicant's
permit to operate. In addition, sources that are subject to this paragraph
1200-03-09-.02(11) may opt out of being subject to the provisions of paragraph
1200-03-09-.02(11) by limiting their potential to emit such that they are below
the applicability threshold. In order to exercise this option, the source must
agree to be bound by a permit which specifies the more restrictive limit and to
be subject to detailed monitoring, reporting and recordkeeping requirements
that prove the source is abiding by its more restrictive emission and/or
production limits. The permit shall have a term not to exceed 10 years and
shall be subjected to the opportunity for comment and hearing by EPA, affected
states and the public consistent with the provisions of this paragraph. The
permit shall contain a statement of basis comparing the source's potential to
emit with the synthetic limit to emit and the procedures to be followed that
will insure that the more restrictive limit is not exceeded. If the source
later decides to increase its potential to emit, the new source review permit
procedures of rule
1200-03-09-.01 shall apply.
1. Initial Start-Up of the Major Stationary
Source Operating Permit Program
Consistent with the provisions of subparagraph
1200-03-09-.02(11)(d), all operating permits in the possession of sources
subject to the requirements of paragraph 1200-03-09-.02(11) are subject to
permit revocation proceedings if the source does not file a timely, complete
major source operating permit application within 120 days after the Technical
Secretary files his written notification to the source that their major
stationary source operating permit applications are due, regardless of the
expiration date on the permit. Anything in this paragraph 1200-03-09-.02(11) to
the contrary not withstanding, the current permit(s) in the possession of the
source shall be effective until superseded by the issuance of major source
operating permits under the provisions of this paragraph 1200-03-09-.02(11),
except that if a complete application or additional information requested by
the Technical Secretary is not timely filed, then (i) the effectiveness of the
current operating permits shall be suspended until such application or
information is filed, and (ii), the current operating permits shall be subject
to revocation proceedings at the discretion of the Technical Secretary. The
preceding sentence shall also apply to renewals of major source operating
permits. In addition, any operating permit application that does not seek to
amend an existing operating permit without first undergoing construction permit
review being processed by the Technical Secretary for such a source will be
canceled upon such notification and the source shall abide by the terms of
their most recent permit until it is superseded by the major source operating
permit.
2. Once an operating
permit has been issued to a source pursuant to the provisions of paragraph
1200-03-09-.02(11), the permit, its shield, (if one was granted) and its
respective conditions will be extended and effective after its expiration date
provided that the source has submitted a timely, complete renewal application
to the Technical Secretary consistent with the provisions of item
1200-03-09-.02(11)(d)1.(i)(III) and section
1200-03-09-.02(11)(d)
1.(ii)(I)III. The extension shall cease upon final permit action by the
Technical Secretary. If the Technical Secretary's final permit action is
contested, the provisions of T.C.A. 4-5-320(b) shall rule as to the continued
validity of the previous permit.
3.
Judicial review of a permit issued pursuant to paragraph 1200-03-09-.02(11)
A person aggrieved by an action of the Technical Secretary on
a permit processed pursuant to paragraph 1200-03-09-.02(11) may initially seek
administrative review of the permit before the Board and later, judicial review
in Chancery Court by following the procedures detailed below:
(i) The person seeking
administrative/judicial review shall be:
(I)
The applicant for the permit request under dispute; or
(II) A person who participated in the public
participation process provided pursuant to part 1200-03-09-.02(11)(f)8.;
or
(III) Any other person who can
obtain judicial review of the permit under State law.
(ii) The Technical Secretary's failure to
take timely final action on an application filed under the provisions of
paragraph 1200-03-09-.02(11) is grounds for seeking administrative/judicial
review. Timely, final action shall be determined according to the schedules for
action established in paragraph 1200-03-09-.02(11).
(iii) The procedures specified in part
1200-03-09-.02(11)(a)3. are the exclusive means for obtaining
administrative/judicial review of the terms and conditions of permits issued
pursuant to paragraph 1200-03-09-.02(11). Petitions for administrative review
of a permit term or action of the Technical Secretary on a permit shall be
filed by a person identified in subpart 1200-03-09-.02(11)(a)3.(i) in
accordance with the procedures specified in Rule
1200-03-09-.05. A person
aggrieved by the final action of the Board on their petition may seek judicial
review within 60 days of the entry of the Board's final action consistent with
the provisions of T.C.A. § 4-5-322. A person conforming to the criteria of
subpart 1200-03-09-.02(11)(a)3.(i) may petition for administrative/judicial
review later than the deadlines of Rule
1200-03-09-.05 or T.C.A. §
4-5-322 only if the petition is based solely on grounds arising after the
deadlines for administrative/judicial review. Petitions in this category must
be filed within sixty days after the occurrence of the new grounds for
administrative review. Petitions for review of the Technical Secretary's
failure to take a final permit action may be filed at any time prior to his
issuance or denial of the permit, but only after the permit processing
deadlines of paragraph 1200-03-09-.02(11) have not been met by the Technical
Secretary.
4.
Operational Flexibility
The owner or operator of a source subject to paragraph
1200-03-09-.02(11) may make certain changes at their facility that are contrary
to or not addressed by the permit as provided in part
1200-03-09-.02(11)(a)4.
(i) The
following changes can be made by the permittee without requiring a permit
revision, if the changes are not modifications under Title I of the federal Act
or Division 1200-03 and the changes do not exceed the emissions allowable under
the permit (whether expressed therein as a rate of emissions or in the terms of
total emissions): Provided, that the facility provides the Administrator and
Technical Secretary with written notification as required below in advance of
the proposed changes, which shall be a minimum of 7 days. The Technical
Secretary may waive the 7 day advance notice in instances where the source
demonstrates in writing that an emergency necessitates the change. Emergency
shall be demonstrated by the criteria of part 1200-03-09-.02(11)(e)7. and in no
way shall it include changes solely to take advantages of an unforeseen
business opportunity. The source, Technical Secretary and EPA shall attach each
such notice to their copy of the relevant permit:
(I) The source may make a Section 502(b)(10)
change if their written notification:
I.
Contains a brief description of the change within the permitted
facility;
II. Specifies the date on
which the change will occur;
III.
Declares any change in emissions; and
IV. Declares any permit term or condition that is no longer
applicable as a result of the change.
A. The
permit shield provisions of part 1200-03-09-.02(11)(e)6. shall not apply to
Section 502(b)(10) changes.
(II) Reserved.
(III) The source may trade emissions
increases and decreases at their facility solely for the purpose of complying
with a federally enforceable emissions cap. In order to exercise such an
option, the permit applicant must ask the Technical Secretary to issue such a
permit. The permit must contain all terms required under part
1200-03-09-.02(11)(e)1. and part 1200-03-09-.02(11)(e)3. to determine
compliance, allowing for the trading of such emissions increases and decreases
with the emissions cap specified in the permit, independent of otherwise
applicable requirements.
I. The applicant for
a permit under item 1200-03-09-.02(11)(a)4.(i)(III) shall include in its
application, proposed replicable procedures and permit terms that ensure the
emission trades are quantifiable and enforceable. The Technical Secretary 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.
II. The permit shall require compliance with
all applicable requirements.
III.
The written notification required under subpart 1200-03-09-.02(11)(a)4.(i)
shall state:
A. When the change will
occur;
B. Describe the changes in
emissions that will result; and
C.
How these increases and decreases will comply with the terms and conditions of
the permit.
IV. The
permit shield described in part 1200-03-09-.02(11)(e)6. may be extended to the
terms and conditions which allow such increases and decreases in
emissions.
(ii) The source may make operational
flexibility changes that are not addressed or prohibited by the permit without
a permit revision subject to the following requirements:
(I) The change cannot be subject to a
requirement of Title IV of the Federal Act or Chapter 1200-03-30.
(II) The change cannot be a modification
under any provision of Title I of the federal Act or Division
1200-03.
(III) Each change shall
meet all applicable requirements and shall not violate any existing permit term
or condition.
(IV) The source must
provide contemporaneous written notice to the Technical Secretary and EPA of
each such change, except for changes that are below the threshold of
insignificant activities and emission levels that are specified in Rule
1200-03-09-.04.
(V) Each change shall be described in the
notice including the date, any change in emissions, pollutants emitted, and any
applicable requirements that would apply as a result of the change.
(VI) The change shall not qualify for a
permit shield under the provisions of part 1200-03-09-.02(11)(e)6.
(VII) The permittee shall keep a record
describing the changes made at the source that result in emissions of a
regulated air pollutant subject to an applicable requirement, but not otherwise
regulated under the permit, and the emissions resulting from those changes. The
records shall be retained until the changes are incorporated into subsequently
issued permits.
5. Opt-In Opportunity
Any source that is not subject to the provisions of
paragraph 1200-03-09-.02(11) may opt into being subject to paragraph
1200-03-09-.02(11) by filing a written request to be so bound with the
Technical Secretary. Upon execution of a mutual, signed letter of agreement
binding the person to the provisions of paragraph 1200-03-09-.02(11), the
Technical Secretary shall issue a major stationary source operating permit to
the source that subjects them to all of the requirements of paragraph
1200-03-09-.02(11).
(b) Definitions - The following terms are
defined as they uniquely apply to this paragraph. All other terms shall have
the meaning given to them in Chapter 1200-03-02, Chapter 0400-30-38, Chapter
1200-03-30, Chapter 1200-03-31, Chapter 1200-03-32, and Chapter 1200-03-20.
-NOTICE-
THE READER IS CAUTIONED THAT ADDITIONAL DEFINITIONS HAVE BEEN
ADDED TO SUBPARAGRAPH 1200-03-09-.02(11)(B) DURING RULEMAKING. AS A RESULT, NOT
ALL DEFINITIONS ARE ALPHABETIZED.
1.
"Federal Act" means the Clean Air Act, as amended,
42 U.S.C. §§
7401, et. seq. as amended by Public Law No.
101-549 (November 15, 1990)
2.
"Affected source" shall have the meaning given to it in the federal regulations
promulgated under title IV of the Federal Act and Chapter 1200-03-30.
3. "Affected States" may be Illinois,
Kentucky, Virginia, North Carolina, South Carolina, Georgia, Alabama,
Mississippi, West Virginia, Arkansas or Missouri if either of the following
criteria are met:
(i) The State's air quality
may be affected by the issuance of a permit pursuant to the provisions of
paragraph 1200-03-09-.02(11); or
(ii) The State noted above is within 50 miles
of the source's site or proposed site.
4. "Affected unit" shall have the meaning
given it in the regulations promulgated under title IV of the Federal Act and
Chapter 1200-03-30.
5. "Applicable
requirement" means all of the following as they apply to emissions units in a
source subject to paragraph 1200-03-09-.02(11) (including requirements that
have been promulgated or approved by EPA through rulemaking at the time of
issuance but have future-effective compliance dates):
(i) Any standard or other requirement
provided for in the Tennessee implementation plan approved or promulgated by
EPA through rulemaking under title I of the Federal Act that implements the
relevant requirements of the Federal Act, including any revisions to that plan
promulgated in, 40 C.F.R. Part
52, but not including any standard or other
requirement provided for in the Tennessee implementation plan that does not
implement relevant requirements of the Federal Act;
(ii) Any terms or conditions of any
preconstruction permits issued pursuant to regulations approved or promulgated
through rulemaking under title I, including parts C or D, of the Federal Act,
but not any terms or conditions that do not implement relevant requirements of
the Federal Act;
(iii) Any standard
or other requirement under Section 111 of the Federal Act, including section
111(d);
(iv) Any standard or other
requirement under section 112 of the Federal Act, including any requirement
concerning accident prevention under section 112(r)(7) of the Federal
Act;
(v) Any standard or other
requirements of the acid rain program under title IV of the Federal Act or the
Federal regulations promulgated thereunder;
(vi) Any requirements established pursuant to
section 504(b) or section 114(a)(3) of the Federal Act;
(vii) Any standard or other requirement
governing solid waste incineration, under section 129 of the Federal
Act;
(viii) Any standard or other
requirement for consumer and commercial products, under section 183(e) of the
Federal Act;
(ix) Any standard or
other requirement for tank vessels, under section 183(f) of the Federal
Act;
(x) Any standard or other
requirement of the program to control air pollution from outer continental
shelf sources, under section 328 of the Federal Act;
(xi) Any standard or other requirement of the
regulations promulgated to protect stratospheric ozone under title VI of the
Federal Act, unless the Administrator has determined that such requirements
need not be contained in a title V permit; and
(xii) Any national ambient air quality
standard or increment or visibility requirement under part C of title I of the
Federal Act, but only as it would apply to temporary sources permitted pursuant
to section 504(e) of the Federal Act.
6. "Designated representative" shall have the
meaning given to it in section 402(26) of the Federal Act, the Federal
regulations promulgated thereunder and Chapter 1200-03-30.
7. "Draft permit" means the version of a
permit for which the Technical Secretary offers public participation under part
1200-03-09-.02(11)(f)8. or affected State review under subparagraph
1200-03-09-.02(11)(g).
8.
"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 emission 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.
9. "Emissions unit" means
any part or activity of a stationary source that emits or has the potential to
emit any regulated air pollutant or any pollutant listed under section 112(b)
of the Federal Act. This term is not meant to alter or affect the definition of
the term "unit" for purposes of title IV of the Federal Act or Chapter
1200-03-30.
10. "EPA" or the
"Administrator" means the Administrator of the EPA or his designee.
11. "Final permit" means the version of a
permit issued by the Technical Secretary that has completed all review
procedures required by subparagraph 1200-03-09-.02(11)(f) and subparagraph
1200-03-09-.02(11)(g).
12.
"Fugitive emissions" are those emissions which could not reasonably pass
through a stack, chimney, vent, or other functionally-equivalent
opening.
13. "General permit" means
a permit issued pursuant to paragraph 1200-03-09-.02(11) that meets the
requirements of part 1200-03-09-.02(11)(e)4.
14. "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 subparts (i), (ii), (iii) or (iv)
of this definition. 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 pollutant 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.
(i) A major source under section 112 of the
Federal Act, which is defined as:
(I) For
pollutants 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, 10 tons per year
(tpy) or more of any hazardous air pollutant which has been listed pursuant to
section 112(b) of the Federal Act, 25 tpy or more of any combination of such
hazardous air pollutants, or such lesser quantity as the Administrator 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 or 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; or
(II)
For radionuclides, "major source" shall have the meaning specified by the
Administrator by rule.
(ii) A major stationary source of air
pollutants, as defined in section 302 of the Federal Act, that directly emits
or has the potential to emit, 100 tpy or more of any air pollutant subject to
regulation (including any major source of fugitive emissions of any such
pollutant, as determined by rule by the Administrator). The fugitive emissions
of a stationary source shall not be considered in determining whether it is a
major stationary source for the purposes of section 302(j) of the Federal Act,
unless the source belongs to one of the following categories of stationary
sources:
(I) Coal cleaning plants (with
thermal dryers);
(II) Kraft pulp
mills;
(III) Portland cement
plants;
(IV) Primary zinc
smelters;
(V) Iron and steel
mills;
(VI) Primary aluminum ore
reduction plants;
(VII) Primary
copper smelters;
(VIII) Municipal
incinerators capable of charging more than 250 tons of refuse per
day;
(IX) Hydrofluoric, sulfuric,
or nitric acid plants;
(X)
Petroleum refineries;
(XI) Lime
plants;
(XII) Phosphate rock
processing plants;
(XIII) Coke oven
batteries;
(XIV) Sulfur recovery
plants;
(XV) Carbon black plants
(furnace process);
(XVI) Primary
lead smelters;
(XVII) Fuel
conversion plants;
(XVIII)
Sintering plants;
(XIX) Secondary
metal production plants;
(XX)
Chemical process plants;
(XXI)
Fossil-fuel boilers (or combination thereof) totaling more than 250 million
British thermal units per hour heat input;
(XXII) Petroleum storage and transfer units
with a total storage capacity exceeding 300,000 barrels;
(XXIII) Taconite ore processing
plants;
(XXIV) Glass fiber
processing plants;
(XXV) Charcoal
production plants;
(XXVI)
Fossil-fuel-fired steam electric plants or more than 250 million British
thermal units per hour heat input; or
(XXVII) All other stationary source
categories regulated by a standard promulgated under section 111 or 112 of the
Act, but only with respect to those air pollutants that have been regulated for
that category;
(iii) A
major stationary source as defined in part D of title I of the Federal Act,
including:
(I) For ozone nonattainment areas,
sources with the potential to emit 100 tpy or more of volatile organic
compounds or oxides of nitrogen in areas classified as "marginal" or
"moderate," 50 tpy or more in areas classified as "serious," 25 tpy or more in
areas classified as "severe," and 10 tpy or more in areas classified as
"extreme"; except that the references in this paragraph to 100, 50, 25, and 10
tpy of nitrogen oxides shall not apply with respect to any source for which the
Administrator has made a finding, under section 182(f)(1) or (2) of the Federal
Act, that requirements under section 182(f) of the Federal Act do not
apply;
(II) For ozone transport
regions established pursuant to section 184 of the Federal Act, sources with
the potential to emit 50 tpy or more of volatile organic compounds;
(III) For carbon monoxide nonattainment areas
(1) that are classified as "serious," and (2) in which stationary sources
contribute significantly to carbon monoxide levels as determined under rules
issued by the Administrator, sources with the potential to emit 50 tpy or more
of carbon monoxide; and
(IV) For
particulate matter (PM-10) nonattainment areas classified as "serious," sources
with the potential to emit 70 tpy or more of PM-10.
(iv) For purposes of these regulations, a
research and development facility may be treated as a separate source from
other stationary sources that are located on a contiguous or adjacent property
and are under common control. However, all activities claimed by an applicant
to be research and development at the contiguous or adjacent property shall
have their emissions aggregated as a single source for the purposes of
determining whether or not the research and development activities constitute a
major source.
15.
"Permit modification" means a revision to a permit issued pursuant to paragraph
1200-03-09-.02(11) that meets the requirements of part
1200-03-09-.02(11)(f)5.
16. "Permit
revision" means any permit modification or administrative permit
amendment.
17. "Potential to emit"
means the maximum capacity of a stationary source to emit any air pollutant
under its physical and operational design. Any physical or operational
limitation on the capacity of a source to emit an air pollutant, 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. This
term does not alter or affect the use of this term for any other purposes under
the Federal Act, or the term "capacity factor" as used in title IV of the
Federal Act or the Federal regulations promulgated thereunder or Chapter
1200-03-30.
18. "Proposed permit"
means the version of a permit that the Technical Secretary proposes to issue
and forwards to the Administrator for review in compliance with subparagraph
1200-03-09-.02(11)(g).
19.
"Regulated air pollutant" means the following:
(i) Nitrogen oxides or any volatile organic
compounds;
(ii) Any pollutant for
which a national ambient air quality standard has been promulgated;
(iii) Any pollutant that is subjected to any
standard promulgated under section 111 of the Federal Act;
(iv) Any Class I or II substance subject to a
standard promulgated under or established by title VI of the Federal Act;
or
(v) Any pollutant subject to a
standard promulgated under section 112 or other requirements established under
section 112 of the Federal Act, including sections 112(g), (j), and (r) of the
Act, including the following:
(I) Any
pollutant subject to requirements under section 112(j) of the Federal Act. If
the Administrator fails to promulgate a standard by the date established
pursuant to section 112(e) of the Federal Act, any pollutant for which a
subject source would be major shall be considered to be regulated on the date
18 months after the applicable date established pursuant to section 112(e) of
the Federal Act; and
(II) Any
pollutant for which the requirements of section 112(g)(2) of the Federal Act
have been met, but only with respect to the individual source subject to
section 112(g)(2) requirement.
20. "Renewal" means the process by which a
permit is reissued at the end of its term.
21. "Responsible official" means one of the
following:
(i) 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
decision-making 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:
(I) The facilities employ more than 250
persons or have gross annual sales or expenditures exceeding $25 million (in
second quarter 1980 dollars); or
(II) The delegation of authority to such
representative is approved in advance by the Technical Secretary;
(ii) For a partnership or sole
proprietorship: a general partner or the proprietor, respectively;
(iii) For a municipality, State, Federal, or
other public agency: either a principal executive officer or ranking elected
official. For the purposes of this part, 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 EPA); or
(iv) For affected sources:
(I) The designated representative in so far
as actions, standards, requirements, or prohibitions under title IV of the
Federal Act or the regulations promulgated thereunder are concerned;
and
(II) The designated
representative for any other purposes under paragraph 1200-03-09-.02(11).
However, a person other than the designated representative may serve as the
responsible official for non title IV activities.
22. "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.
23. "Stationary
source" means any building, structure, facility, or installation that emits or
may emit any regulated air pollutant or any pollutant listed under section
112(b) of the Federal Act.
24.
"Research and Development Facility" means any stationary source whose primary
purpose is to conduct research and development into new processes and products,
where such source is operated under the close supervision of technically
trained personnel and is not engaged in the manufacture of products for
commercial sale in commerce, except in a de minimis manner.
25. "Final Permit Action" means the action by
the Technical Secretary to grant or deny an application, petition or objection
submitted under the provisions of paragraph 1200-03-09-.02(11) pursuant to the
following classifications:
(i) An initial
operating permit application
(ii) A
renewal operating permit application
(iii) A modification - administrative
amendment, minor modification, group processed minor modification or
significant modification.
(iv) A
reopening for cause as determined by the Technical Secretary
(v) A reopening of a permit in response to
EPA's request - on their own or in response to a citizen's petition.
If the Technical Secretary's actions are contested and
brought to the Board for a hearing on the matter, "final permit action", means
any of the above actions taken by the Board.
26. "Final Permit" means the permit arising
from any final permit action.
27.
"Federally enforceable" means any emission standard and/or procedural
requirement that can be enforced against an air contaminant source by EPA or
citizens under authority granted them by the Federal Act.
28. "Title I Modification" or "modification
under any provision of Title I of the federal Act" means any modification under
Section 111 and Section 112 of the Federal Act and any physical change or
change in method of operations that is subject to the preconstruction
regulations promulgated under Parts C and D of the Federal Act.
29. "Timely" when used with respect to a
submittal, means that the application was delivered to the Technical Secretary
or deposited in the United States mail (evidenced by postmark) or recognized
delivery service (evidenced by receipt) addressed to the Technical Secretary on
or before the date it is due. However, the definition of "timely" with respect
to timelines for action placed upon the Technical Secretary and/or Division
shall not commence until receipt of the submittal in the office of the
Technical Secretary.
30.
"Exceedance" shall mean a condition that is detected by monitoring that
provides data in terms of an emission limitation or standard and that indicates
that emissions (or opacity) are greater than the applicable emission limitation
or standard (or less than the applicable standard in the case of a percent
reduction requirement) consistent with any averaging period specified for
averaging the results of the monitoring.
31. "Excursion" shall mean a departure from
an indicator range established for monitoring under this paragraph, consistent
with any averaging period specified for averaging the results of the
monitoring.
32. "Subject to
regulation" means, for any air pollutant, that the pollutant is subject to
either a provision in the Clean Air Act, or a nationally-applicable regulation
codified by the Administrator in subchapter C of Chapter
I of Title 40 of the
Code of Federal Regulations, that requires actual control of the quantity of
emissions of that pollutant, and that such a control requirement has taken
effect and is operative to control, limit or restrict the quantity of emissions
of that pollutant released from the regulated activity. Except that:
(i) Greenhouse gases (GHGs), the air
pollutant defined in 40
C.F.R.
86.1818-12(a) as the
aggregate group of six greenhouse gases: carbon dioxide, nitrous oxide,
methane, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride, shall
not be subject to regulation unless, as of July 1, 2011, the GHG emissions are
at a stationary source emitting or having the potential to emit 100,000 tpy
CO
2equivalent emissions.
(ii) The term tpy
CO
2equivalent emissions (CO
2e)
shall represent an amount of GHGs emitted, and shall be computed by multiplying
the mass amount of emissions (tpy), for each of the six greenhouse gases in the
pollutant GHGs, by the gas's associated global warming potential published at
Table A-1 to subpart A of 40 C.F.R.
98 - Global Warming Potentials, and summing
the resultant value for each to compute a tpy
CO
2e.
(iii)
In the event that the U.S. Court of Appeals for the D.C. Circuit or the U.S.
Supreme Court issues an order which would render GHG emissions not subject to
regulation under the Prevention of Significant Deterioration, New Source Review
provisions and/or the Title V operating permit program of the Federal Act, then
GHGs shall not be subject to regulation, nor shall GHG emissions be required to
be included in any construction or operating permit under this regulation
1200-03, as of the effective date of the Federal Register notice of
vacatur.
(iv) In the event that
there is a change to Federal law that supersedes regulation of GHGs under the
Prevention of Significant Deterioration, New Source Review provisions and/or
the Title V operating permit program of the Federal Act, then GHGs shall not be
subject to regulation, nor shall GHG emissions be required to be included in
any construction or operating permit under this regulation 1200-03, as of the
effective date of the change in Federal law.
(e) Permit
Content -
1. The applicant shall propose the
number of permits that they want and the Technical Secretary shall determine
the number of permits that a facility is to receive. In determining the number
of permits, consideration shall be given to the ease of evaluating compliance
at a complex facility. To the extent possible, a complex facility should be
divided into major operating divisions with one permit per division. Each
permit issued by the Technical Secretary pursuant to the provisions of
paragraph 1200-03-09-.02(11) shall include the following elements:
(i) Emission limitations and standards,
including those operational requirements and limitations that assure compliance
with all applicable requirements at the time of permit issuance.
(I) The permit shall 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.
(II)
The permit shall state that, where an applicable requirement of the Federal Act
is more stringent than the Federal regulations promulgated under title IV of
the Federal Act, both provisions shall be incorporated into the permit and
shall be enforceable by the Administrator.
(III) Sources that qualify and choose an
alternate emission standard pursuant to the provisions of Chapter 1200-03-21
shall be issued a permit that contains the alternate standard with sufficient
provisions to ensure that any resulting emission limit has been demonstrated to
be quantifiable, accountable, enforceable and based upon replicable
procedures.
(ii) Permit
Duration - The Technical Secretary shall issue permits for a fixed term of 5
years in the case of affected sources, and for a term not to exceed 5 years in
the case of all other sources. Notwithstanding this requirement, the Technical
Secretary shall issue permits for solid waste incineration units combusting
municipal waste subject to standards under section 129(e) of the Federal Act
for a period not to exceed 12 years and shall review such permits at least
every 5 years.
(iii) Monitoring and
related recordkeeping and reporting requirements:
(I) Monitoring Requirements
I. The Technical Secretary shall prescribe
monitoring and related recordkeeping and reporting requirements in accordance
with the powers granted to him at Chapter 1200-03-10.
II. Where 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 shall be required sufficient to yield reliable data from the
relevant time period that are representative of the source's compliance with
the permit, as required pursuant to item 1200-03-09-.02(11)(e)1.(iii)(III).
Such monitoring requirements shall assure use of such terms, test methods,
units, averaging periods, and other statistical conventions consistent with the
applicable requirements. Recordkeeping provisions shall be sufficient to meet
the requirements of this subitem 1200-03-09-.02(11)(e)1.(iii)(I)II. if it is
the judgment of the Technical Secretary that recordkeeping alone is sufficient
to prove compliance; and
III. As
necessary, the Technical Secretary may impose requirements concerning the use,
maintenance, and where appropriate, installation of monitoring equipment or
methods.
(II) With
respect to recordkeeping, the permit shall incorporate all applicable
recordkeeping requirements and require, where applicable, the following:
I. 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 date(s) analyses were
performed;
C. The company or entity
that performed the analysis;
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.
II. Retention of records of all required
monitoring data and support information for a period of at least 5 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.
(III) With respect to reporting, the permit
shall incorporate all applicable reporting requirements and require the
following:
I. Submittal of reports of any
required monitoring at least every 180 days. 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 part
1200-03-09-.02(11)(d)4.
II. Prompt
reporting of deviations from permit requirements, including those attributable
to upset, malfunction or emergency conditions as defined in the permit and/or
Chapter 1200-03-20. The provisions of Rule
1200-03-20-.03 shall define
"prompt reporting" for periods in between the 180 day reports in subitem
1200-03-09-.02(11)(e)1.(iii)(III)I.
III. Digital data accumulation which utilizes
valid data compression techniques shall be acceptable for compliance
determination as long as such compression does not violate an applicable
requirement and its use has been approved in advance by the Technical
Secretary.
(iv) Permits issued to affected sources shall
contain a permit condition that prohibits emissions exceeding any allowances
that the source lawfully holds under title IV of the Federal Act of the Federal
regulations promulgated thereunder and Chapter 1200-03-30.
(I) The permittee shall not be subject to the
permit revision requirements of subparagraph 1200-03-09-.02(11)(f) for
increases in emissions that are authorized by allowances acquired pursuant to
the acid rain program, provided that such increases do not require a permit
revision under any other applicable requirement.
(II) 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.
(III) Any such allowance shall be accounted
for according to the procedures established in the Federal regulations
promulgated under title IV of the Federal Act and in State rules promulgated in
Chapter 1200-03-30.
(v)
The permit requirements of a permit issued pursuant to paragraph
1200-03-09-.02(11) are severable. A dispute regarding one or more permit
requirements in such a permit does not invalidate or otherwise excuse a
permittee from their duty to comply with the remaining portion of the
permit.
(vi) The following general
provisions shall appear on each permit issued pursuant to paragraph
1200-03-09-.02(11):
(I) The permittee shall
comply with all conditions of its permit. Except for requirements specifically
designated herein as not being federally enforceable, non-compliance with the
permit requirements is a violation of the Federal Act and the Tennessee Air
Quality Act and is grounds for enforcement action; for a permit termination,
revocation and reissuance, or modification; or for denial of a permit renewal
application. Non-compliance with permit conditions specifically designated
herein as not being federally enforceable is a violation of the Tennessee Air
Quality Act and may be grounds for these actions.
(II) The need to halt or reduce activity is
not a defense for noncompliance. 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 the
permit. However, nothing in this item shall be construed as precluding
consideration of a need to halt or reduce activity as a mitigating factor in
assessing penalties for noncompliance if the health, safety or environmental
impacts of halting or reducing operations would be more serious than the
impacts of continuing operations.
(III) 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.
(IV) The
permit does not convey any property rights of any sort, or any exclusive
privilege.
(V) The permittee shall
furnish to the Technical Secretary, within a reasonable time, any information
that the Technical Secretary may request in writing to determine whether cause
exists for modifying, revoking and reissuing, or termination of the permit or
to determine compliance with the permit. Upon request, the permittee shall also
furnish to the Technical Secretary copies of records required to be kept by the
permit. If the permittee claims that such information is confidential, the
Technical Secretary may review that claim and hold the information in protected
status until such time that the Board can hear any contested proceedings
regarding confidentiality disputes. If the information is desired by EPA, the
permittee may mail the information directly to EPA.
(vii) A permittee must pay fees in accordance
with rule
1200-03-26-.02 as a
cond
ition of its permit.
(viii) A permit revision will not be required
under any approved economic incentives, marketable permits, emissions trading
and other similar programs or process for changes that are provided for in the
permit.
(ix) Reasonable anticipated
operating scenarios may be established in the permit to address variable
operating modes at a source provided that each scenario is fully addressed in
the source's application. Such scenarios are permissible only if:
(I) The source, contemporaneously with making
a change from one operating scenario to another, shall record in a log at the
permitted facility the scenario under which it is operating;
(II) The terms and conditions of each such
alternate scenario shall meet all applicable requirements and the rules of
Division 1200-03. The Technical Secretary is authorized to extend the permit
shield described under part 1200-03-09-.02(11)(e)6. to all terms and conditions
under each operating scenario.
(x) An applicant in possession of a
certificate of alternate emission control issued pursuant to the provisions of
Chapter 1200-03-21 may trade emissions increases and decreases in the permitted
facility to the extent that said certificate allows for such trading. The
certificate and its terms shall be made part of the permit and must conform to
the following requirements:
(I) The
certificate's terms shall include all terms required under part
1200-03-09-.02(11)(e)1. and part 1200-03-09-.02(11)(e)3. to determine
compliance; and
(II) The
certificate terms must meet all other applicable requirements and the rules of
Division 1200-03 that were not altered by the certificate. The Technical
Secretary is authorized to extend the permit shield described in part
1200-03-09-.02(11)(e)6. to all terms and conditions that allow such increase
and decreases in emissions.
2. A permit issued under the provisions of
paragraph 1200-03-09-.02(11) is a permit issued pursuant to the requirements of
title V of the Federal Act and its implementing Federal regulations promulgated
at 40 C.F.R. Part
70. As such, the permittee is advised that:
(i) All terms and conditions in a permit
issued pursuant to paragraph 1200-03-09-.02(11) including any provisions
designed to limit a source's potential to emit, are enforceable by the
Administrator and citizens under the Federal Act.
(ii) Notwithstanding subpart
1200-03-09-.02(11)(e)2.(i), the Technical Secretary shall specifically
designate as not being federally enforceable under the Federal Act any terms
and conditions included in the permit that are not required under the Federal
Act or under any of its applicable requirements. Terms and conditions so
designated are not subject to the requirements of subparagraphs
1200-03-09-.02(11)(f) and 1200-03-09-.02(11)(g), other than those contained in
this part 1200-03-09-.02(11)(e)2.
3. All permits issued pursuant to paragraph
1200-03-09-.02(11) shall contain the following elements with respect to
compliance:
(i) Consistent with subpart
1200-03-09-.02(11)(e)1.(iii), 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 permit issued pursuant to paragraph 1200-03-09-.02(11) shall
contain a certification by a responsible official that meets the requirements
of part 1200-03-09-.02(11)(d)4.
(ii) 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 Technical Secretary or his
authorized representative to perform the following for the purposes of
determining compliance with the permit applicable requirements:
(I) Enter upon the permittee's at reasonable
times premises where a source subject to paragraph 1200-03-09-.02(11) is
located or emissions-related activity is conducted, or where records must be
kept under the conditions of the permit;
(II) Have access to and copy, at reasonable
times, any records that must be kept under the conditions of the
permit;
(III) Inspect at reasonable
times any facilities, equipment (including monitoring and air pollution control
equipment), practices, or operations regulated or required under the permit;
and
(IV) As authorized by chapter
1200-03-10, sample or monitor at reasonable times substances or parameters for
the purpose of assuring compliance with the permit or applicable
requirements.
(V) "Reasonable
times" shall be considered to be customary business hours unless reasonable
cause exists to suspect noncompliance with the Act, Division 1200-03 or any
permit issued pursuant thereto and the Technical Secretary specifically
authorizes an inspector to inspect a facility at any other time.
(iii) A schedule of compliance
consistent with that declared by the applicant or as otherwise modified by the
Technical Secretary utilizing the Board approved application forms in part
1200-03-09-.02(11)(d)3.
(iv) The
requirement that the permittee submit progress reports consistent with an
applicable schedule of compliance and part 1200-03-09-.02(11)(d)3. The reports
shall be submitted at least semiannually, or at a more frequent period if
specified in the applicable requirement or by the Technical Secretary. Such
progress reports shall contain the following:
(I) 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
(II) An explanation of why any dates in the
schedule of compliance were not or will not be met, and any preventative or
corrective measures adopted.
(v) The permit shall include requirements for
compliance certification with terms and conditions contained in the permit,
including emission limitations, standards, or work practices. Specifically, the
permits shall include each of the following:
(I) The frequency (not less than annually or
such more frequent periods as specified in the applicable requirement or by the
Technical Secretary) of submissions of compliance certifications;
(II) A means of monitoring the compliance of
the source with its emission limitations, standards and work practices. The
means of monitoring shall conform to subpart
1200-03-09-.02(11)(e)1.(iii).
(III)
A requirement that compliance certification include all of the following
(provided that the identification of applicable information may cross-reference
the permit or previous reports, as applicable):
I. The identification of each term or
condition of the permit that is the basis of the certification;
II. The identification of the method(s) 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
subpart 1200-03-09-.02(11)(e)1.(iii). 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 Act (see subitem
V.), which prohibits knowingly making a false certification or omitting
material information;
III. 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 subitem 1200-03-09-.02(11)(e)3.(v)(III)II. 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 subparagraph
1200-03-09-.02(11)(b) occurred; and
IV. Such other facts as the permitting
authority may require to determine the compliance status of the
source.
V. SECTION 113(c)(2) of the
Federal Act SEC. 113. FEDERAL ENFORCEMENT.
A.
Criminal Penalties.
B. Any person
who knowingly -
(A) Makes any false material
statement, representation, or certification in, or omits material information
from, or knowingly alters, conceals, or fails to file or maintain any notice,
application, record, report, plan, or other document required pursuant to this
Act to be either filed or maintained (whether with respect to the requirements
imposed by the Administrator or by a State);
(B) Fails to notify or report as required
under this Act; or
(C) Falsifies,
tampers with, renders inaccurate, or fails to install any monitoring device or
method required to be maintained or followed under this Act shall, upon
conviction, be punished by a fine pursuant to title 18 of the United States
Code, or by imprisonment for not more than 2 years, or both. If a conviction of
any person under this paragraph is for a violation committed after a first
conviction of such person under this paragraph, the maximum punishment shall be
doubled with respect to both the fine and imprisonment.
(IV) A requirement that
all compliance certifications be submitted to the Administrator as well as to
the Technical Secretary; and
(V)
Such additional requirements as may be specified pursuant to sections 114(a)(3)
and 504(b) of the Federal Act.
(vi) Any other compliance requirement deemed
necessary by the Technical Secretary may be imposed in the permit.
4. General Permits
(i) The Air Pollution Control Board may issue
general permits for the purpose of covering numerous similar sources that are
owned or operated by different persons at different facilities. A general
permit satisfies the definition of a rule pursuant to the Uniform
Administrative Procedures Act, T.C.A. §§
4-5-101 et seq. As such, general
permits must be promulgated as rules. The general permit must be subjected to
the notice and an opportunity for public participation, as specified in part
1200-03-09-.02(11)(f)8. Further, the general permit must comply with the other
requirements applicable to permits issued pursuant to paragraph
1200-03-09-.02(11). The permit must specify the eligibility criteria by which
sources may qualify for the general permit. The general permits shall state the
process by which a source notifies the Technical Secretary that it intends to
be authorized under the general permit. The general permit shall state the
means by which the Technical Secretary confirms that the source is covered by
the general permit or that the source requires an individual permit.
Notwithstanding the shield provisions of part 1200-03-09-.02(11)(e)6., the
source operating under the provisions of a general permit shall be subject to
enforcement action for operation without the permit required by paragraph
1200-03-09-.02(11) if the source requested coverage under a general permit by
representing themselves to be eligible for a general permit in their notice of
intent and it is later determined that the source does not qualify for the
eligibility terms and conditions 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 Act
or Chapter 1200-03-30.
(ii) Sources
subject to the provisions of paragraph 1200-03-09-.02(11) that would qualify
for a general permit must submit a notice of intent to the Technical Secretary
for coverage under the terms of the general permit or must apply for the
standard major stationary source operating permit consistent with subparagraph
1200-03-09-.02(11)(d) according to their choice of permitting routes as
detailed in this part 1200-03-09-.02(11)(e)4. The Board may, in the general
permit, provide for the requirements for the notice of intent which may deviate
from the requirements of subparagraph 1200-03-09-.02(11)(d), provided that they
meet the requirements of title V of the Federal Act, and include all
information necessary to determine qualifications for and to assure compliance
with, the general permit. When the Technical Secretary confirms that a source
may operate under the terms of a general permit, that action is not subject to
public participation under part 1200-03-09-.02(11)(f)8. and shall not be a
final permit action for purposes of judicial review.
5. Temporary Sources The Technical Secretary
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:
(i) Conditions that will assure compliance
with all applicable requirements at all authorized locations:
(ii) Requirements that the owner or operator
notify the Technical Secretary at least 10 days in advance of each change in
location; and
(iii) Conditions that
assure compliance with all other provisions of this paragraph
1200-03-09-.02(11).
6.
Permit Shield
(i) Except as provided in
paragraph 1200-03-09-.02(11), the Technical Secretary shall if requested by the
applicant, expressly include in a permit issued pursuant to paragraph
1200-03-09-.02(11) a provision stating that compliance with the conditions of
the permit shall be deemed compliance with any applicable requirements as of
the date of permit issue, provided that:
(I)
Such applicable requirements are included and are specifically identified in
the permit; or
(II) The Technical
Secretary, 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.
(ii) A permit
issued pursuant to paragraph 1200-03-09-.02(11) that does not expressly state
that a permit shield exists shall be presumed not to provide such a
shield.
(iii) Nothing in this part
or in any permit issued pursuant to paragraph 1200-03-09-.02(11) shall alter or
affect the following:
(I) The provisions of
section 303 of the Federal Act (emergency orders), including the authority of
the Administrator under that section. Similarly, the provisions of T.C.A.
§ 68-201-109 (emergency orders) including the authority of the Governor
under the section;
(II) 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;
(III) The applicable requirements of the acid
rain program, consistent with section 408(a) of the Federal Act; or
(IV) The ability of EPA to obtain information
from a source pursuant to section 114 of the Federal Act.
7. Emergency Provisions
(i) Definition. 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 emission limitation under the permit issued
pursuant to paragraph 1200-03-09-.02(11), 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
preventative maintenance, careless or improper operation, or operator error.
For the purposes of this definition, "permit issued pursuant to paragraph
1200-03-09-.02(11)" shall also include any construction permit issued under the
provisions of rule
1200-03-09-.01 to a source
subject to the permitting requirements of paragraph
1200-03-09-.02(11).
(ii) An
emergency constitutes an affirmative defense to an enforcement action brought
against a source for noncompliance with such technology based emission
limitations if the conditions of subpart 1200-03-09-.02(II)(e)7.(iii) are
met.
(iii) The affirmative defense
of the emergency shall be demonstrated through properly signed, contemporaneous
operating logs, or other relevant evidence that:
(I) An emergency occurred and that the
permittee can identify the probable cause(s) of the emergency. "Probable" must
be supported by a credible investigation into the incident that seeks to
identify the causes and results in an explanation supported by generally
accepted engineering or scientific principles.
(II) The permitted facility was at the time
being properly operated. In determining whether or not a facility was being
properly operated, the Technical Secretary shall examine the source's written
standard operating procedures which were in effect at the time of the
noncompliance and any other code as detailed below that would be relevant to
preventing the noncompliance. Adherence to the source's standard operating
procedures will be the test of adequate preventative maintenance, careless
operation, improper operation or operator error to the extent that such
adherence would prevent noncompliance. The source's failure to follow
recognized standards of practice to the extent that adherence to such a
standard would have prevented noncompliance will disqualify the source from any
claim of an emergency and an affirmative defense. The Board will specifically
recognize the National Fire Protection Association codes, the codes of the
American National Standards Institute, the codes of the American Society of
Testing Materials, the codes of the United States Department of Transportation,
the codes of the United States Occupational Safety and Health Administration
and any State of Tennessee statute or regulation if applicable. Recognition of
these codes, statutes, regulations and standards of practice is limited to the
test of determining whether or not a facility was operated properly for the
purposes of preventing actual (not potential)
noncompliance and in no way should it be viewed as the Board's imposition of
the standards administered by other agencies, Boards, or
organizations.
(III) During the
period of the emergency, the permittee took all reasonable steps to minimize
levels of emissions that exceeded the emission standards, or other requirements
in the permit.
(IV) The permittee
submitted notice of the emergency to the Technical Secretary according to the
notification criteria for malfunctions in rule
1200-03-20-.03. For the purposes
of this item 1200-03-09-.02(11)(e)7.(iii)(IV), "emergency" shall be substituted
for "malfunctions(s)" in rule
1200-03-20-.03 to determine the
relevant notification threshold. The notice shall include a description of the
emergency, any steps taken to mitigate emissions, and corrective actions
taken.
(iv) In any
enforcement proceeding the permittee seeking to establish the occurrence of an
emergency has the burden of proof.
(v) The provisions of this part
1200-03-09-.02(11)(e)7. are in addition to any emergency, malfunction or upset
requirement contained in Division 1200-03 or other applicable
requirement.
(f) Permit Issuance, Renewal, Reopening and
Revision
1. Action on an Application
(i) A permit, permit modification, or renewal
may be issued only if all of the following conditions have been met:
(I) The Technical Secretary 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 part 1200-03-09-.02(11)(e)4.;
(II) Except for modifications qualifying for
the minor permit modification procedures under subpart
1200-03-09-.02(11)(f)5.(ii) or subpart 1200-03-09-.02(11)(f)5.(iii), the
Technical Secretary has complied with the requirements for public participation
under part 1200-03-09-.02(11)(f)8.;
(III) The Technical Secretary has complied
with the requirements for notifying and responding to affected States under
part 1200-03-09-.02(11)(g)2.;
(IV)
The conditions of the permit provide for compliance with all applicable
requirements and the requirements of paragraph 1200-03-09-.02(11);
(V) The Administrator has received a copy of
the proposed permit and any notices required under part 1200-03-09-.02(11)(g)1.
and part 1200-03-09-.02(11)(g)2., and has not objected to the issuance of the
permit under part 1200-03-09-.02(11)(g)3. within the time period specified
therein.
(ii) Except as
otherwise required by subparagraph 1200-3-30-.06(4)(d) affected sources shall
have final action taken on permit applications filed with the Technical
Secretary within 18 months of the date that they file their complete permit
application. The Technical Secretary is authorized to set the due date of their
initial applications to mesh with their Phase II acid rain permit applications
such that their initial permit will contain both acid rain requirements and
standard emission/procedural requirements. The Technical Secretary is
instructed to consider any guidance promulgated by the Administrator relative
to meshing Title V and Title IV at affected facilities when setting such
application submittal dates.
(iii)
To the extent practicable, the Technical Secretary shall give priority to the
processing of operating permit applications to sources which are subject to
either paragraph 1200-03-09-.01(4) or paragraph 1200-03-09-.01(5). Sources
subject to paragraph 1200-03-09-.02(11) shall have final action taken on permit
applications filed with the Technical Secretary within 18 months of the date
that their application is deemed complete.
(iv) The Technical Secretary shall provide
notice to the applicant of whether the application is complete within 60 days
of receipt of an application in his office. Unless the Technical Secretary
requests additional information or otherwise notifies the applicant of
incompleteness within 60 days of receipt of an application, the application
shall be deemed complete. For modifications processed through minor permit
modification procedures, such as those in subpart 1200-03-09-.02(11)(f)5.(ii)
or subpart 1200-03-09-.02(11)(f)5.(iii) a completeness determination shall not
be required of the Technical Secretary. An application that defaults to
complete status through the Technical Secretary's failure to notify the
applicant of its incompleteness within 60 days of his receipt, does not relieve
the applicant of the duty to provide such supplemental information that the
Technical Secretary must have in order to process the permit
application.
(v) The Technical
Secretary 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 Technical Secretary shall send this
statement to EPA and to any other person provided that such person requests the
statement in writing and pays a fee sufficient to pay for postage, copying
costs and staff time to respond to the request.
(vi) The submittal of a complete operating
permit application shall not affect the requirement that any source have a
construction permit as required under rule
1200-03-09-.01.
2. Requirement for a Permit
Except as provided in the following sentence, item
1200-03-09-.02(11)(a)4.(i)(I) Section 502(b)(10) changes, and item
1200-03-09-.02(11)(f)5.(ii)(V) and item 1200-03-09-.02(11)(f)5.(iii)(V), no
source subject to paragraph 1200-03-09-.02(11) may operate after the time that
it is required to submit a timely and complete application as provided for in
subpart 1200-03-09-.02(11)(d)1.(i), except in compliance with a permit issued
pursuant to paragraph 1200-03-09-.02(11). Consistent with the provisions of
parts 1200-03-09-.02(11)(a)1. and 2., a source subject to paragraph
1200-03-09-.02(11) that submits a timely and complete application for permit
issuance (including for renewal) will not be considered in violation of
paragraph 1200-03-09-.02(11) until the Technical Secretary takes final action
on the permit application, except as otherwise noted in paragraph
1200-03-09-.02(11). If the final action on a permit by the Technical Secretary
has been appealed to the Board as a contested case, the application shield will
remain in effect until final action of the Board. This protection shall cease
to apply if, subsequent to the completeness determination made pursuant to
subpart 1200-03-09-.02(11)(f)1.(iv), and as required by subpart
1200-03-09-.02(11)(d)1(ii), the applicant fails to submit by the deadline
specified in writing by the Technical Secretary any additional information
identified as being needed to process the application.
3. Permit Renewal and Expiration
(i) Permits that are being renewed are
subject to the same procedural requirements, including those for public
participation, affected State and EPA review, that apply to initial permit
issuance; and
(ii) Consistent with
the provisions of part 1200-03-09-.02(11)(a)2. permit expiration terminates the
source's right to operate unless a timely and complete renewal application has
been submitted consistent with part 1200-03-09-.02(11)(f)2. and item
1200-03-09-.02(11)(d)1.(i)(III).
4. Administrative Permit Amendments
(i) An "administrative permit amendment" is a
permit revision that:
(I) Corrects
typographical errors;
(II)
Identifies a change in the name, address, or phone number of any person
identified in the permit, or provides a similar minor administrative change at
the source;
(III) Requires more
frequent monitoring or reporting by the permittee;
(IV) Allows for a change of ownership or
operational control of a source where the Technical Secretary determines that
no other change in the permit is necessary, provided that a transfer of
ownership permit application is filed consistent with the provisions of
paragraph 1200-03-09-.03(6) and further 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
Technical Secretary;
(V)
Incorporates into the operating permit issued pursuant to paragraph
1200-03-09-.02(11) the requirements of a construction permit issued pursuant to
rule
1200-03-09-.01 provided that the
construction permit meets the requirements of subparagraph
1200-03-09-.02(11)(f), subparagraph 1200-03-09-.02(11)(g) and the compliance
requirements of subparagraph 1200-03-09-.02(11)(e).
(ii) 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 Act and corresponding
regulations in Chapter 1200-03-30.
(iii) Administrative permit amendment
procedures shall be made according to the following criteria:
(I) The Technical Secretary shall take no
more than 60 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
he designates any such permit revisions as having been made pursuant to part
1200-03-09-.02(11)(f)4.
(II) After
making an administrative permit amendment, the Technical Secretary shall submit
a copy of the revised permit to the Administrator.
(III) The source may implement the changes
addressed in the request for an administrative amendment immediately upon
submittal of the request.
(iv) The Technical Secretary may extend the
permit shield as part of an administrative permit amendment revision consistent
with the provisions of part 1200-03-09-.02(11)(e)6. for such revisions made
pursuant to item 1200-03-09-.02(11)(f)4.(i)(V) which meet the relevant
requirements of subparagraph 1200-03-09-.02(11)(e), subparagraph
1200-03-09-.02(11)(f) and subparagraph 1200-03-09-.02(11)(g) for significant
permit modifications.
(v)
Proceedings to review and grant administrative permit amendments shall be
limited to only those parts of the permit for which cause to amend exists, and
not the entire permit.
5. Permit Modifications
(i) A permit modification is any revision to
a permit issued pursuant to paragraph 1200-03-09-.02(11) that cannot be
accomplished as an administrative permit amendment. 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 Act and corresponding
regulations at Chapter 1200-03-30. Proceedings to review and modify permits
shall be limited to only those parts of the permit for which cause to modify
the permit exists, and not the entire permit.
(ii) Minor permit modification procedures:
(I) Minor permit modification procedures may
be used only for those permit modifications that:
I. Do not violate any applicable
requirement;
II. Do not involve
significant changes to existing monitoring, reporting or recordkeeping
requirements in the permit;
III. Do
not require or change a case-by-case determination of an emission limitation or
other standard required by the Federal Act, or a source-specific determination
for temporary sources of ambient impacts as required by the Federal Act, or a
visibility or increment analysis as required by the Federal Act;
IV. 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. A federally enforceable
emissions cap assumed to avoid classification as a modification under any
provision of Title I of the Federal Clean Air Act. Further, federally
enforceable emission caps assumed to avoid classification as a modification
under Chapter 0400-30-38, Chapter 0400-30-39, Chapter 1200-03-31, paragraph (4)
of Rule
1200-03-09-.01, or paragraph (5)
of Rule
1200-03-09-.01 are included in
the criteria of this section.
B. An
alternate emission limit approved pursuant to section 112(i)(5) of the Federal
Act or rule
1200-03-31-.06;
V. Are not modifications under
Title I of the Federal Clean Air Act or the federal regulations promulgated
pursuant thereto. Further, the minor permit modification process may be used
only for changes that are not modifications under Chapter 0400-30-38, Chapter
0400-30-39, Chapter 1200-03-31, paragraph (4) of Rule
1200-03-09-.01, or paragraph (5)
of Rule
1200-03-09-.01; and
VI. Are not otherwise required in paragraph
1200-03-09-.02(11) to be processed as a significant
modification.
(II)
Application
An application requesting the use of minor permit
modification procedures shall meet the requirements of part
1200-03-09-.02(11)(d)3. and shall include the following:
I. A description of the change, the emissions
resulting from the change, and any new applicable requirements that will apply
if the change occurs;
II. The
source's suggested draft permit;
III. Certification by a responsible official,
consistent with part 1200-03-09-.02(11)(d)4., that the proposed modification
meets the criteria for use of minor permit modification procedures and a
request that such procedures be used; and
IV. Completed forms for the Technical
Secretary to use to notify the Administrator and affected States as required
under subparagraph 1200-03-09-.02(11)(g).
(III) EPA and affected State notification.
Within 5 working days of receipt of a complete permit
modification application the Technical Secretary shall notify the Administrator
and affected States of the requested permit modification consistent with the
provisions of subpart 1200-03-09-.02(11)(g)1.(i) and subpart
1200-03-09-.02(11)(g)2.(i). The Technical Secretary shall promptly send any
notice required under subpart 1200-03-09-.02(11)(g)2.(ii) to the
Administrator.
(IV) The
Technical Secretary shall not issue a final permit modification until after
EPA's 45-day review period or until EPA has notified the Technical Secretary
that EPA will not object to the issuance of the permit modification, whichever
is first, although the Technical Secretary can approve the permit modification
prior to that time. Within 90 days of the Technical Secretary's receipt of an
application under minor permit modification procedures or 15 days after the end
of the Administrator's 45-day review period under the provisions of subpart
1200-03-09-.02(11)(g)3., whichever is later, the Technical Secretary shall:
I. Issue the permit modifications as
proposed; or
II. Deny the permit
modification application; or
III.
Determine that the requested modification does not meet the minor permit
modification criteria and should be reviewed under the significant modification
procedures; or
IV. Revise the draft
permit modification and transmit to the Administrator the new proposed permit
modification as required by part 1200-03-09-.02(11)(g)1.
(V) The source may make the change proposed
in its minor permit modification immediately after it files such application.
After the source makes the change allowed by the preceding sentence, and until
the Technical Secretary takes any of the actions specified in subitems
1200-03-09-.02(11)(f)5.(ii)(IV)I.-III. 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.
(VI) Permit
Shield - The permit shield under part 1200-03-09-.02(11)(e)6. may not extend to
minor permit modifications.
(VII)
Reserved.
(iii) Group
processing of minor permit modifications:
A source may group its applications for certain modifications
eligible for minor permit modification processing according to the following
requirements:
(I) Criteria - Group
processing of modifications may be used only for those permit modifications:
I. That meet the criteria for minor permit
modification procedures under item 1200-03-09-.02(11)(f)5.(ii)(I);
and
II. That are collectively below
the
least of the following threshold criteria levels:
A. 10 percent of the emissions allowed by the
permit for the emissions unit for which the change is requested;
B. 20 percent of the applicable definition of
"major source" in part 1200-03-09-.02(11)(b)14.; or
C. 5 tons per
year.
(II)
Application
An application requesting the use of the group processing of
minor permit modifications procedure shall meet the requirements of part
1200-03-09-.02(11)(d)3. and shall include the following:
I. A description of the change, the emissions
resulting from the change, and any new applicable requirements that will apply
if the change occurs;
II. The
source's suggested draft permit;
III. Certification by a responsible official
consistent with part 1200-03-09-.02(11)(d)4., that the proposed modification
meets the criteria for use of group processing procedures and a request that
such procedures be used.
IV. 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 subitem
1200-03-09-.02(11)(f)5.(iii)(I)II.
V. Certification, consistent with the
provisions of part 1200-03-09-.02(11)(d)4., that the source has notified EPA of
the proposed modification. Such notification need only contain a brief
description of the requested modification.
VI. Completed forms for the Technical
Secretary to use to notify the Administrator and affected States as required
under subparagraph 1200-03-09-.02(11)(g).
(III) EPA and affected State Notification;
On a quarterly basis or within 5 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 subitem
1200-03-09-.02(11)(f)5.(iii)(I)II., whichever is earlier, the Technical
Secretary promptly shall meet his obligation under subpart
1200-03-09-.02(11)(g)1.(i) and subpart 1200-03-09-.02(11)(g)2.(i) to notify the
Administrator and affected States of the requested permit modifications. The
Technical Secretary shall send any notice required under subpart
1200-03-09-.02(11)(g)2.(ii) to the Administrator.
(IV) Timetable for issuance;
The provisions of item 1200-03-09-.02(11)(f)5.(ii)(IV) shall
apply to modifications eligible for group processing except that the Technical
Secretary shall take one of the actions specified in subitems
1200-03-09-.02(11)(f)5.(ii)(IV)I. through IV. within 180 days of receipt of the
application or 15 days after the end of the Administrator's 45 day review
period under part 1200-03-09-.02(11)(g)3., whichever is later.
(V) Source's ability to make
change;
The provisions of item 1200-03-09-.02(11)(f)5.(ii)(V) shall
apply to modifications eligible for group processing.
(VI) Permit Shield The provisions of item
1200-03-09-.02(11)(f)5.(ii)(VI) shall apply to modifications eligible for group
processing.
(iv)
Significant modification procedures
(I)
Criteria
Significant modification procedures shall be used for
applications requesting permit modifications that do not qualify as minor
permit modifications or as administrative amendments. In addition to the
criteria of the preceding sentence, a relaxation of monitoring, reporting or
recordkeeping requirements shall be considered significant. In the event that
the Technical Secretary issues a statement of clarification to clarify a permit
requirement that is ambiguous or otherwise unclear, such clarification will not
be considered a significant modification if it results in the less restrictive
interpretation, provided however, that the less restrictive interpretation was
the intent of the Technical Secretary in issuing the original permit
requirement. Nothing herein shall be construed to preclude the permittee from
making changes consistent with paragraph 1200-03-09-.02(11) that would render
existing permit compliance terms and conditions irrelevant.
(II) Significant modifications shall meet all
requirements of paragraph 1200-03-09-.02(11) including those for applications,
public participation, review by affected States, and review by EPA, as they
apply to permit issuance and permit renewal. The Technical Secretary shall
endeavor to process all significant permit modification requests within 9
months after receipt of a complete application. The Technical Secretary is
directed to program the resources of the Department's Division of Air Pollution
Control such that at least 51 percent of the significant modification requests
are processed within the 9 month period on a calendar year basis.
6. Reopening for Cause
(i) 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:
(I)
Additional applicable requirements under the Federal Act become applicable to a
major source subject to paragraph 1200-03-09-.02(11) with a remaining permit
term of 3 or more years. Such a reopening shall be completed not later than 18
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 has been extended
pursuant to part 1200-03-09-.02(11)(a)2.
(II) Additional requirements (including
excess emission requirements) become applicable to an affected source under the
acid rain program. Upon approval by the Administrator, excess emissions offset
plans shall be deemed to be incorporated into the permit.
(III) The Technical Secretary or EPA
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.
(IV) The
Technical Secretary or EPA determines that the permit must be revised or
revoked to assure compliance with the applicable requirements.
(ii) Proceedings to reopen and
issue a permit shall follow the same proceedings as apply to initial permit
issuance and shall affect only those parts of the permit for which cause to
reopen exists, and not the entire permit. Such reopening shall be made as
expeditiously as practicable.
(iii)
Reopening under subpart 1200-03-09-.02(11)(f)6.(i) shall not be initiated
before a notice of such intent is provided to the permittee by the Technical
Secretary at least 30 days in advance of the date that the permit is to be
reopened except that the Technical Secretary may provide a shorter time period
in the case of an emergency. An emergency shall be established by the criteria
of T.C.A. § 68-201-109 or other compelling reasons that public welfare is
being adversely effected by the operation of a source that is in compliance
with its permit requirements.
7. Reopenings for Cause by EPA
(i) If the Administrator finds that cause
exists to terminate, modify, or revoke and reissue a permit pursuant to part
1200-03-09-.02(11)(f)6., he is required under federal rules to notify the
Technical Secretary and the permittee of such findings in writing. Upon receipt
of such notification, the Technical Secretary shall investigate the matter in
order to determine if he agrees or disagrees with the Administrator's findings.
If he agrees with the Administrator's findings, the Technical Secretary shall
conduct the reopening in the following manner:
(ii) The Technical Secretary shall within 90
days after receipt of such notification, forward to EPA a proposed
determination of termination, modification, or revocation and reissuance, as
appropriate. If the Administrator grants additional time to secure permit
applications or additional information from the permittee, the Technical
Secretary shall have the additional time period added to the standard 90 day
time period.
(iii) EPA will
evaluate the Technical Secretary's proposed revisions and respond as to their
evaluation.
(iv) If EPA agrees with
the proposed revisions, the Technical Secretary shall proceed with the
reopening in the same manner prescribed under subparts
1200-03-09-.02(11)(f)6.(ii) and (iii).
(v) If the Technical Secretary disagrees with
either the findings of the Administrator that a permit should be reopened or an
objection of the Administrator to a proposed revision to a permit submitted
pursuant to subpart 1200-03-09-.02(11)(f)7.(ii), he shall bring the matter to
the Board at its next regularly scheduled meeting for instructions as to how he
should proceed. The permittee shall be required to file a written brief
expressing their position relative to the Administrator's objection and have a
responsible official present at the meeting to answer questions of the Board.
If the Board agrees that EPA is wrong in their demand for a permit revision,
they shall instruct the Technical Secretary to conform to EPA's demand, but to
issue the permit under protest preserving all rights available for litigation
against EPA.
8. Public
Participation
(i) Except for modifications
qualifying for minor permit modifications procedures, all permit proceedings,
including initial permit issuance, significant modifications and renewals,
shall provide adequate procedures for public notice including offering an
opportunity for public comment and a hearing on the draft permit. These
procedures shall include the following:
(I)
Notice shall be given via electronic notice on the Department's website or by
other means designated by the Technical Secretary if necessary to assure
adequate notice to the affected public. Should newspaper publication of the
notice be deemed necessary the applicant shall bear the expense of publishing
the newspaper notice in a newspaper of general circulation in the area where
the source is located. The electronic notice shall be available for the
duration of the public comment period and any notice under this item shall
include the notice of public comment, the draft permit, information on how to
access the administrative record for the draft permit, and how to request
and/or attend a public hearing on the draft permit. Notice shall also be given
by the Technical Secretary to persons on a mailing list who meet the following
criteria:
I. Such persons shall request to be
on the list in writing on an annual basis.
II. Such persons shall pay a fee of $10.00
per year to the Department to defray the cost of postage and handling and list
management.
(II) The
notice shall identify the facility to be permitted; the name and address of the
permittee; the Technical Secretary and his address; the activity or activities
involved in the permit action; the emission change involved in any permit
modification; the name, address and telephone number of a person from whom
interested parties may obtain additional information, including copies of the
permit draft, the application, all relevant supporting materials including the
source's compliance plan and monitoring reports, and all other materials
available to the Technical Secretary that are relevant to the permit decision.
These materials will be placed in a public depository for public inspection.
Those persons unwilling to view these materials at the public depositories may
request copies to be mailed to them at a cost of $0.50 (50 cents) per page. The
notice shall also include a brief description of the comment procedure
specified in part 1200-03-09-.02(11)(f)8.; 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);
(III) The Technical Secretary shall provide
such notice and opportunity for participation by affected States as is provided
for by subparagraph 1200-03-09-.02(11)(g);
(IV) The Technical Secretary shall provide at
least 30 days for public comment and shall give notice of any public hearing at
least 30 days in advance of the hearing.
(V) The Technical Secretary shall keep a
record of the commentors and also of the issues raised during the public
participation process so that the Administrator may fulfill his obligation
under Section 505(b)(2) of the Federal Act to determine whether a citizen
petition may be granted, and such records shall be available to both the public
and the applicant.