310 CMR, 7, C
(1) Definitions: Terms used in 310 CMR 7.00: Appendix C are defined at 310 CMR 7.00: Definitions or in 310 CMR 7.00: Appendix C. Where a term is defined in both 310 CMR 7.00: Definitions and in 310 CMR 7.00: Appendix C, the definition in 310 CMR
Affected Source means a source that includes one or more affected units.
Affected State means any state:
(a) Whose air quality may be affected and is contiguous to Massachusetts; or
(b) Which is located within 50 miles of a facility subject to the operating permit and compliance program in Massachusetts.
Affected Unit means a fossil fuel fired combustion device subject to the emission reduction requirements or limitations under Title IV (Acid Rain) of 42 U.S.C. 7401.
Allowance means an authorization by the Administrator of the United States Environmental Protection Agency (EPA) under the Acid Rain Program, to emit up to one ton of sulfur dioxide during or after a specified calendar year.
Applicable Requirement means all of the following as they apply to emissions units or control equipment in a facility subject to the requirements of 310 CMR 7.00: Appendix C. This includes requirements that have been promulgated or approved by EPA through rule making at the time of issuance but have future-effective compliance dates:
(a) Any standard or other requirement provided for in the applicable implementation plan, contained at 310 CMR 7.00 approved or promulgated by EPA through rulemaking under 42 U.S.C. 7401, Title I that implements the relevant requirements of 42 U.S.C. 7401, including any revisions to that plan promulgated in 40 CFR Part 52;
(b) Any term or condition of any approval issued by the Department pursuant to any regulation under 310 CMR 7.00 which has been approved or promulgated through rulemaking under 42 U.S.C. 7401, Title I, including parts C or D (310 CMR 7.00: Appendix A or 40 CFR 52.21 PSD approvals), of 42 U.S.C. 7401;
(c) Any standard or other requirement under 42 U.S.C. 7401, The Clean Air Act, § 111, including § 111(d) (New Source Performance Standards (NSPS));
(d) Any standard or other requirement under 42 U.S.C. 7401, The Clean Air Act, § 112, including any requirement concerning accident prevention under 42 U.S.C. 7401, The Clean Air Act, § 112(r)(7) (National Emission Standard for Hazardous Air Pollutants
(NESHAPS));
(e) Any standard or other requirement of the acid rain program under Title IV of 42 U.S.C. 7401 or the regulations promulgated thereunder;
(f) Any requirement(s) established pursuant to 42 U.S.C. 7401, § 504(b) (monitoring and analysis) or § 114(a)(3) (enhanced monitoring 40 CFR Part 64 regulations);
(g) Any standard or other requirement governing solid waste incineration, under 42 U.S.C. 7401, The Clean Air Act, § 129;
(h) Any standard or other requirement for consumer and commercial products, under 42 U.S.C. 7401, The Clean Air Act § 183(e);
(i) Any standard or other requirement for tank vessels under 42 U.S.C. 7401, The Clean Air Act, § 183(f);
(j) Any standard or other requirement of the program to control air pollution from outer continental shelf sources, under 42 U.S.C. 7401, § 328;
(k) Any standard or other requirement of the regulations promulgated to protect stratospheric ozone under 42 U.S.C. 7401, Title VI, unless the EPA has determined that such requirements need not be contained in an operating permit;
(l) Any national ambient air quality standard or increment or visibility requirement under 42 U.S.C. 7401, Title I, part C but only as it would apply to temporary sources permitted pursuant to 42 U.S.C. 7401, § 504(e); and
(m) Any other standard or requirement contained in 310 CMR 7.00 that has not been approved or promulgated by EPA through rulemaking under 42 U.S.C. 7401, Title I. These applicable requirements would be listed as a "state only" enforceable provision of an operating permit.
Carbon Dioxide Equivalent, or CO e, means the amount of GHG emitted by a facility, computed by multiplying the mass amount of emissions in tons per year for each of the six greenhouse gases in the pollutant GHG, by each gas's associated global warming potential set forth in 40 CFR part 98 subpart A Table A-1 - Global Warming Potentials, and summing the resultant value for each to compute tons per year CO2e.
Complete Application means an application, filed on form(s) specified by the Department, that is completed consistent with the criteria set forth in the instructions for the application form(s). To be deemed complete, an application must provide all information required pursuant to 310 CMR 7.00: Appendix C(5)b., except that applications for permit modifications or amendments need supply such information only if it is related to the proposed change. Information submitted must be sufficient to evaluate the subject source(s) and its application; and to determine all applicable requirements, and shall be submitted over the signature of a responsible official who certifies the submitted information is in accordance with 310 CMR 7.00: Appendix C(5)(b)9. and (5)(c). The source(s)' ability to operate without a permit, as set forth in 310 CMR 7.00: Appendix C(11) (application shield), shall be in effect from the date the application is determined or deemed to be complete until the final permit is issued, provided that the applicant submits any requested additional information by the deadline specified by the Department.
Designated Representative shall have the meaning given to it in 42 U.S.C. 7401, § 402(26) and the regulations promulgated thereunder.
Draft Permit means the version of an operating permit which is released for an opportunity for comment by the public, EPA or an affected state in compliance with 310 CMR 7.00: Appendix C(6)(a) prior to the Department's final decision on an operating permit application.
Emergency means any situation arising from sudden and reasonably unforeseeable events beyond the control of the source, including acts of God, which situation would require immediate corrective action to restore normal operation, and that causes the source to exceed a technologybased 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, operator error or decision to keep operating despite knowledge of any of these things.
Emissions Unit(s) means any part or activity of a facility that emits or has the potential to emit any regulated air pollutant or any pollutant listed under 42 U.S.C. 7401, the Clean Air Act, § 112(b). This term is not meant to alter or affect the definition of the term "unit" for purposes of 42 U.S.C. 7401, Title IV (the acid rain provisions). Further clarification of the scope of "emission unit(s)" is provided by the Department by policy.
Emissions Allowable Under the Permit means a federally enforceable permit term or condition determined at issuance to be required by an applicable requirement that establishes an emissions limit (including a work practice standard), or a federally enforceable emissions cap.
Facility means any installation or establishment and associated equipment, located on the same, adjacent or contiguous property, capable of emissions and are under control of the same person.
Final Operating Permit means the version of an operating permit issued by the Department that has completed all review procedures required by 310 CMR 7.00: Appendix C including EPA review.
Fugitive Emissions are those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally-equivalent opening.
General Operating Permit means a standardized operating permit that the Department may make applicable to numerous similar operation(s) or facilities under 310 CMR 7.00: Appendix C(15).
GHG Mass Basis means the sum of the mass amount of emissions in tons per year of the six greenhouse gases in the pollutant GHG prior to multiplying by each gas's associated global warming potential set forth in 40 CFR part 98 subpart A Table A-1 - Global Warming Potentials.
Greenhouse Gas (GHG) means the air pollutant that is the aggregate of the group of six gases: Carbon dioxide (CO2), Methane (CH4), Nitrous oxide (N2O), Hydrofluorocarbons (HFCs), Perfluorocarbons (PFCs), and Sulfur hexafluoride (SF6).
Hazardous Air Pollutant (HAP) means an air contaminant listed by EPA as a HAP, pursuant to 42 U.S.C. 7401, § 112. That list is incorporated by reference in 310 CMR 7.00: Appendix C, together with all amendments and supplements thereto. A copy of the list is available from the Department.
Laboratory Hoods means a boxlike non-production structure intended for placement on a table or bench; the bench and the hood may be one integral structure. The opening(s) is provided with a sash or sashes that move vertically or horizontally to close the opening(s). Provisions are made for exhausting air from the top or back of the hood, and adjustable internal baffles are provided to obtain air flow distribution across the open face(s). Laboratory hoods may include those used for special purposes such as, but not limited to, capturing gases from equipment such as atomic absorption, gas chromatograph, liquid pouring or mixing stations and heat sources. It may additionally include floor mounted hoods with sash and/or doors for closing the open face.
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 310 CMR 7.00: Appendix CMajor Source. For the purpose 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. Notwithstanding the previous statement, for the purpose of determining major source under 42 U.S.C. 7412, The Clean Air Act, §112, all hazardous air pollutants as defined under 42 U.S.C. 7412, The Clean Air Act, § 112 shall be summed regardless of the SIC code classification of the process emitting said pollutant(s).
(a) A major source under 42 U.S.C. 7401, The Clean Air Act § 112 which is defined as: 1. 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, ten tons per year (tpy) or more of any hazardous air pollutant which has been listed pursuant to 42 U.S.C. 7401, The Clean Air Act, § 112(b), 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
2. For radionuclides, "major source" shall have the meaning specified by the Administrator by rule.
(b) A major stationary source of air pollutants, as defined in 42 U.S.C. 7602, The Clean Air Act, § 302, that directly emits or has the potential to emit, 100 tpy or more of any air pollutant (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 42 U.S.C. 7602, The Clean Air Act, § 302(j), unless the source belongs to one of the following categories of stationary source:
1. Coal cleaning plants (with thermal dryers);
2. Kraft pulp mills;
3. Portland cement plants;
4. Primary zinc smelters;
5. Iron and steel mills;
6. Primary aluminum ore reduction plants;
7. Primary copper smelters;
8. Municipal incinerators capable of charging more than 250 tons of refuse per day;
9. Hydrofluoric, sulfuric, or nitric acid plants;
10. Petroleum refineries;
11. Lime plants;
12. Phosphate rock processing plants;
13. Coke oven batteries;
14. Sulfur recovery plants;
15. Carbon black plants (furnace process);
16. Primary lead smelters;
17. Fuel conversion plant;
18. Sintering plants;
19. Secondary metal production plants;
20. Chemical process plants;
21. Fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal units per hour heat input;
22. Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels;
23. Taconite ore processing plants;
24. Glass fiber processing plants;
25. Charcoal production plants;
26. Fossil-fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input; or
27. All other stationary source categories regulated by a standard promulgated under 42 U.S.C. 7411 and 7412, The Clean Air Act, §§ 111 and 112.
(c) A major stationary source as defined in 42 U.S.C. 7401, Title I, part D, including:
1. For ozone non attainment 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 ten tpy or more in areas classified as "extreme"; except that the references in this paragraph to 100, 50, 25, and ten tpy of nitrogen oxides shall not apply with respect to any source for which the Administrator has made a finding, under 42 U.S.C. 7401, The Clean Air Act, § 182(f)(1) or (2), that requirements under 42 U.S.C. 7401, The Clean Air Act, § 182(f) do not apply;
2. For ozone transport regions established pursuant to 42 U.S.C. 7401, The Clean Air Act, § 184 sources with the potential to emit 50 tpy or more of volatile organic compounds;
3. For carbon monoxide non attainment areas:
a. that are classified as "serious," and
b. 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
4. For particulate matter (PM-10) non attainment areas classified as "serious," sources with the potential to emit 70 tpy or more of PM-10.
Operating Permit means any permit or group of permits covering emission unit(s) at a facility subject to the permitting requirement of 310 CMR 7.00: Appendix C that is issued, renewed, amended or revised pursuant to 310 CMR 7.00: Appendix C.
Permit Modification means a revision to any operating permit issued under 310 CMR 7.00: Appendix C that does not meet the requirements for an administrative amendment.
Proposed Permit means the version of a permit that the Department proposes to issue and forwards to the EPA for review in compliance with 310 CMR 7.00: Appendix C(6) and 40 CFR 70.8.
Regulated Air Pollutant means the following:
(a) Nitrogen oxides or any volatile organic compound;
(b) Any pollutant for which a national ambient air quality standard has been promulgated; (c) Any pollutant that is subject to any standard promulgated under 42 U.S.C. 7401, The Clean Air Act, § 111, New Source Performance Standard 40 CFR Part 60;
(d) Any Class I or II substance subject to a standard promulgated under or established by 42 U.S.C. 7401, Title VI; or
(e) Any pollutant subject to a standard promulgated under 42 U.S.C. 7401, The Clean Air Act, § 112, National Emissions Standards for Hazardous Air Pollutants, 40 CFR Part 61 , or other requirements established under 42 U.S.C. 7401, The Clean Air Act, § 112, including §§ 112(g), (j), and (r), including the following:
1. Any pollutant subject to requirements under 42 U.S.C. 7401, § 112(j). If the EPA fails to promulgate a standard by the date established pursuant to 42 U.S.C. 7401, The Clean Air Act, § 112(e), 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 42 U.S.C. 7401, The Clean Air Act, § 112(e); and
2. Any pollutant for which the requirements of 42 U.S.C. 7401, § 112(g)(2) have been met, but only with respect to the individual source subject to 42 U.S.C. 7401, § 112(g)(2) requirement.
Renewal means the process by which a permit can be reissued at the end of its term or earlier should the Department determine a modification meets the requirements of renewal.
Responsible Official means one of the following:
(a) 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:
1. the facilities employ more than 250 persons or have gross annual sales or expenditures exceeding $25 million (in second quarter 1980 dollars); or
2. the delegation of authority to such representative is approved in advance in writing by the Department;
(b) For a partnership or sole proprietorship: a general partner or the proprietor, respectively;
(c) 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
(d) For affected sources:
1. The designated representative insofar as actions, standards, requirements, or prohibitions under 42 U.S.C. 7401, Title IV or the regulations promulgated thereunder are concerned; and
2. The designated representative for any other purposes under 310 CMR 7.00: Appendix C(4).
Section 502(b)(10) Changes are changes that contravene an expressed operating permit term but would not violate any applicable requirement(s) or contravene federally enforceable permit term(s) and condition(s) that are monitoring (including test methods), record keeping, reporting, or compliance certification requirements.
Stationary Source means any building, structure, facility, or installation that emits or may emit any regulated air pollutant or any pollutant listed under 42 U.S.C. 7401, § 112(b). "Building, structure, facility, or installation" means all of the pollutant-emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person.
Timely means, with respect to an application for an operating permit or permit revision, in accordance with a time frame as set forth in 310 CMR 4.00: Timely Action Schedule and Fee Provisions and 7.00: Appendix C.
(2) Applicability.
(a) 310 CMR 7.00: Appendix C applies to any facility which:
1. emits or has federal potential emissions, in the aggregate, including from exempt and insignificant activities, of any regulated air pollutant in an amount which equals or exceeds any one of the following: 50 tons per year of VOC; 50 tons per year of NOx; ten tons per year of any hazardous air pollutant (HAP) subject to 42 U.S.C. 7401§ 112, 25 tons per year of any combination of HAPs; or 100 tons per year of any other regulated air pollutant, excluding GHGs; or
2. is subject to a standard or other requirements under 42 U.S.C. 7401, § 112 (NESHAPS), except that a facility is not required to obtain a permit solely because it is subject to the regulation or requirements under 42 U.S.C. 7401, § 112(r) (accidental release); or
3. is subject to a New Source Performance Standard (NSPS), including an area source requirement, or other requirements under 42 U.S.C. 7401, § 111; or
4. is an affected source as defined in 42 U.S.C. 7401, Title IV (acid rain provisions); or 5. is in any other source category designated by the EPA pursuant to 40 CFR, § 70.3(a)(5) or pursuant to a rulemaking under 42 U.S.C. 7401, §§ 111 or 112 where EPA promulgates a standard for a source category and EPA determines not to exempt any or all non-major sources subject to that standard from the requirement to obtain an operating permit.
(b) Any non-major source for which an operating permit is required under 310 CMR 7.00: Appendix C(2)(a)2. through 3., which is not an affected source under 42 U.S.C. 7401, Title IV or a solid waste incineration unit required to obtain a permit pursuant to 42 U.S.C. 7401, § 129(e), is deferred from the obligation to obtain an operating permit until such time as the Department and EPA complete a rulemaking, including a rule making by EPA under 42 U.S.C. 7401, §§ 111 or 112, to determine how the operating permit program should be structured for non-major sources, and the appropriateness of any permanent exemptions. Notwithstanding the previous sentence, any non-major source which becomes subject to a rulemaking promulgated by EPA pursuant to 42 U.S.C. 7401§§ 111 or 112 ("NSPS, NESHAPs or MACT") on or after July 21, 1992, where the rulemaking explicitly requires the source to obtain an operating permit, shall submit an operating permit application in accordance with the schedule established in that rulemaking. Where the rulemaking defers to the regulating authority, the application is due on the date that is one year after the date on which the source becomes subject to the rulemaking.
(c) Any source listed in 310 CMR 7.00: Appendix C(2)(b) deferred from the requirement to obtain a permit may elect to apply for an operating permit pursuant to 310 CMR 7.00: Appendix C.
(d) Notwithstanding 310 CMR 7.00: Appendix C(2)(a), a facility is not subject to this Appendix if the only applicable requirement which applies to the facility is:
1. A requirement pursuant to 40 CFR Part 60, Subpart AAA - Standards of Performance for New Residential Wood Heaters; or
2. A requirement pursuant to 40 CFR Part 61, Subpart M - National Emission Standard for Hazardous Air Pollutants for Asbestos, section 61.145, Standard for Demolition and Renovation.
(e) For the purpose of determining applicability under 310 CMR 7.00: Appendix C(2)(a), an owner or operator may elect to treat any part(s) of a facility used solely for research and development (R&D) operations, co-located with a major source, as a separate facility providing; 1) the SIC code for the R&D part of the facility differs from the rest of the facility; and 2) the relationship between the functions of the R&D part of the facility and the remainder of the facility does not involve support of the latter by the former.
(f) An owner or operator of a facility subject to 310 CMR 7.00: Appendix C may elect to be relieved from the requirement to obtain an operating permit under 310 CMR 7.00: Appendix C. To be eligible, one of the following must be complied with:
1. A source specific SIP revision which has been approved by EPA;
2. Restricted emission status issued pursuant to 310 CMR 7.02(9); or
3. A construction, substantial reconstruction or modification plan approval issued pursuant to 310 CMR 7.02(1) which limits the potential emissions of the total facility below the applicability thresholds stated at 310 CMR 7.00: Appendix C(2)(a); or 4. Operating in accordance with the requirements of 310 CMR 7.02(11).
(3) General Provisions.
(a) 1. On or before June 30, 1996, person(s) owning or operating a facility subject to the requirements of 310 CMR 7.00: Appendix C based upon their operations in calendar years 1990, 1991, 1992 or 1993, and not electing to comply with a federally approved option listed at 310 CMR 7.00: Appendix C(2)(f) shall enroll with the Department.
2. On or after July 1, 1996, any owner or operator of a facility shall automatically be enrolled when subject to 310 CMR 7.00: Appendix C.
(b) Any owner or operator of a facility subject to the requirements of 310 CMR 7.00: Appendix C shall submit a complete application for a permit according to time frames specified in 310 CMR 7.00: Appendix C(4)(a) and 310 CMR 4.00, and shall operate in compliance with the terms and conditions of a permit issued pursuant to 310 CMR 7.00: Appendix C.
(c) Permits shall be for a fixed term of five years in the case of affected sources, and for a term not to exceed five years in the case of all other facilities. Notwithstanding this requirement, permits for solid waste incineration units combusting municipal waste subject to standards under 42 U.S.C. 7401, § 129(e) shall be issued for a period not to exceed 12 years and reviewed by the Department at least every five years.
(d) No person shall cause, suffer, allow or permit the operation of any facility subject to 310 CMR 7.00: Appendix C:
1. Unless a timely and complete application for an operating permit or renewal has been submitted to the Department;
2. If the facility's operating permit has expired unless a timely and complete application pursuant to 310 CMR 7.00: Appendix C(4) has been submitted to the Department;
3. If the facility's operating permit has been revoked;
4. Unless all fees required pursuant to 310 CMR 4.00 have been remitted to the Department or waived by the Department in accordance with 310 CMR 4.00; and
5. If modified, unless the procedures in 310 CMR 7.00: Appendix C(7) and/or (8) as applicable, have been complied with.
(e) An initial operating permit, permit modification, or renewal may be issued only if all of the following conditions have been met:
1. A complete application for a permit, general permit, permit modification, or permit renewal has been received and reviewed by the Department;
2. Except for modifications qualifying for minor permit modification procedures under 310 CMR 7.00: Appendix C(8), the requirements for public participation contained in 310 CMR 7.00: Appendix C(6) have been complied with;
3. The requirements for notifying and responding to affected States under 310 CMR 7.00: Appendix C(6) has been complied with;
4. The conditions of the permit provide for compliance with all applicable requirements and the requirements of 310 CMR 7.00: Appendix C; and
5. The EPA has received a copy of the proposed permit and any notices required under 310 CMR 7.00: Appendix C(6), and has not objected to issuance of the permit within the time period specified therein.
(f) Any facility subject to 310 CMR 7.00: Appendix C and operating without an operating permit, or failing to comply with any of the terms of its operating permit; or any provision of 310 CMR 7.00: Appendix C; or any order issued by the Department pursuant to 310 CMR 7.00: Appendix C, shall be subject to enforcement pursuant to the Massachusetts General Laws and regulations promulgated thereunder.
(g) Each operating permit issued by the Department shall include provisions in accordance with the following:
1. Each operating permit shall include all applicable requirements, including any emissions limitations and standards and any operational requirements, and shall cite to the legal authority for each requirement. Each operating permit shall also identify any difference in form between the permit condition and the applicable requirement upon which the permit condition is based.
2. The operating permit shall specify the expiration date of the permit in accordance with 310 CMR 7.00: Appendix C(3)(c).
3. The operating permit shall require emissions monitoring and analysis procedures or test methods in accordance with 310 CMR 7.00: Appendix C(9).
4. The operating permit shall require recordkeeping and reporting in accordance with 310 CMR 7.00: Appendix C(10). The operating permit shall specify the format and time frequency for reporting to the Department all monitoring data and related supporting information in accordance with 310 CMR 7.00: Appendix C(10).
5. For a permittee subject to EPA's acid rain deposition control program pursuant to Title IV, 42 U.S.C. § 7651 et seq., the operating permit shall include and be consistent with the regulations in Title IV.
6. The operating permit shall include a severability clause to ensure the continued validity of the various operating permit requirements in the event of a challenge to any portions of the operating permit.
7. The operating permit shall include the following statements:
a. The permittee shall comply with all conditions of the operating permit including the approved compliance plan. Any noncompliance with a permit condition constitutes a violation of 310 CMR 7.00: Appendix C or 42 U.S.C. 7661et seq., and is grounds for enforcement action; for permit termination, revocation and reissuance, or revision; or for denial of an operating permit renewal application.
b. A permittee in an enforcement action cannot use as a defense that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of the operating permit.
c. The operating permit may be modified, revoked, reopened, and reissued, or terminated for cause. The filing of a request by the permittee for an operating permit revision, revocation and reissuance, or termination, or of a notification of planned changes or anticipated noncompliance does not stay any operating permit condition.
d. The operating permit does not convey any property rights of any sort, or any exclusive privilege.
e. All terms and conditions in an operating permit, including any provisions designed to limit a facility's potential to emit, are enforceable by the EPA and citizens under 42 U.S.C. 7661et seq. Notwithstanding the preceding sentence, the Department shall specifically designate in the operating permit any terms and conditions that are not federally enforceable because the terms and conditions are not required under 42 U.S.C. 7661et seq. or under any of its applicable requirements.
8. The operating permit shall require the permittee to pay fees to the Department consistent with the fee schedule pursuant to 310 CMR 4.00.
9. The operating permit shall contain terms and conditions for reasonably anticipated alternative operating scenarios as approved by the Department.
10. The operating permit shall include a provision stating that no operating permit revision shall be required, under any approved economic incentives program, marketable permits program, emissions trading program and other similar programs or processes, for changes that are provided for in the operating permit.
11. If the permittee has authorization for intra-facility emissions trading, the operating permit shall state the terms and conditions for the trading of emissions increases and decreases within the permitted facility in accordance with the requirements of 310 CMR 7.00: Appendix C(7)(b) or 310 CMR 7.00: Appendix B.
12. The operating permit shall include a statement that upon presentation of credentials and other documents as may be required by law, the permittee shall allow the Department or an authorized representative to perform the following:
a. Enter upon the permittee's premises where an operating permit facility is located or emissions-related activity is conducted, or where records must be kept under the conditions of the operating permit;
b. Have access to and copy, at reasonable times, any records that must be kept under the conditions of the operating permit;
c. Inspect at reasonable times any facilities, equipment (including monitoring and air pollution control equipment), practices, or operations regulated or required under the operating permit; and
d. As authorized by 42 U.S.C. 7661et seq., sample or monitor at reasonable times substances or parameters for the purpose of assuring compliance with the operating permit or applicable requirements.
13. The operating permit shall include requirements for Compliance Certification consistent with 310 CMR 7.00: Appendix C(5)(b)(9).
14. The operating permit shall include a schedule of compliance and a schedule for the submittal of progress reports, both approved by the Department, consistent with 310 CMR 7.00: Appendix C(5)(b)(8).
15. The operating permit shall state whether a permit shield is applicable pursuant to 310 CMR 7.00: Appendix (C)(12).
16. The operating permit shall contain provisions for emergency conditions in accordance with in 310 CMR 7.00: Appendix C(16).
17. The operating permit may include other provisions as required by the Department.
(h) An operating permit does not convey any property right of any sort, or any exclusive privilege.
(i) An operating permit does not relieve any person from the obligation to comply with any other provision of 310 CMR 7.00 or to obtain any other necessary authorizations from other governmental agencies, or to comply with all other applicable Federal, State, or local rules and regulations, not addressed in their operating permit.
(j) All information submitted to the Department pursuant to the requirements of 310 CMR 7.00: Appendix C shall be public information except for that which the Department has designated confidential pursuant to the provisions of M.G.L. c. 111, § 142B and 40 CFR 70.4(b)(3) published in the Federal Register July 21, 1992, incorporated herein by reference. No permit shall in any case be designated confidential.
(k) The Department may issue a single permit authorizing emissions from similar operations by the same owner or operator at multiple temporary locations provided:
1. The operation is temporary;
2. The operation involves at least one change of location during the term of the permit;
3. The temporary source is not an affected source; and
4. The conditions of approval for operation of the temporary source assure compliance with:
a. All applicable requirements at all authorized locations;
b. All other provisions of 310 CMR 7.00: Appendix C; and
c. The requirement that the Department be notified at least ten days in advance of each change in location in writing.
(l) If an additional applicable requirement becomes applicable to the facility, or an applicable requirement which was previously applicable to the facility changes, the facility shall act to have the new applicable requirement or the change incorporated into the operating permit, in accordance with the procedures set forth in 310 CMR 7.00: Appendix C(14)(a).
(m) The Department may terminate an operating permit upon request of the responsible official of said facility.
(n) The Department hereby adopts and incorporates by reference the provisions of the acid rain program 40 CFR part 72 , as in effect on January 11, 1993 and as amended March 23, 1993, October 24, 1997, and 40 CFR Part 76 as in effect on September 1, 1998, for purposes of implementing an acid rain program that meets the requirements of 42 U.S.C. 7401, Title IV. The term permitting authority shall mean the Department and the term Administrator shall mean the Administrator of the United States Environmental Protection Agency.
(o) If the provisions or requirements of 40 CFR part 72 conflict with or are not included in 310 CMR 7.00: Appendix C, the part 72 provisions and requirements shall apply and take precedence.
(4) Application Submittal Time Lines for Operating Permits.
(a) Schedule to submit an application for an operating permit.
1. On and after April 1, 1994 a complete operating permit application shall be submitted to the Department in accordance with the following schedule:
a. For Restricted Emission Status (RES) pursuant to 310 CMR 7.02(12) and 310 CMR 7.00: Appendix C(2)(f): a Restricted Emission Status application must be submitted, reviewed, and approved no later than the published timeline for submittal of the original operating permit application, or a renewal application unless otherwise agreed to by the Department in writing.
b. For a Group A Source, any facility subject to 310 CMR 7.00: Appendix C and not submitting an application under 310 CMR 7.00: Appendix C(4)(a)1.a., with operations classified under the Standard Industrial Classification Codes (major group) 49 or 51: no later than November 15, 1994 nor before October 1, 1994;
c. For a Group B Source, any facility subject to 310 CMR 7.00: Appendix C and not submitting an application under 310 CMR 7.00: Appendix C(4)(a)1.a., with operations classified under the Standard Industrial Classification Codes (major group) 22, 23, 25, 26, 27, 28, 30, 31, 36, 38, 97 or 99: no later than September 1, 1995 nor before July 1, 1995;
d. For a Group C Source, any facility subject to 310 CMR 7.00: Appendix C and not submitting an application under 310 CMR 7.00: Appendix C(4)(a)1.a., with operations classified under the Standard Industrial Classification Codes (major group) 01, 14, 20, 24, 29, 32, 33, 34, 35, 37, 39, 45, 50, 56, 63, 65, 70, 72, 80, 82, 86, 95 or other stationary sources not classified in Groups A or B: no later than November 15, 1995 nor before September 15, 1995.
2. For a facility subject to the requirements of 310 CMR 7.00: Appendix C and in operation prior to the effective date of 310 CMR 7.00: Appendix C, an application for an operating permit pursuant to 310 CMR 7.00: Appendix C shall be submitted in accordance with the schedule detailed in 310 CMR 7.00: Appendix C(4)(a)1., or other schedule established in writing by the Department and the facility, but in no case later than one year after approval by EPA of 310 CMR 7.00: Appendix C, the operating permit program.
3. For operating permit applications submitted in accordance with 310 CMR 7.00: Appendix C(4)(a)1. or 2., the Department shall take final action on all applications no later than three years after approval by EPA of 310 CMR 7.00: Appendix C, the operating permit program.
4. Applications for initial phase II acid rain permits shall be submitted by January 1, 1996 for sulfur dioxide, and by January 1, 1998 for nitrogen oxides. Operating permit applications for these sources must be submitted in accordance with the schedule detailed in 310 CMR 7.00: Appendix C(4)(a)1..
5. For new construction subject to the requirements of 310 CMR 7.00: Appendix C, an application for an operating permit shall be submitted no later than one year after commencement of operation. Where an operating permit issued pursuant to 310 CMR 7.00: Appendix C would be modified or amended as a result of this construction, the owner or operator must follow the procedures of 310 CMR 7.00: Appendix C(8) and the time lines contained in 310 CMR 7.00: Appendix C(4)(b). (NB: New facilities are encouraged to submit applications pursuant to 310 CMR 7.00: Appendix C concurrent with 310 CMR 7.02 applications.)
6. For construction, substantial reconstruction or alteration of any facility, which results in the facility being subject to the requirements of 310 CMR 7.00: Appendix C, the application for an operating permit shall be submitted to the Department no later than one year after the commencement of operation of the portion of the facility which made the facility subject to the program. (NB: Owners and operators are encouraged to submit applications concurrent with 310 CMR 7.02 application)
7. For a facility operating under 310 CMR 7.02(9) or 310 CMR 7.02(11) status, an operating permit application shall be submitted within six months of becoming subject to 310 CMR 7.00: Appendix C.
(b) Schedule for submittal of applications to amend, modify or renew an operating permit: 1. For a significant modification to an operating permit, a timely application is one that is submitted at least nine months prior to the planned modification. For significant modifications which have been reviewed and approved under 310 CMR 7.00, the construction or modification that has been reviewed and approved may commence, but may not operate, prior to final approval of the modification to the operating permit if the existing operating permit would prohibit such construction or change in operation. If the existing operating permit would not prohibit such construction or change in operation, then operations may commence prior to final approval of the modification to the operating permit.
2. For a minor modification to an operating permit, a timely application is one that is submitted concurrent with the planned modification.
3. For an administrative amendment to an operating permit, a timely application is one that is submitted concurrent with initiation of the proposed change.
4. For a renewal of an operating permit, a timely application shall be submitted at least six months prior to the expiration of the operating permit.
(c) Except for as provided in 310 CMR 7.00: Appendix C(4)(a)3., final action by the Department shall be taken on each operating permit application within:
1. 18 months of receipt of a complete application for an operating permit for new
construction submitted after November 15, 1995
2. nine months of receipt of a complete application for a significant modification to an operating permit.
3. 90 days of receipt of a minor modification application to an operating permit or 15
days after the end of the EPA's 45 day review period under 310 CMR 7.00: Appendix C(6), whichever is later.
4. 15 days of receipt of an administrative amendment to an operating permit.
5. nine months of receipt of a complete application for renewal of an operating permit.
6. 120 days for group processing of minor modifications or 15 days after the end of
EPA's 45-day review period under 310 CMR 7.00: Appendix C(6), whichever is later.
7. nine months of receipt of a complete application for an early reduction demonstration ( 40 CFR Part 63) under 42 U.S.C. 7401, § 112(i)(5).
(d) Completeness Determination .
1. The Department shall notify the applicant within 60 days of its receipt of the application for an initial operating permit, a significant modification or renewal as to whether the application is complete.
2. To be deemed complete, an application shall include all the information required by 310 CMR 7.00: Appendix C(5) and payment of the applicable fee pursuant to 310 CMR 4.10: Appendix: Schedules for Timely Action and Application Fees. A completeness determination shall not be required for a minor permit modification or an administrative amendment.
3. If the Department fails to notify the applicant within 60 days of the Department's receipt of an application that more information is needed, then the application shall be deemed complete and the applicant shall be afforded the application shield described at 310 CMR 7.00: Appendix C(11).
4. If, after a completeness determination, the Department requires additional information, it shall request such information in writing and set a deadline for its submittal. Departmental requests for additional information made after the application is deemed complete shall not, by themselves, indicate that the application is not complete. If however, the applicant fails to submit the requested information by a reasonable deadline specified or as otherwise agreed in writing by the Department, the application shall be considered incomplete and the applicant shall not have the application shield provided for under 310 CMR 7.00: Appendix C(11).
(5) General Application Requirements .
(a) Applications for an operating permit or renewal of an operating permit pursuant to 310 CMR 7.00: Appendix C, and any additional information required by the Department shall be submitted to the Department and EPA in a format prescribed by the Department. An applicant may not omit information needed to determine whether the facility is subject to any applicable requirement.
1. For any subject facility whose emissions exceed the thresholds of 310 CMR 7.00: Appendix C(2)(a)1., the application shall include all applicable requirements for all emissions units.
2. For any facility that contains an emission unit that causes the facility to be subject to 310 CMR 7.00: Appendix C(2)(b), the application shall include all applicable requirements for the emissions units that cause the facility to be subject to 310 CMR 7.00: Appendix C.
(b) Except as provided for in 310 CMR 7.00: Appendix C(5)(a)2. and (i), the following information must be submitted for each emission unit associated with the facility. Fugitive emissions shall be included in the permit application in the same manner as stack emissions, regardless of whether the source category in question is included in the list of sources contained in the definition of major source. Applications shall contain at a minimum:
1. Identifying information, including company name and address (or plant name and address if different from the company name); owner's name and telephone number; and name(s) and telephone number(s) of facility site manager/contact.
2. A description of the facility's processes and products (by Standard Industrial Classification Code) associated with each alternate scenario proposed in the application.
3. Except for insignificant activities listed in 310 CMR 7.00: Appendix C(5) the following emissions-related information:
a. All emissions of regulated air pollutants for which the emissions unit has an applicable requirement.
b. Identification and description of all points of emissions described in 310 CMR 7.00: Appendix C(5)(b)3.a. in sufficient detail to establish said applicable
requirements.
c. Emissions rates in tons per year and in such terms as are necessary to establish compliance consistent with the applicable EPA standard reference emissions test method.
d. The following information to the extent it is needed to determine or regulate emissions: fuels, fuel use, raw materials, production rates, and operating schedules. e. Identification and description of air pollution control equipment and compliance monitoring devices or activities
f. Limitations on source operation affecting emissions or any work practice standards, where applicable, for all regulated pollutants at the source.
g. Other information required by any applicable requirement (including information related to stack height limitations developed pursuant to 42 U.S.C. 7401, The Clean Air Act, § 123).
h. Calculations on which the information in 310 CMR 7.00: Appendix C(5)(b)3.a. through g. is based.
4. For activities proposed to be exempt pursuant to 310 CMR 7.00: Appendix C(5)(h), a list describing each activity and its emissions.
5. The following air pollution control requirements:
a. Citation and description of all applicable requirements, and
b. Description of or reference to any applicable test method for determining compliance with each applicable requirement.
6. Other specific information that may be necessary to implement and enforce 310 CMR 7.00: Appendix C(5)(b)2, (7) or other applicable requirements of 42 U.S.C. 7401 or to determine the applicability of such requirements including but not limited to terms and conditions for reasonably anticipated operating scenarios including:
a. Establishing and maintaining, contemporaneously with making a change from one operating scenario to another, a record in a log at the facility as to which scenario it is operating under; and
b. Documenting that the terms and conditions of each such alternative scenario meet all applicable requirements and the requirements of 310 CMR 7.00: Appendix C. The permit shield described in 310 CMR 7.00: Appendix C(12) shall apply to all terms and conditions under each such operating scenario.
7. An explanation of any proposed exemptions from otherwise applicable requirements.
8. A Compliance Plan that contains all the following:
a. A description of the compliance status of the facility with respect to all applicable requirements.
b. A description as follows:
(i) For applicable requirements with which the facility is in compliance, a statement that the source will continue to comply with such requirements.
(ii) For applicable requirements that will become effective during the permit term, a statement that the facility will meet such requirements on a timely basis. (iii) For requirements for which the source is not in compliance at the time of permit issuance, a narrative description of how the source will achieve compliance with such requirements.
c. A compliance schedule as follows:
(i) For applicable requirements with which the source is in compliance, a statement that the source will continue to comply with such requirements.
(ii) For applicable requirements that will become effective during the permit term, a statement that the source will meet such requirements on a timely basis. A statement that the source will meet in a timely manner applicable requirements that become effective during the permit term shall satisfy this provision, unless a more detailed schedule is expressly required by the applicable requirement.
(iii) A schedule of compliance for emissions units that are not in compliance with all applicable requirements at the time of permit issuance. Such a schedule shall include a schedule of remedial measures, including an enforceable sequence of actions with milestones, leading to compliance with any applicable requirements for which the facility will be in noncompliance at the time of permit issuance. This compliance schedule shall resemble and be at least as stringent as that contained in any judicial consent decree or administrative order to which the facility is subject. Any such schedule of compliance shall be supplemental to, and shall not sanction noncompliance with, the applicable requirements on which it is based.
d. A schedule for submission of certified progress reports no less frequently than every six months for sources required to have a schedule of compliance to remedy a violation.
e. The compliance plan content requirements specified in 310 CMR 7.00: Appendix C(5)(b)8.e. shall apply and be included in the acid rain portion of a compliance plan for an affected source, except as specifically superseded by regulations promulgated under 42 U.S.C. 7401, Title IV with regard to the schedule and method(s) the source will use to achieve compliance with the acid rain emissions limitations.
9. Requirements for Compliance Certification, including the following:
a. A certification of compliance with all applicable requirements by a responsible official consistent with 310 CMR 7.00: Appendix C(5)(b)9.c. and 42 U.S.C. 7401, § 114(a)(3);
b. A statement of methods used for determining compliance, including a description of monitoring, record keeping, and reporting requirements and test methods;
c. A schedule for submission of compliance certifications during the permit term, to be submitted no less frequently than annually, or more frequently if specified by the underlying applicable requirement or by the Department;
d. A statement indicating the facility's compliance status with any applicable enhanced monitoring and compliance certification requirements of 42 U.S.C. 7401; and
e. A statement accepting the Department's authority to enter the premises of the permitted facility and perform reasonable inspections and sampling, as described in 310 CMR 7.00: Appendix C(3)(g).
10. The use of nationally-standardized forms for acid rain portions of permit application(s) and compliance plan(s), as required by regulations promulgated under 42 U.S.C. 7401, Title IV.
(c) Any application form, report, or compliance certification submitted pursuant to 310 CMR 7.00: Appendix C shall contain certification by a responsible official of truth, accuracy, and completeness in accordance with 310 CMR 7.01(2).
(d) Any application for an initial, or renewal of an operating permit submitted to the Department pursuant to 310 CMR 7.00: Appendix C shall include the following:
1. For initial operating permits, copies of any preconstruction, substantial reconstruction or alteration approvals issued by the Department under 310 CMR 7.02;
2. For renewals of operating permits, the last complete operating permit application supplemented with all new information pertinent to the provisions of 310 CMR 7.00: Appendix C(5), (6) and (7), including any operational changes made pursuant to operational flexibility section, and any other proposed operational scenarios.
(e) Any person who fails to submit any relevant facts or who has submitted incorrect information in a permit application shall, upon becoming aware of such failure or incorrect submittal, promptly submit such supplementary facts or corrected information. In addition, an applicant shall provide additional information as necessary to address any requirements that become applicable to the source after the date it filed a complete application but prior to release of a draft permit.
(f) If any person fails to submit information requested by the Department within the deadlines provided, the Department may deny the application, and an application shield pursuant to 310 CMR 7.00: Appendix C(11) shall automatically terminate pursuant to 310 CMR 7.00: Appendix C(11)(f). Prior to denying the application, the Department shall provide 30 days written notice to the applicant, including a list of the required information. A person may reapply at any time after the application is denied. The re-application shall meet all requirements of a complete initial permit application, including any application fee. (g) In the event that a discrepancy exists between the information in an application for an operating permit and the requirements of the permit, the conditions of the permit shall prevail.
(h) Exempt Activities. Except as provided in 310 CMR 7.00: Appendix C(5)(i), any facility subject to the requirements of 310 CMR 7.00: Appendix C may propose to exempt certain activities from the requirements of 310 CMR 7.00: Appendix C(5)(b). A list of proposed exemptions must be submitted as part of the application. The Department will exempt the emission unit(s) if it is of a size eligible to comply with 310 CMR 7.02(8)(i) or to be exempt from preconstruction review and approval pursuant to 310 CMR 7.02(2)(b)7., 15., or 29. and not otherwise subject to an applicable requirement.
(i) Insignificant Activities. Notwithstanding 310 CMR 7.00: Appendix C(5)(h) any emission unit that is part of the following activities is exempt from the requirements of 310 CMR 7.00: Appendix C, except that emissions from these activities shall be included in determining federal potential to emit under 310 CMR 7.00: Appendix C(2):
1. Open burning conducted in accordance with the requirements of 310 CMR 7.07(2), (3)(a) and (3)(e);
2. Office activities and the equipment and implements used therein, such as typewriters, printers, and pens;
3. Interior maintenance activities and the equipment and supplies used therein, such as janitorial cleaning products and air fresheners; this does not include any cleaning of production equipment or activities regulated by 310 CMR 7.18;
4. Bathroom and locker room ventilation and maintenance;
5. Copying and duplication activities for internal use and for support of office activities at the facility;
6. The activities not regulated by 310 CMR 7.18 in maintenance shops, such as welding, gluing, soldering;
7. First aid or emergency medical care provided at the facility, including related activities such as sterilization and medicine preparation;
8. Laundry operations that service uniforms or other clothing used at the facility that are not regulated by 310 CMR 7.18;
9. Architectural maintenance activities conducted to take care of the buildings and structures at the facility, including repainting, reroofing, and sandblasting;
10. Exterior maintenance activities conducted to take care of the grounds of the facility, including parking lots and lawn maintenance;
11. Food preparation to service facility cafeterias and dining rooms;
12. The use of portable space heaters which reasonably can be carried and relocated by an employee;
13. Liquid petroleum gas (LPG) or petroleum fuels used to power the facility's mobile equipment and not otherwise regulated by the Department;
14. Emergency vents not subject to the accidental release regulations.
15. Non-process related surface coating and painting which exclusively use non-refillable aerosol cans;
16. Vacuum cleaning systems used exclusively for commercial or residential housekeeping;
17. Ventilating systems used exclusively for heating and cooling buildings, for the comfort of people living or working within the building serviced by said system, which EPA has determined need not be contained in an operating permit;
18. Ventilating and exhaust systems for laboratories, including hoods, used:
a. by academic institutions for academic purposes.
b. by hospitals and medical care facilities used for medical care purposes and medical research only.
c. by laboratories which perform laboratory scale activities as defined by OSHA, excluding commercial laboratories that provide laboratory services for third parties. d. by facilities for quality assurance and quality control testing and sampling activities.
19. surface coating and printing processes used exclusively for educational purposes in educational institution excluding those emission units regulated by 310 CMR 7.18; and 20. kilns or ventilating hoods for art or ceramic curricula at colleges, primary or secondary schools.
(6) Permit Review by the Public, EPA and Affected States.
(a) A draft of an operating permit (draft permit) and a statement that sets forth the legal and factual basis for the draft permit conditions (including references to the applicable regulatory provisions), shall be released to the public, EPA, the applicant and affected states by the Department for applications for an operating permit, a significant modification or renewal of an operating permit; and to EPA and affected states for minor permit modifications.
(b) For each draft initial operating permit, significant modification or renewal of an operating permit pursuant to 310 CMR 7.00: Appendix C(2), the Department shall:
1. Post on a public website identified by the Department (which may be the Department's own website), for the duration of the public comment period, the following:
a. A notice of availability of the Department's draft initial operating permit, significant modification or renewal of an operating permit and information on how to submit public comment;
b. The Department's draft initial operating permit, significant modification or renewal of an operating permit; and
c. Information on how to access the administrative record for the Department's draft initial operating permit, significant modification or renewal of an operating permit.
2. Give notice to persons on a mailing list developed by the Department using generally accepted methods (e.g., hyperlink sign-up function or radio button on a Department website, sign-up sheet at a public hearing, etc.) that enable interested parties to subscribe to a mailing list. The Department may update the mailing list from time-to-time by requesting written indication of continued interest from those listed. The Department may delete from the list the name of any person who fails to respond to such a request within a reasonable timeframe.
(c) The notice shall identify:
1. The name and address of the facility;
2. The name and address of the permittee;
3. The name and address of the Department's regional office processing the permit;
4. The activity or activities included in the permit action;
5. The emissions change associated with any permit modification;
6. The name, address, and telephone number of a person (or an email or website address) from whom interested persons may obtain additional information, including copies of the draft permit, the application, all relevant supporting materials, and all other materials available that are relevant to the permit decision; and
7. A brief description of the comment procedures required by 310 CMR 7.00: Appendix C(6); 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).
(d) The Department, on or before the publication of the public notice of a draft permit, shall also give notice of its intent to issue a draft permit to the head of the environmental program of any affected state.
(e) The Department shall provide a comment period of no less than 30 calendar days and no more than 60 calendar days on draft permits for an initial permit, significant modifications and renewals of operating permits.
(f) The Department based upon material issues or at its own initiative may hold a public hearing on a draft permit. For an initial operating permit issuance, renewal or significant modification to an operating permit, any person may request before the expiration of the public comment period specified pursuant to 310 CMR 7.00: Appendix C(6)(a), that the Department hold a public hearing (if the Department has not already scheduled a public hearing) on a draft permit, by submitting a written request stating the nature of the issues to be raised at a public hearing. Notice of any public hearing shall be given at least 30 days in advance of the hearing and may be included in the notice issued pursuant to 310 CMR 7.00: Appendix C(6)(a) and by the procedures of 310 CMR 7.00: Appendix C(6)(b) and (c). (g) Whenever the Department determines to hold a public hearing, the duration of the public comment period shall automatically extend to the close of the public hearing. The hearing officer may further extend the comment period by announcing the extension and its duration at the public hearing.
(h) At a public hearing, the Department may:
1. Establish reasonable limits upon the time allowed for oral statements; and
2. Require the submission of statements in writing.
(i) The Department shall keep records of the comments and also of the issues raised during the public participation process so that EPA may fulfill its obligation under 42 U.S.C. 7401, § 505(b)(2) to determine whether a citizen petition should be granted, and such records shall be available to the public.
(j) After the close of the public comment period, the Department will forward to the EPA a proposed operating permit (proposed permit), together with other required supporting information pertaining to the proposed permit. NOTE: The Department as part of the submittal of the proposed permit to the EPA shall notify the EPA and any affected state in writing of any refusal by the Department to accept any recommendations on the draft permit that the affected state submitted during the draft permit review period. The notice shall include the Department's reason for not accepting any such recommendation; the Department is not required to accept recommendations that are not based on an applicable requirement or the requirements of 310 CMR 7.00: Appendix C.
(k) If EPA submits an objection to the proposed permit in writing, during the 45 day period following EPA's receipt of the proposed permit, the Department shall revise, and resubmit a proposed operating permit to the EPA. EPA shall send a copy of its objection to the applicant. The Department will not issue a final permit prior to the expiration of the 45-day period for EPA objection unless EPA notifies DEP of its intention not to object.
(l) If the Department fails, within 90 days after the receipt of an objection under 310 CMR 7.00: Appendix C(6)(k), to revise and submit a proposed permit in response to the objection, the EPA may issue or deny the permit in accordance with the requirements of the Federal Program promulgated under 42 U.S.C. 7401, Title V.
(m) If EPA does not object to the proposed permit, any person may petition the EPA during the 60 days after the expiration of the EPA's 45 day review period, and may request that EPA object.
1. The petition shall be based only on objections that were raised with reasonable specificity during the public comment period, unless the petitioner demonstrates that it was impracticable to raise such objections within such period, or unless the grounds for such objection arose after such period.
2. If the EPA is convinced that such objection meets the criteria established in 310 CMR 7.00: Appendix C(6)(m)1., and objects, the Department shall not issue the operating permit until the EPA's objection is resolved.
3. If the Department has issued an operating permit prior to receipt of an EPA objection, the EPA may modify, terminate, or revoke the permit. The Department may thereafter issue only a revised permit that satisfies EPA's objection. In any case, the stationary source will not be in violation of the requirement to have submitted a timely and complete application.
(n) The Department shall transmit final operating permits to EPA.
(7) Operational Flexibility.
(a) Section 502(b)(10) Changes
1. Any facility issued an operating permit may make Section 502(b)(10) changes through the procedures set forth in 310 CMR 7.00: Appendix C(7).
2. The Department shall attach the notice of the change to the operating permit, but shall not revise the operating permit until the next application for renewal.
3. If the requirements of 310 CMR 7.00: Appendix C(7) are met, the change may be made 15 days after receipt of the notice of the change by the Department or EPA whichever is later.
4. No change may be made pursuant to 310 CMR 7.00: Appendix C(7) if the change would:
a. violate an applicable requirement(s);
b. contravene a federally enforceable permit term(s) and condition(s) that is monitoring (including test methods), recordkeeping, reporting, or compliance certification;
c. is a modification under 42 U.S.C. 7401, Title I; or
d. is in excess of the emissions allowed under the operating permit (whether expressed therein as a rate of emissions or in terms of total emissions).
5. A responsible official must provide the Department and EPA with written notification at least 15 days in advance of the proposed changes. For each such change, the written notification required above shall include:
a. A brief description of the change within the permitted facility;
b. The date on which the change will occur;
c. Any change in emissions; and
d. Any permit term or condition that is no longer applicable as a result of the change.
6. The permit shield provided for under 310 CMR 7.00: Appendix C(12) shall not apply to changes made under 310 CMR 7.00: Appendix C(7).
(b) Intra-facility Emissions Trading .
1. Pursuant to a request from a responsible official in an operating permit application, the Department shall issue an operating permit that contains terms and conditions that allow for the trading of emissions increases and decreases within the permitted facility. The Department shall not include in these trading provisions any emissions units for which emissions are not quantifiable or for which there are no replicable procedures to enforce the emissions trades.
2. Any requests made under 310 CMR 7.00: Appendix C(7) are solely for the purposes of complying with the federally-enforceable emissions cap that is established in the permit independent of otherwise applicable requirement(s).
3. Emission trades may be implemented provided the Department and EPA are notified at least 15 business days in advance of the proposed changes. For each change, the following must be provided:
a. A description of the change within the permitted facility;
b. The date on which the change will occur;
c. Any change in emissions; and
d. How these increases and decreases in emissions will comply with the terms and conditions of the permit.
4. The 15 day notice shall commence upon the receipt by the Department or EPA whichever is later.
5. The permit shield provided for under 310 CMR 7.00: Appendix C(12) shall apply to the permit terms and conditions that allow such increases and decreases in emissions.
6. Any intra-facility change that does not qualify pursuant to 310 CMR 7.00: Appendix C(7)(b)2. is required to be submitted to the Department pursuant to 310 CMR 7.00: Appendix B.
(8) Administrative Amendments, Minor Modifications and Significant Modifications.
(a) The following changes shall require a revision to an operating permit:
1. An Administrative Amendment, if the proposed change is:
a. A change in business name, division name, or facility name; mailing address; company stack designation; telephone number; or name of facility contact; or
b. A transfer of ownership of the facility for which an operating permit is in effect, where the Department determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittee has been submitted to the Department; or
c. A change to monitoring, reporting, recordkeeping, or testing requirements that is more frequent than previously specified in the operating permit; or
d. The Department, EPA or permittee determines that the operating permit contains typographical errors.
2. A Minor Modification, if the proposed change:
a. Does not violate any applicable requirements;
b. Does not involve a significant change to existing monitoring, reporting, or recordkeeping requirements in the permit;
c. Does not require or change a case-by-case determination of an emission limitation or other standard, or a source-specific determination for temporary sources of ambient impacts, or a visibility or increment analysis;
d. Does not seek to establish or change a permit term or condition for which there is no corresponding underlying applicable requirement and that the facility has assumed to avoid an applicable requirement to which the facility would otherwise be subject; and
e. Is not a modification under any provision of 42 U.S.C. 7401, Title I.
3. A Significant Modification is a permit modification that does not qualify as a minor permit modification or as an administrative amendment, or is a significant change to any monitoring, reporting or recordkeeping requirements as required by any operating permit. (b) Processing an Administrative Amendment. For an administrative amendment to an operating permit a timely and complete application is one filed on forms specified by the Department and in accordance with the timelines established at 310 CMR 7.00: Appendix C(4).
1. The Department shall take final action within 15 days of receipt of said application and may incorporate such changes without providing notice to the public or affected states. The Department shall submit a copy of the revised permit to EPA.
2. The source may make the change upon receipt by the Department of the proposed administrative amendment.
3. An administrative amendment for purposes of the acid rain portion of the operating permit shall be governed by 40 CFR part 72.
4. The permit shield provisions of 310 CMR 7.00: Appendix C(12) shall not apply to changes made under 310 CMR 7.00: Appendix C(8).
(c) Processing a Significant Modification. For a significant modification to an operating permit an application must be filed on forms specified by the Department and in accordance with the timelines established at 310 CMR 7.00: Appendix C(4), and shall:
1. Be subject to all of the same requirements as a new operating permit application including review by EPA, affected states and the public under 310 CMR 7.00: Appendix C;
2. Focus on the proposed significant modifications to the issued operating permit only;
3. A significant modification for purposes of the acid rain portion of the operating permit shall be governed by 40 CFR part 72; and
4. For significant modifications which have been reviewed and approved under 310 CMR 7.02(4) or (5), the construction, substantial reconstruction, or alteration may commence, but may not be operated if the existing operating permit would prohibit such construction or change in operation, during the period after receipt of the required significant modification application by the Department, but before the Department revises the operating permit. If the existing operating permit would not prohibit such construction or change in operation, then operations may commence prior to final approval of the modification to the operating permit. The permit shield provided under 310 CMR 7.00: Appendix C(12) applies to any changes resulting from such significant modification.
(d) Processing a Minor Modification. For a minor modification to an operating permit an application must be filed on forms specified by the Department and in accordance with the timelines established at 310 CMR 7.00: Appendix C(4).
1. An application requesting the use of minor permit modifications procedures shall include the following:
a. A description of the change, the emissions resulting from the change, and any new applicable requirements that will apply if the change occurs;
b. The facility's suggested draft permit;
c. Certification by a responsible official that the proposed modification meets the criteria for use of minor permit modification procedures and a request that such procedures be used; and
d. Completed forms for the Department to use to notify the EPA and affected states. Said notification shall be made within five business days of receipt by the Department of a complete permit modification application.
2. A minor modification for purposes of the acid rain portion of the operating permit shall be governed by 40 CFR part 72.
3. The source may make the change upon receipt by the Department of the proposed modification.
4. The permit shield provisions of 310 CMR 7.00: Appendix C(12) shall not apply to changes made under 310 CMR 7.00: Appendix C(8).
(e) Revisions to Operating Permit Not Required. A revision to an operating permit is not required for increases in emissions that are authorized by allowances acquired pursuant to the Acid Rain program under Title IV, provided that such increases do not require an operating permit revision under any other applicable requirement.
(9) Testing and Monitoring Requirements.
(a) Any facility, for which an operating permit specifies testing and monitoring requirements shall do so in a manner and time as specified in the operating permit.
(b) Each operating permit shall contain the following monitoring requirements:
1. The permittee shall comply with all emissions monitoring and analysis procedures or test methods required under the applicable requirements, including those promulgated pursuant to 42 U.S.C. 7401, The Clean Air Act, §§ 504(a) and 504(b) or 114(a)(3);
2. If the applicable requirement does not require periodic testing or instrumental or noninstrumental monitoring (which may consist of recordkeeping designed to serve as monitoring), then the permittee shall perform periodic monitoring sufficient to yield reliable data from the relevant time period that is representative of the source's compliance with the permit. Such monitoring requirements shall assure use of terms, test methods, units, averaging periods, and other statistical conventions consistent with the applicable requirement. Recordkeeping provisions may be sufficient to meet the requirements; and
3. The permittee shall comply with requirements concerning the use, maintenance and installation of monitoring equipment or methods as the Department deems appropriate.
(c) Any facility required to install a continuous emissions monitor (CEM) shall install, calibrate, operate, certify and maintain the CEM to continuously measure and continuously record the required emissions and other data as specified in the operating permit.
(d) Any person required to perform monitoring shall maintain records of and report to the Department in accordance with the requirements established in the facility operating permit and 310 CMR 7.00: Appendix C(10).
(10) Recordkeeping and Reporting Requirements.
(a) Upon the Department's request, any record relevant to the operating permit or to the emissions of any air contaminant from the facility shall be submitted to the Department within 30 days of the request by the Department or within a longer time period, if approved in writing by the Department, and shall be transmitted on paper, on computer disk, or electronically at the discretion of the Department.
(b) The permittee shall maintain records of all monitoring data and supporting information on-site for a period of at least five years from the date of the monitoring sample, measurement, report or initial operating permit application. Supporting information includes, at a minimum, all calibration and maintenance records and all original strip-chart recordings for continuous monitoring instrumentation, and copies of all reports required by the operating permit, and any other information required to interpret the monitoring data. Records required to be maintained shall include, where applicable:
1. The date, place as defined in the permit, and time of sampling or measurements;
2. The date(s) analyses were performed;
3. The company or entity that performed the analyses;
4. The analytical techniques or methods used;
5. The results of such analyses; and
6. The operating conditions as existing at the time of sampling or measurement.
(c) The permittee shall report a summary of all monitoring data and related supporting information to the Department at least every six months in a format and time frequency specified by the Department.
(d) Upon request, an owner or operator shall also furnish to the Department copies of records required to be kept by the operating permit or, for information claimed to be confidential, said person may furnish such records directly to the Department and EPA, along with a claim of confidentiality.
(e) The following shall be made readily available for inspection by the Department:
1. The operating permit together with any amendments thereto;
2. A diagram of the facility indicating the location of all equipment and control apparatus, any stack designation assigned by the Department, and any stack designation assigned by the facility;
3. Records documenting any and all use of any equipment, control apparatus, or other source operation including, but not limited to, the kind and amount of air contaminant emitted, rate of production and hours of operation, raw material throughput; and
4. Records documenting any construction, substantial reconstruction or alteration, including the dates thereof, of any equipment or control apparatus.
(f) The permittee shall promptly report to the Department all instances of deviations from permit requirements. This report shall include the deviation itself, including those attributable to upset conditions as defined in the permit, the probable cause of the deviation, and any corrective actions or preventive measures taken.
(g) For facilities permitted to operate under alternative operating scenarios, the permittee shall establish and maintain a log at the facility which indicates the scenario under which the facility is operating. The permittee shall record changes from one scenario to another contemporaneously with the change.
(h) All required reports must be certified by a responsible official consistent with 310 CMR 7.00: Appendix C(5)(c).
(11) Application Shield.
(a) An application shield provides that an owner or operator of a facility subject to 310 CMR 7.00: Appendix C shall not be subject to penalties for operating without an operating permit during the time the application shield is in effect.
(b) An application shield is in effect for an owner or operator of a facility subject to 310 CMR 7.00: Appendix C if:
1. A timely and complete application for an initial application or renewal of an operating permit has been submitted pursuant to 310 CMR 7.00: Appendix C(3)(a) (facility may continue to operate until the Department takes final action on the application); and
2. The applicant submits any information requested in writing by the Department within the timelines established.
(c) This application shield does not relieve an owner or operator of a facility subject to 310 CMR 7.00: Appendix C from complying with the terms and conditions of any operating permit or applicable requirement. For initial permit issuance, the application shield does not relieve an owner or operator of said facility from complying with any applicable state and federal laws and regulations.
(d) The submittal of a complete application shall not affect the requirement that any source have a preconstruction approval under 310 CMR 7.02 if applicable.
(e) In the event that the Department has not taken final action on an operating permit renewal application prior to an existing operating permit's expiration date, the permit shall remain in effect until the Department takes final action on the renewal application, provided that a timely and complete renewal application has been submitted in accordance with 310 CMR 7.00: Appendix C(13).
(f) An application shield terminates automatically upon either of the following:
1. The Department's final action on the application for the initial operating permit or for the renewal; or
2. Failure of the applicant to submit additional information requested by the Department in writing within the deadline established by the Department pursuant to 310 CMR 7.00: Appendix C(5)(f).
(g) An application shield terminated pursuant to 310 CMR 7.00: Appendix C(5)(f) will be reinstated upon receipt of a submittal meeting all the requirements of a complete initial permit application, including any application fee.
(12) Permit Shield.
(a) An owner or operator of a facility subject to 310 CMR 7.00: Appendix C will not be subject to enforcement action for operating not in compliance with all applicable requirements provided said facility is in compliance with its permit terms and the Department expressly included in the facility's operating permit 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 issuance, provided that:
1. Such applicable requirements are included and are specifically identified in the permit; or
2. The Department, in acting on the permit application or revision, determines in writing that other requirements specifically identified are not applicable and the permit includes the determination or a concise summary thereof.
(b) Nothing in 310 CMR 7.00: Appendix C(12)(a) or in any operating permit shall alter or affect the following:
1. The provisions of 42 U.S.C. 7401, § 303 (Emergency Orders), including the authority of the EPA under 42 U.S.C. 7401, § 303;
2. The liability of an owner or operator of a facility subject to 310 CMR 7.00: Appendix C for any violation of applicable requirements prior to or at the time of permit issuance; 3. The applicable requirements of the acid rain program, consistent with 42 U.S.C. 7401, § 408(a); or
4. The ability of EPA to obtain information from a source pursuant to 42 U.S.C. 7401, § 114.
(c) In the event that the Department has not taken final action on an operating permit renewal application prior to an existing operating permit's expiration date, the permit shall remain in effect until the Department takes final action on the renewal application, provided that a timely and complete renewal application has been submitted in accordance with 310 CMR 7.00: Appendix C(13).
(13) Renewals.
(a) The expiration of an operating permit terminates the right of the owners or operators of a facility subject to 310 CMR 7.00: Appendix C to operate any emission unit, control equipment or associated equipment covered by the permit unless a timely and complete renewal application is submitted pursuant to 310 CMR 7.00: Appendix C(4)(b)4.
(b) Applications for renewal of operating permits are subject to the same requirements for public participation and EPA and affected state(s) oversight that apply to initial permit applications (310 CMR 7.00: Appendix C(6)).
(c) An application for renewal of an operating permit shall include the results of such testing as is necessary, at the discretion of the Department, to verify that emissions from the equipment or control apparatus meet the compliance emission limitations established in an approval issued pursuant to 310 CMR 7.00 or an operating permit issued under 310 CMR 7.00: Appendix C. If such testing is required, the applicant shall comply with the procedures outlined in 310 CMR 7.00: Appendix C(9) testing and monitoring.
(d) Any owner or operator of a facility subject to 310 CMR 7.00: Appendix C filing a timely and complete application for renewal of an operating permit shall be provided with an Application shield as prescribed in 310 CMR 7.00: Appendix C(11).
(14) Reopenings for Cause.
(a) The Department shall reopen and amend a permit when:
1. Additional federal requirements (including, but not limited to, standards or requirements pursuant to 42 U.S.C. 7401, §§ 112(d), 112(g), 112(h) and 112(j)) become applicable to a facility with a remaining permit term of three or more years. Such a reopening and amendment shall be completed not later than 18 months after promulgation of the applicable federal requirement. No such reopening is required if the effective date of the requirement is later than the date on which the permit is due to expire unless the original permit or any of its terms and conditions has been extended pursuant to 310 CMR 7.00: Appendix C(11)(e).
2. Additional requirements (including excess emission requirements) become applicable to an affected source under the acid rain program. Upon approval by the EPA, excess emissions offset plans shall be deemed to be incorporated into the permit.
3. The Department or EPA determines that the permit contains a material mistake or that inaccurate statements were made in establishing the emissions standards, limitations, or other terms or conditions of the permit.
4. The Department or EPA determines that the permit must be revised to assure compliance with the applicable requirements.
(b) Proceedings to reopen and issue a permit shall follow the same procedures as apply to initial permit issuance and shall affect only those parts of the operating permit for which cause to reopen exists. Such reopenings shall be made as expeditiously as practicable.
(c) Reopening under 310 CMR 7.00: Appendix C(14)(a) shall not be initiated before a notice of such intent is provided to the facility by the Department at least 30 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.
(15) General Operating Permits .
(a) The Department may, after notice and opportunity for public comment provided at 310 CMR 7.00: Appendix C(6), issue a general operating permit applicable to numerous similar operations or facilities. Each general operating permit shall specify criteria by which facilities may qualify for the general operating permits. General operating permits shall contain as applicable, the requirements of 310 CMR 7.00: Appendix C(3)(g).
(b) Facilities subject to the requirements of 310 CMR 7.00: Appendix C(2) (Applicability) may seek a general operating permit previously issued by the Department, where appropriate, by applying to the Department under the requirements of 310 CMR 7.00: Appendix C(5). An application shield shall apply (310 CMR 7.00: Appendix C(11)).
(c) Affected units subject to the acid rain requirements of 42 U.S.C. 7401, Title IV are not eligible for general operating permits unless otherwise provided for under regulations promulgated by EPA under 42 U.S.C. 7401, Title IV.
(d) The approval of a facility's request for authorization to operate under a general operating permit shall not be a final permit action for the purpose of judicial review.
(e) Any permittee in possession of a general operating permit who proposes a modification to the equipment or control device which deviates from any term or condition of the general operating permit, shall apply for an individual operating permit consistent with the rules and procedures under 310 CMR 7.00: Appendix C.
(f) Notwithstanding the shield provisions of 310 CMR 7.00: Appendix C(12) the owner or operator of the facility shall be subject to enforcement action for operation without an operating permit if the facility is later determined not to qualify for the conditions and terms of the general permit.
(g) If a facility can no longer be covered under the general permit terms and conditions, the owner or operator of said facility must apply for an individual operating permit.
(16) Emergency Conditions.
(a) The owner or operator of a facility subject to 310 CMR 7.00: Appendix C shall be shielded from enforcement action brought for non-compliance with technology-based emission limits specified in the operating permit as a result of an emergency. An emergency constitutes an affirmative defense to an action brought for noncompliance with such technology-based emission limitations if the conditions of 310 CMR 7.00: Appendix C(16) are met. The affirmative defense of emergency shall be demonstrated through properly signed, contemporaneous operating logs, or other relevant evidence that:
1. An emergency occurred and that the cause(s) of the emergency can be identified;
2. The facility was at the time being properly operated;
3. During the period of the emergency all reasonable steps were taken as expeditiously as possible to minimize levels of emissions that exceeded the emission standards, or other requirements in the operating permit; and
4. Notice of the emergency was submitted to the Department within two business days of the time when emission limitations were exceeded due to the emergency. This notice fulfills the requirement of 310 CMR 7.00: Appendix C(10). This notice must contain a description of the emergency, any steps taken to mitigate emissions, and corrective actions taken.
(b) In any enforcement proceeding, the permittee seeking to establish the occurrence of an emergency has the burden of proof.
(c) This provision is in addition to any emergency or upset provision contained in any applicable requirement.
310 CMR, 7, C