Tenn. Comp. R. & Regs. 1200-03-09-.02 - OPERATING PERMITS

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(1) Any person planning to operate an air contaminant source constructed or modified in accordance with a construction permit issued by the Technical Secretary in Rule 1200-03-09-.01 shall apply for and receive from the Technical Secretary an operating permit or, if applicable, submit a notice of intent and obtain a notice of coverage or authorization after initial start-up of the air contaminant source. Ninety (90) days shall be allowed for this, provided paragraph (3) of this rule is complied with. This time period is extended from ninety (90) to one hundred twenty (120) days if stack sampling has been required as a condition on the construction permit, which is further extended to sixty (60) days after the stack sampling report is required on the construction permit if a certain time is specified, provided the stack sampling report is filed with the Division within sixty (60) days of initial start-up or the time specified on the construction permit and paragraph (3) of this rule is complied with, except as otherwise allowed in paragraph (11) of this rule.

(2) No person shall operate an air contaminant source in Tennessee without first obtaining from the Technical Secretary an operating permit or, if applicable, submitting a notice of intent and obtaining a notice of coverage or authorization, except as specifically exempted in Rule 1200-03-09-.04. New sources operating with a valid construction permit may operate with the construction permit for the time period specified in paragraph (1) of this rule, except as otherwise allowed in paragraph (11) of this rule.

(3) Application for an operating permit shall be made on forms available from the Technical Secretary and signed by the applicant. Such application for an operating permit shall be filed with the Technical Secretary.

(a) Not less than sixty (60) days prior to the expiration of an existing operating permit.

(b)

1. Not more than thirty (30) days after initial start-up of an air contaminant source constructed or modified in accordance with a construction permit issued by the Technical Secretary.

2. If stack sampling or other test data has been required as a condition on the construction permit, this time period is extended to the time specified on the construction permit for submittal of the test report(s). In no case shall this period exceed the period allowed in the applicable regulation.

(4) Sources that do not comply with the requirements of Division 1200-03 or any permit issued thereunder shall have their operating permit applications processed in the following manner:

(a) Sources subject to the requirements of paragraph 1200-03-09-.02(11) shall be subject to a compliance schedule in their permit in accordance with the provisions of that paragraph.

(b) Sources that are not subject to the requirements of paragraph 1200-03-09-.02(11) shall be issued temporary operating permits containing a schedule of corrective action for returning to compliance that is acceptable to the Technical Secretary. The schedule shall require the permittee to file a written report or their progress toward compliance with the Technical Secretary no later than 10 days after the passage of each increment in the schedule.

(5) Any person in possession of an operating permit shall maintain said operating permit readily available for inspection by the Technical Secretary or his designated representative on the operating premises. A person required by these regulations to have one or more operating permits shall keep at least one operating permit prominently and conspicuously displayed on the operating premises.

(6) Operation of each air contaminant source shall be in accordance with the provisions and stipulations set forth in the operating permit, all provisions of these regulations, and all provisions of the Tennessee Air Quality Act. However, some excursions, as defined under part 1200-03-09-.02(11)(b) 31., or as defined in the operating permit, which occur during periodic monitoring for compliance assurance at an air contaminant source subject to paragraph 1200-03-09-.02(11), may be excused by the Technical Secretary, and this authority is not extended to excursions that demonstrate noncompliance with an applicable emission limitation.

(7) The owner or operator of any air contaminant source to which any of the following changes are made, but would not be a modification requiring a construction permit, must notify the Technical Secretary thirty (30) days before the change is commenced. These changes are:

(a) Change in air pollution control equipment,

(b) Change in stack height or diameter,

(c) Change in exit velocity (of more than twenty five percent (25%) or exit temperature of more than fifteen percent (15%) (absolute temperature basis).

(8) Any stack sampling report required on a construction permit is part of the operating permit application. Any stack sampling report required on an operating permit is a part of the application for renewal of that operating permit.

(9) The owner or operator of any air contaminant source subject to an order or variance issued so as to allow the source by its terms to operate while exceeding an emission standard, shall pay the cost of publication of any notices (including, but not limited to, a copy of the order) required by state or federal law or regulations to effectuate the right of continued operation.

(10) Those sources possessing a valid permit on the date Chapter 1200-03-19 becomes effective and subject to a specified compliance schedule in Chapter 1200-03-19 must comply with all the requirements contained in the permit and the requirements of Rule 1200-03-09-.02. All permits shall expire on the date the emission standard specified in Chapter 1200-03-19 becomes effective. If a source possessing a valid operating permit and subject to a specified compliance schedule contained in Chapter 1200-03-19 fails to comply with the specified schedule, such permit will be revoked upon notification that the source has not complied with the schedule and opportunity for hearing by the Technical Secretary.

(11) Major Stationary Source Operating Permits

(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 1200-03-11, 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 CFR 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 CO2equivalent emissions.

(ii) The term tpy CO2equivalent emissions (CO2e) 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 CFR 98 - Global Warming Potentials, and summing the resultant value for each to compute a tpy CO2e.

(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.

1. The following air contaminant sources are subject to the requirements of paragraph 1200-03-09-.02(11):

(i) Any major source;

(ii) Any source, including an area source, subject to a standard, limitation, or other requirement under section 111 of the Federal Act, part 1200-03-07-.07(4), part 1200-03-07-.07(5) or Chapter 1200-03-16;

(iii) Any source, including an area source, subject to a standard or other requirement under section 112 of the Federal Act, Chapter 1200-03-11, or Chapter 1200-03-31 except that a source is not required to obtain a permit solely because it is subject to regulations or requirements under section 112(r) of the Federal Act or Chapter 1200-03-32;

(iv) Any affected source; and

(v) Any source in a source category designated by the Administrator or Technical Secretary pursuant to the federal 40 C.F.R. Part 70 rules (FR Vol 57, No. 140, Tuesday, July 21, 1992 p 32295-32312) or this paragraph respectively.

2. The following air contaminant sources are exempt from the requirements of paragraph 1200-03-09-.02(11):

(i) All non-major sources including those subject to Section 112 of the Federal Act or Chapter 1200-03-11 or Chapter 1200-03-31 and section 111 of the Federal Act or Chapter 1200-03-16. If the Administrator promulgates future regulations which prohibit the exemption of a non-major source from the requirements of paragraph 1200-03-09-.02(11), such source will be so permitted by the Technical Secretary. Upon the Administrator's written notification to the Technical Secretary that such sources must be permitted according to the provisions of this paragraph 1200-03-09-.02(11), the Technical Secretary shall notify the sources that the applications are due within 180 days of his written notice. The Technical Secretary shall have up to 90 days to accomplish the notification commencing upon his notification from the Administrator.

(ii) An affected source does not qualify for exemption from the provisions of paragraph 1200-03-09-.02(11) even if it is a non-major source.

(iii) A solid waste incinerator unit that is required to obtain a permit pursuant to section 129(e) of the Federal Act does not qualify for exemption from the provisions of paragraph 1200-03-09-.02(11) even if it is a non-major source.

(iv) All sources and source categories that would be required to obtain a permit solely because they are subject to 40 C.F.R. part 60, Subpart AAA -Standards of Performance for New Residential Wood Heaters are exempt from the provision of paragraph 1200-03-09-.02(11).

(v) All sources and source categories that would be required to obtain a permit solely because they are subject to 40 C.F.R. part 61, Subpart M - National Emissions Standard for Hazardous Air Pollutants for Asbestos, section 61.145, Standard for Demolition and Renovation are exempt from the provision of paragraph 1200-03-09-.02(11).

3. Sources subject to paragraph 1200-03-09-.02(11) shall have all applicable requirements specified in their permit for all relevant emission units in the major source except those emission units which are exempted from permitting in rule 1200-03-09-.04.

4. Sources subject to paragraph 1200-03-09-.02(11) must declare their fugitive emissions in their permit application and the Technical Secretary must regulate the fugitive emissions as terms of their permit.

5. Unless specifically exempted elsewhere in this paragraph 1200-03-09-.02(11), research and development facilities shall be considered as a separate and discrete stationary source in determining whether such facilities constitute a major source subject to the operating permit requirements. Except where research and development facilities by themselves constitute a major source, such facilities shall be exempt from the permit requirements of paragraph 1200-03-09-.02(11), but not from any other permitting requirements of Chapter 1200-03-09.

(d) Permit Applications -

1. The owner or operator of a source subject to paragraph 1200-03-09-.02(11) has a duty to submit a timely and complete permit application in accordance with this part. The timelines for application under the provision of paragraph 1200-03-09-.02(11) supersede the application deadlines specified in paragraphs 1200-03-09-.02(1), (3) and (10).

(i) Timely application.

(I) A timely initial application for a source subject to the provisions of paragraph 1200-03-09-.02(11) is one that is submitted within 120 days of the Technical Secretary's written notification to the source that such application must be filed or as stipulated on their construction permit. The Technical Secretary will not require an application to be filed, either by written notification or imposition of a construction permit condition until the Administrator approves the Governor's Part 70 program submittal, filed in accordance with 40 C.F.R. Part 70.4. Application notices shall be served over a period of time in accordance with the Board's approved schedule. The Technical Secretary shall submit a proposed schedule for Board approval and incorporation into the State Major Source Fee Workload Analysis as a Board Order no later than March 1, 1994.

(II) Sources subject to the provisions of paragraph 1200-03-09-.01(4), paragraph 1200-03-09-.01(5) and/or rule 1200-03-31-.05 apply for an operating permit according to the schedule prescribed on their construction permit. The Technical Secretary shall allow sufficient time to prepare the application, but in no case shall the time allotted to file an application exceed 360 days commencing upon startup of the constructed source.

(III) A timely renewal application for a source subject to the provisions of paragraph 1200-03-09-.02(11) is one that is submitted at least 180 days, but no more than 270 days prior to the expiration of an existing major source operating permit.

(IV) Applications for initial phase II acid rain permits shall be submitted to the Technical Secretary by January 1, 1996 for sulfur dioxide, and by January 1, 1998 for nitrogen oxides.

(V) Construction occurring under the provisions of rule 1200-03-09-.01 at a source already in possession of a major source operating permit issued pursuant to the provisions of paragraph 1200-03-09-.02(11) shall be governed by the following:

I. Sources shall designate in their construction permit application the route that they desire to follow for the purposes of incorporating the newly constructed sources into their existing operating permit. The Technical Secretary shall use that information to prepare the operating permit application submittal deadlines in their construction permit.

II. Sources desiring the permit shield shall choose the administrative amendment route of subpart 1200-03-09-.02(11)(f) 4.(iv) or the significant modification route of subpart 1200-03-09-.02(11)(f) 5.(iv).

III. Sources desiring expediency instead of the permit shield shall choose the minor permit modification procedure route of subpart 1200-03-09-.02(f) 5.(ii) or group processing of minor modifications under the provisions of subpart 1200-03-09-.02(11)(f) 5.(iii) as applicable to the magnitude of their construction.

(VI) Existing sources making the transition from an existing operating permit to an initial major source operating permit consistent with the provisions of part 1200-03-09-.02(11)(a) 1. shall continue to construct under the provision of rule 1200-03-09-.01 and supplement their major source operating permit application in accordance with the provisions of part 1200-03-09-.02(11)(d) 2.

(VII) Existing sources that were not initially subject to the provisions of paragraph 1200-03-09-.02(11), but later became subject through a change in operations such that their potential to emit crosses the applicability threshold of paragraph 1200-03-09-.02(11), shall file their major source operating permit application within 360 days of their start up of such operations that caused them to cross the major source operating permit applicability provisions of paragraph 1200-03-09-.02(11).

(ii) Complete Application

(I) The owner or operator of a source that is subject to the provisions of paragraph 1200-03-09-.02(11) shall file a complete application for a major source operating permit. Applications shall be made on forms approved by the Board and available from the Technical Secretary. The applications shall be evaluated for completeness by using the Board's approved checklist. The checklist list shall be made available to applicants to assist them in preparing a complete application. "Insignificant Activities" designated as those activities or emission/production thresholds listed at rule 1200-03-09-.04 and their listing, if required under rule 1200-03-09-.04, in the permit application shall be governed by the Board's approved forms, instruction sheets and check lists. In addition to the information requested on the application forms, the applicant shall provide sufficient information to determine which applicable requirements will apply to the source and whether or not the source is in compliance with the applicable requirements. The application must be signed and dated by a responsible official attesting to its accuracy in accordance with part 1200-03-09-.02(11)(d) 4.

I. The application shall be dated and stamped as to its date of receipt in the Office of the Technical Secretary.

II. Sixty (60) days will be allotted to the Technical Secretary from his receipt of the application for the purpose of determining whether or not the application is complete according to the Board-approved completeness checklist. This timeline is not applicable to minor modifications conducted under the provisions of subparts 1200-09-.02(11)(f) 5.(ii) & (iii).

III. The applicant must file an application for the entire source upon initial application and for renewal applications. Applications for a permit revision need only address the portions of the source impacted by the revision.

IV. The Technical Secretary shall have up to 60 days from his receipt of the application to review an application for completeness. At the conclusion of that period, the Technical Secretary shall notify the applicant of his findings in writing. In the absence of his timely notification that an application is incomplete, an application will be considered to be complete. Such status is limited to only provide enforcement immunity for the applicant for failing to have filed a complete application and to place them in an application shield status. Should the Technical Secretary find that additional information is necessary to properly evaluate the application, the applicant must provide the additional information in accordance with the Technical Secretary's written request which will set a reasonable deadline to provide the information. The source may operate under the authority of their most recent permit consistent with the application shield provisions of part 1200-03-09-.02(11)(f) 2., provided that the application is determined or deemed to be complete and further provided that the applicant submits any requested additional information by the deadline specified by the Technical Secretary. However, the source shall abide by the terms of its most recently issued permit until final action is taken upon their application.

(iii) Confidential Information:

A source which claims that its information is confidential is subject to a review of confidentiality. If the Technical Secretary determines that the information should not be protected as confidential, he shall notify the source in writing and hold the information in protected status until such time that the Board can resolve the dispute via a contested case hearing. During this time of dispute, the applicant will be required to make a direct submittal of the information to the Administrator if the EPA desires to review the disputed information being used to prepare the permit. The following information shall not be considered confidential:

(I) The composition and quantity of air contaminants emitted from the facility.

(II) The applicable requirements that a source must fulfill and the source's compliance status with each applicable requirement.

(III) The business name, address, and location of the source and the name of the source's responsible official.

(IV) Any other information which the Board may determine through a hearing of the matter.

2. The owner or operator of a source subject to paragraph 1200-03-09-.02(11) has a duty to supplement or correct their application upon discovery that their application was incorrect or failed otherwise to address any facts relevant to permitting at the source. The applicant must also provide additional information as necessary to address any requirements that become applicable to the source after the date that it has filed a complete application but prior to the release of a draft permit.

3. The Board has approved and mandated the use of permit applications, instruction sheets and a completeness checklist which should facilitate the applicant's duty to provide all of the information required by 40 C.F.R. Part 70.5(c) and (d). Those requirements are printed on the completeness checklist and that information is the primary basis by which an application shall be judged for completeness. Application must be made using the forms available from the Technical Secretary. The Technical Secretary may request a refilling of applications that are illegible, vague or ambiguous. In such cases, the timelines for action on the application will restart when the clarified application is received.

4. Any application form, report, or compliance certification submitted pursuant to the requirements of paragraph 1200-03-09-.02(11) shall contain certification by a responsible official of truth, accuracy and completeness. This certification and any other certification required under paragraph 1200-03-09-.02(11) shall state that, based on information and belief formed after reasonable inquiry, the statements and information in the document are true, accurate and complete.

(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 condition 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 Act. Further, federally enforceable emission caps assumed to avoid classification as a modification under Chapter 1200-03-11, Chapter 1200-30-16, Chapter 1200-03-31, paragraph 1200-03-09-.01(4) or paragraph 1200-03-09-.01(5) are included in the criteria of this section 1200-03-09-.02(11)(f) 5.(ii)(I)IV.A.

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 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 1200-03-11, Chapter 1200-03-31, Chapter 1200-03-16, paragraph 1200-03-09-.01(4) or paragraph 1200-03-09-.01(5); 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.

(g) Permit Review by EPA and Affected States

1. Transmission of Information to the Administrator

(i) The Technical Secretary shall provide a copy of each permit application submitted pursuant to the provisions of paragraph 1200-03-09-.02(11) to the Administrator. Upon agreement with the Administrator the Technical Secretary is permitted to send less than a complete copy to the Administrator as long as the Administrator is satisfied with the level of detail in the partial submittal. Additionally, the Technical Secretary shall provide the Administrator a copy of each proposed permit and each final permit that will be issued to a source subject to the provisions of paragraph 1200-03-09-.02(11).

(ii) The Technical Secretary shall keep for 5 years such records and submit to the Administrator such information as the Administrator may reasonably require to ascertain whether or not the provisions of paragraph 1200-03-09-.02(11) are being followed.

2. Review by affected States

(i) The Technical Secretary shall give notice of each draft permit prepared pursuant to the provisions of paragraph 1200-03-09-.02(11) to any affected State on or before the time that he provides this notice to the public under part 1200-03-09-.02(11)(f) 8., except to the extent that subpart 1200-03-09-.02(11)(f) 5.(ii) or subpart 1200-03-09-.02(11)(f) 5.(iii) requires the timing of the notice to be different. The affected State review and comment period shall close simultaneously with the closure of the public review and comment period. The affected States will have thirty days to review and comment upon minor modifications.

(ii) The Technical Secretary shall notify the Administrator and any affected State in writing of his refusal to accept all recommendations for the proposed permit that the affected State submitted during the public or affected State review period. Said notice shall be filed when the proposed permit is sent to the Administrator or as soon as possible after the submittal for minor permit modification procedures allowed under subpart 1200-03-09-.02(11)(f) 5.(ii) or subpart 1200-03-09-.02(11)(f) 5.(iii). The notice shall include the Technical Secretary's reasons for not accepting any such recommendation. The Technical Secretary is not required to accept recommendations that are not based upon applicable requirements or the requirements of 40 C.F.R. Part 70.

3. EPA Objection

(i) No permit for which an application must be transmitted to the Administrator under part 1200-03-09-.02(11)(g) 1. shall be issued if the Administrator objects to its issuance in writing within 45 days of receipt of the proposed permit and its level of supporting information as prescribed in subpart 1200-03-09-.02(11)(g) 1.(i).

(ii) The Technical Secretary shall respond to the objections of the Administrator and restructure the permit consistent with the provisions of the Federal Act, federal regulations promulgated thereunder or any lawfully promulgated federal policy and the provisions of the State Act, the regulations comprising Division 1200-03 and any policies of the Board.

4. Public Petitions to the Administrator

Any person can petition the Administrator to object to a permit according to the criteria of 40 C.F.R. 70.8(d). An objection to a permit by the Administrator that is filed in response to a public petition under the provisions of paragraph 40 C.F.R. 70.8(d) shall be answered by the Technical Secretary in the same manner prescribed by subpart 1200-03-09-.02(11)(g) 3.(ii). If the Technical Secretary has issued the permit prior to the Administrator's objection in response to a public petition, the Administrator's modification, revocation or termination of the issued permit shall not cause the source to be in violation of the requirement to have submitted a timely and complete application as specified in part 1200-03-09-.02(11)(d) 1. and in keeping with the application shield provisions of part 1200-03-09-.02(11)(f) 2. If the Technical Secretary disagrees with the Administrator's objections and demand for revision of the permit, the provisions of subpart 1200-03-09-.02(11)(f) 7.(v) shall apply.

(12) The Technical Secretary may elect to issue minor source combination construction/operating permits. Sources issued such permits are considered to be in compliance with paragraph (1) of Rule 1200-03-09-.01 and paragraphs (1), (2), and (3) of this rule if all conditions in the permit are complied with and the permittee applies for renewal of the operating permit as specified in the permit.

Notes

Tenn. Comp. R. & Regs. 1200-03-09-.02

Original rule certified June 7, 1974. Amendment filed and effective February 9, 1977. Amendment filed and effective March 21, 1979. Amendment filed May 17, 1990; effective July 1, 1990. Amendment filed July 8, 1994; effective September 20, 1994. Amendment filed May 11, 1998; effective July 25, 1998. Amendment filed October 15, 1998; effective December 28, 1998. Amendment filed November 12, 1998; effective January 26, 1999. Amendment filed December 14, 1999; effective February 27, 2000. Amendment filed December 30, 1999; effective March 14, 2000. Amendments filed February 24, 2009; effective May 10, 2009. Amendments filed November 10, 2010; effective February 8, 2011. Amendment filed August 29, 2011; effective November 27, 2011. Amendment filed September 11, 2015; effective December 10, 2015. Amendments filed May 17, 2017; effective August 15, 2017. Amendments filed June 6, 2018; effective September 4, 2018. Amendments filed October 23, 2020; effective 1/21/2021.

Authority: T.C.A. §§ 4-5-201 through 4-5-231 and 68-201-101 through 68-201-121.

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