Section 19-0311. Operating permit program for sources subject to federal Clean Air Act

1.  The  department  shall  establish  an operating permit program for
  sources subject to Title V of the Act. Upon approval of such program  by
  the  administrator, the following sources of regulated air contaminants,
  hereinafter referred to as "sources", shall obtain an  operating  permit
  pursuant to this section:
    a. major stationary sources;
    b.  any  source,  including  an  area  source,  subject to a standard,
  limitation or other requirement under section 7412 of  the  Act,  except
  that  a source is not required to obtain an operating permit pursuant to
  this section solely because it is subject to  regulation  under  section
  7412(r) of the Act;
    c.  sources  subject  to  a  standard, limitation or other requirement
  under section 7411 of the Act;
    d. affected sources pursuant to Title IV of the Act; and
    e. any source in a source category designated by the  commissioner  in
  regulation,  which  shall be the same as the list of sources promulgated
  by the administrator pursuant to the Act.
    2. In implementing this section, the department shall:
    a. review and revise, as necessary to be consistent with the  Act  and
  other applicable federal and state laws, existing regulations to provide
  for  adequate,  streamlined  and  reasonable  procedures  for processing
  permit applications, for  public  notice  and  participation,  including
  offering  an  opportunity  for  public  comment  and  hearing,  and  for
  expeditious review of permit actions, including  applications,  renewals
  and revisions;
    b.  notwithstanding the provisions of paragraph i of this subdivision,
  establish regulations for a  phased  schedule  for  acting  on  complete
  permit  applications. Such schedule shall ensure that at least one-third
  of such permits shall be acted upon by the department  annually  over  a
  period  of  three  years  after the administrator approves the operating
  permit program;
    c.  promulgate  regulations,  consistent  with  the  Act   and   other
  applicable federal and state laws, for expeditiously determining whether
  an  application for a permit is complete. Such regulations shall specify
  that, in order to be deemed complete, an application shall include:
    (i) source identification information;
    (ii) a description of the source's processes and products by  Standard
  Industrial  Classification Code, including any associated with alternate
  scenarios identified by the source;
    (iii) an identification and  description  of  emissions  and  emission
  points,  including  rates  of  such  emissions  in  sufficient detail to
  establish the basis for the fees and applicability  of  requirements  of
  the Act;
    (iv)  an identification of pollution control activities and compliance
  monitoring devices or activities;
    (v) any limitations on operations or any work practice standards;
    (vi) any  calculations  on  which  the  information  provided  to  the
  department is based;
    (vii) citation and description of all applicable requirements in state
  and federal law;
    (viii) a description of or reference to any applicable test method for
  determining compliance with applicable requirements;
    (ix)  information  determined  necessary  by  the department to define
  alternative operating scenarios identified by the permit applicant;
    (x) compliance plans;
    (xi) schedules of compliance;

    (xii) schedules for submission of certified progress reports;
    (xiii) a compliance certification;
    (xiv) completed forms as required under Title IV of the Act;
    (xv)  certification  by  a  responsible  official that the information
  submitted is true, accurate and complete; and
    (xvi) any other information required by the Act  or  other  applicable
  federal  or  state laws and implementing regulations. Provided, however,
  that applications for permit revisions  need  contain  such  information
  only  to  the  extent  required  by  the  Act or regulations promulgated
  thereunder.
    d. determine, consistent with subdivision 3 of section 70-0117 of this
  chapter, whether  an  application  is  complete  within  sixty  days  of
  receipt,   provided   that   if   the  department  does  not  make  such
  determination within sixty days, the application is deemed complete.  If
  the  department  deems  the application to be incomplete, the department
  must, consistent with subdivision 1 of section 70-0109 of this  chapter,
  provide   a  written  explanation  of  any  deficiencies  found  in  the
  application;
    e. provide for issuance,  after  notice  and  opportunity  for  public
  comment,  of  a  general  permit  covering  numerous similar sources for
  purposes of complying with Title V of the  Act  or  this  article.  Such
  regulations  shall  ensure  that  the  general  permit complies with all
  requirements applicable under the Act and this  chapter  and  identified
  criteria   by  which  sources  may  qualify  for  such  general  permit.
  Notwithstanding subdivision five of this section, the  source  shall  be
  subject  to  enforcement  action  for  operation without a permit if the
  source is determined not to qualify for the conditions and terms of  the
  general permit. Such regulations shall require that any source proposing
  to  operate  pursuant  to  a general permit shall request such permit in
  writing, and the department shall respond to  such  request  in  writing
  within sixty days;
    f. provide that a single permit will be issued for each source, except
  upon  request of a source. In no case shall the determination of whether
  a source is subject to the requirement to  obtain  an  operating  permit
  pursuant  to this section be affected by the application for or issuance
  of more than one operating permit for that source. In no  case  shall  a
  source  which  has been issued multiple permits be allowed to make minor
  modifications  which,  in  the  aggregate,  would   be   a   significant
  modification  if the source had been issued a single permit, unless such
  source  complies  with  all  of  the  requirements  for  a   significant
  modification;
    g.  provide for issuance of a single permit authorizing emissions from
  similar operations at multiple temporary locations, provided  that  such
  permit  shall  not  be  issued  unless  it includes conditions that will
  ensure compliance with the requirements of this chapter and the  Act  at
  all authorized locations and unless it requires the owner or operator to
  notify the department in advance of each change in location;
    h. establish provisions for notifying each state which is within fifty
  miles  of  a  source  that has submitted an application for an operating
  permit. Such notifications shall be consistent with section 7661d of the
  Act and  Article  70  of  this  chapter  and  the  state  administrative
  procedure act;
    i.  take  final  action on a permit application within eighteen months
  after the date of receipt of a complete application. Notwithstanding any
  other provision of law, in the event the department fails to  act  on  a
  complete  permit  application  or  a complete permit renewal application
  within eighteen months, such failure shall be treated as a final  agency
  action solely for the purpose of judicial review; and

    j.   require   revisions   to   a  permit  to  incorporate  applicable
  requirements under the Act or state law if the remaining permit term  is
  three years or more. If the permit term is three years or more or if the
  permit  has been extended pursuant to paragraph b of subdivision five of
  this  section,  such revision shall be completed not later than eighteen
  months after promulgation of the applicable requirement.
    k. provide an exemption  from  regulation  with  respect  to  volatile
  organic  compounds  for  any  bakery facility which (i) derives at least
  fifty percent of its revenues from retail sales  on  premises,  or  (ii)
  utilizes only batch ovens in its baking process. A "batch oven" shall be
  defined  as  a non-conveyor belt oven operating on a single baking cycle
  in which a determinate amount of product is cooked at one baking.
    3. Operating permits issued pursuant to this section shall include the
  following conditions:
    a. emissions limitations or standards including standards  established
  by  the  Act  and  this  article,  and  references  to the origin of and
  authority for each term and condition;
    b. provisions for a fixed permit  term,  not  to  exceed  five  years,
  unless  a  shorter  term  is  requested  by the source or the department
  determines a shorter term is appropriate, except if a different term  is
  required to comply with the Act;
    c.  provisions  for  detailed monitoring, recordkeeping and reporting,
  including requirements that records be kept for  five  years,  and  that
  monitoring  records  be  submitted  to the department at least every six
  months, provided, however, that, unless required by the Act,  continuous
  emissions  monitoring  need  not  be required if alternative methods are
  available that provide sufficiently reliable and timely information  for
  determining compliance;
    d.  A  prohibition on emissions in excess of any allowances held by an
  affected source under Title IV of the Act;
    e. terms and conditions, if requested by the source, for  the  trading
  of  emissions  increases  and decreases within a facility, to the extent
  applicable requirements provide for such trading;
    f. provisions for  alternative  operating  scenarios  where  a  source
  identifies  such  scenarios  in  its  permit  application for department
  approval, and where such scenarios are approved by the department;
    g. provisions for  emergencies  beyond  the  control  of  the  source;
  notwithstanding  section  71-2109  of this chapter, an "emergency" shall
  mean any situation arising  from  sudden  and  reasonably  unforeseeable
  events  beyond  the  control  of  the  source,  which situation requires
  immediate corrective action to restore normal operation and which causes
  the source to exceed a technology-based emission  limitation  under  the
  permit,  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;
    h. identification of the  terms  of  the  permit  that  are  federally
  enforceable;
    i.   provisions   for   inspection,   entry,   monitoring,  compliance
  certification and reporting to assure compliance with the  permit  terms
  and conditions;
    j. unless inconsistent with the Act, provisions for confidentiality of
  proprietary   information   pursuant   to  subdivision  two  of  section
  eighty-seven of the public officers  law,  and  regulations  promulgated
  thereunder;
    k.  provisions  to  allow an existing source to voluntarily make early
  reduction(s) in hazardous air pollutants, pursuant  to  section  7412(I)
  (5)  of  the  Act,  and  provisions to establish emissions standards for

  hazardous air pollutants on a case-by-case  basis  pursuant  to  section
  7412(d),  (g) and (j) of the Act in the event the administrator fails to
  meet the deadlines established pursuant to section 7412(e)  of  the  Act
  for  the promulgation of such standards applicable to a source or source
  category;
    l.  provisions  that  no  existing  source  that  has  installed  best
  available control technology (as defined in section 7479(3) of the Act),
  or  technology  required  to  meet a lowest achievable emission rate (as
  defined in section 7501 of the Act), prior  to  the  promulgation  of  a
  standard applicable to such source under section 7412(d) and (j) for the
  same  pollutant  (or  stream  of pollutants) shall be required to comply
  with such standard under this section until the date  five  years  after
  the  date  on which such installation or reduction has been achieved, as
  determined by the department;
    m. provision  for  a  severability  clause  to  ensure  the  continued
  validity of the various permit conditions in the event of a challenge to
  any portion of a permit;
    n.  provisions to allow that, for any performance or emission standard
  or other requirement established for a source prior to the  issuance  of
  an  operating  permit,  such  permit  may  contain a compliance schedule
  requiring the source to achieve compliance as soon  as  practicable  but
  not  later  than  the  time  required  by  the  Act  or  this article or
  regulations promulgated thereunder;
    o. provisions requiring compliance with all conditions of the  permit,
  and  requiring that noncompliance be grounds for enforcement action; for
  permit termination, revocation  and  reissuance,  or  revision;  or  for
  denial of a permit renewal application;
    p. provisions allowing for changes within a source without requiring a
  permit  revision  provided that such changes are not modifications under
  Title I of the Act and the changes do not exceed the emissions allowable
  under the permit; provided, however, that the source  must  provide  the
  department  with  written notification at least seven days in advance of
  the proposed changes;
    q. provisions specifying the conditions under which the permit may  be
  reopened   and  revised  prior  to  the  expiration,  as  prescribed  by
  regulation, and providing that reopenings shall not be initiated  before
  a  notice  of such intent is provided to the source by the department at
  least thirty days in advance of the  date  that  the  permit  is  to  be
  reopened,  except  that the department may provide a shorter time period
  in the case of an emergency; and
    r. other conditions necessary to assure compliance with  the  Act  and
  other applicable federal and state laws and implementing regulations.
    4.   a.  The  department  shall  provide  adequate,  streamlined,  and
  reasonable procedures  for  expeditiously  processing  applications  for
  minor   permit   modifications,   as   defined   in  regulations.  Minor
  modifications may include those that:
    (i) do not violate any applicable requirement of this article  or  the
  Act;
    (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 standard, or a source specific determination for
  temporary sources of ambient  impacts,  or  a  visibility  or  increment
  analysis;
    (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 to, including but not limited to

  federally enforceable emissions caps assumed to avoid classification  as
  a  modification  under any provision of Title I or emissions limitations
  approved pursuant to section 7412(i)(5) of the Act; or
    (v) do not constitute a modification under Title I of the Act.
    b.  Upon  application by a source for a minor permit modification, the
  department shall determine whether such application is  complete  within
  fifteen days after receipt of such application and whether such proposed
  modification  is  minor  within  twenty-five  days after receipt of such
  application.  The  department  may  require  public   notice   of   such
  application   and   the   department's   determination  of  whether  the
  modification is minor. If such modification is deemed minor, the  source
  may  proceed with the modification. The department shall approve or deny
  a minor permit modification within ninety days  of  the  receipt  of  an
  application  under this subdivision or fifteen days after the end of the
  administrator's  forty-five  day  review  period  pursuant  to   section
  7661d(b)(1)  of the Act, whichever is later, unless such modification is
  treated as a new application. The provisions of subdivision five of this
  section are not applicable  to  minor  modifications  until  the  source
  receives the final approval from the department.
    5. a. The department shall include in a permit issued pursuant to this
  section  a  provision stating that compliance with the conditions of the
  permit shall be deemed compliance with the  applicable  requirements  of
  the Act as of the date of permit issuance, provided that:
    (i)  such  applicable  requirements are specifically identified in the
  permit; or
    (ii) the department, in acting on the permit application or  revision,
  determines  in  writing  that other requirements specifically identified
  are  not  applicable  to  the  source,  and  the  permit  includes   the
  determination  or  a  concise  summary  thereof.  Provided  further that
  nothing herein shall preclude the department from revising  or  revoking
  the  permit  pursuant  to  article  seventy  of  this  chapter  or  from
  exercising its summary abatement authority  under  sections  71-0301  or
  71-1719 of this chapter.
    b.   Consistent   with   section   four   hundred  one  of  the  state
  administrative procedure act, the terms and conditions of a  permit  are
  automatically continued pending final determination by the department on
  a  request  for  renewal or initial application for an operating permit,
  provided a permittee has made a timely and complete application and paid
  the fees pursuant to section 72-0303 of this chapter.