5 Colo. Code Regs. § 1001-5-C-V

Current through Register Vol. 48, No. 1, January 10, 2025

Section 5 CCR 1001-5-C-V - Operating Permit Issuance, Renewals and Modifications

V.A. Except as provided, the Division shall not issue, reissue or renew an operating permit until the source has obtained a final approval construction permit for all emission units pursuant to Regulation Number 3, Part B, Section III.G. However, nothing in this section shall preclude the Division from issuing, reissuing, or renewing an operating permit if the holder of an initial approval construction permit has not commenced operation of the new construction or modification authorized by that construction permit. When the source has not demonstrated compliance with the terms of an initial approval construction permit as required pursuant to Regulation Number 3, Part B, Section III.G., or has not obtained a final approval construction permit as required, the Division may issue, reissue or renew an operating permit under the following circumstances:

V.A.1. If the source has not demonstrated compliance under the provisions of Regulation Number 3, Part B, Section III.G., and the source is not anticipated to be in compliance at the time of the operating permit issuance with any of the terms or conditions of the initial approval construction permit, the operating permit must contain a compliance plan and compliance schedule that meets the requirements of this Part C, Sections III.C.8., III.C.9., and III.C.10., with respect to those permit term(s). In that instance, the deviation reporting required under this Part C, Section V.C.7.b. may, at the Division's discretion, serve as the demonstration required pursuant to Regulation Number 3, Part B, Section III.G. and no final approval construction permit will be issued; or

V.A.2. If the source has not demonstrated compliance under the provisions of Regulation Number 3, Part B, Section III.G., and the source anticipates being in compliance at the time of the operating permit issuance with all of the terms or conditions of the initial approval construction permit, the Division can elect to allow the initial approval construction permit to continue in full force and effect pursuant Regulation Number 3, Part B, Section III.G.4. In that instance, the first deviation report after permit issuance as required under this Part C, Section V.C.7.b. may, at the Division's discretion, serve as the demonstration required pursuant to Regulation Number 3, Part B, Section III.G., and no final approval construction permit will be issued; or

V.A.3. If the source has demonstrated compliance under the provisions of Regulation Number 3, Part B, Section III.G. but not yet received a final approval construction permit, the Division may, at its discretion, elect to either issue a final approval construction permit or allow the initial approval construction permit to continue in full force and effect. The Division shall provide written notice to the permittee of its election.

V.B. An operating permit, permit modification or permit renewal shall be issued only upon a determination by the Division that the following criteria have been met:

V.B.1. The Division has received a complete application for a permit, permit modification, or permit renewal;

V.B.2. Public comment and hearing requirements, except for modifications qualifying for minor permit modification procedures or administrative permit revisions;

V.B.3. Requirements for notifying and responding to affected states pursuant to Section IX. of this Part C. This section is not applicable to minor sources that voluntarily apply for an operating permit for purposes of Sections X., XI., and XII., unless the source is required to have federally enforceable emissions limitations to be considered a minor source, nor to major sources of Colorado-only Hazardous Air Pollutants subject to the operating permit requirements solely due to state-only conditions under the state Act;

V.B.4. Permit conditions provide for compliance with all applicable requirements and the requirements of this Regulation Number 3; and

V.B.5. The Administrator has received a copy of the proposed permit and has not objected to its issuance within forty-five days of receipt of the proposed permit and all necessary supporting information. This section is not applicable to minor sources that voluntarily apply for an operating permit for purposes of Sections X., XI., and XII., unless the source is required to have federally enforceable emissions limitations to be considered a minor source, nor to major sources of Colorado-only Hazardous Air Pollutants subject to the operating permit requirements solely due to state only conditions under the state Act.

V.B.6. The Administrator's objection to permit issuance shall be based on a determination that the proposed permit will not be in compliance with applicable requirements or requirements of Code of Federal Regulations Title 40, Part 70. Any such objection shall include a statement of the Administrator's reasons for objecting and a description of the terms and conditions that the permit must include to respond to the objection. Failure of the Division to do any of the following shall also constitute grounds for an objection by the Administrator:

V.B.6.a. Failure to comply with the provisions of Section V.F. of this Part C for submission of copies of permit applications, proposed permits, and final permits to the Administrator;

V.B.6.b. Failure to comply with the provisions of Section IX. of this Part C for review by affected states;

V.B.6.c. Failure to submit any information to the Administrator necessary to review adequately the proposed permit; or

V.B.6.d. Failure to comply with the provisions of Section VI. of this Part C for public participation.

V.B.7. If the Division fails, within ninety days after an objection by the Administrator, to revise and submit a proposed permit in response to the objection, the Administrator will issue or deny the permit in accordance with the requirements of the federal program promulgated under Title V of the Federal Act.

V.B.8. The permit applicant has paid all applicable hourly fees as set forth in Part A, Section VI. of this Regulation Number 3.

V.C. An operating permit shall contain, at a minimum, the following:

V.C.1. Emissions limitations and standards, including those operational requirements and limitations that assure compliance with all applicable requirements at the time of permit issuance, including:

V.C.1.a. The permit shall specify and reference the origin of and authority for each term and condition, and identify any difference in form as compared to the applicable requirement upon which the term or condition is based; and

V.C.1.b. The permit shall state that, where an applicable requirement of the Federal Act is more stringent than an applicable requirement of regulations promulgated under Title IV of the Federal Act, Code of Federal Regulations Title 40, Part 72, both provisions shall be incorporated into the permit and shall be federally enforceable; and

V.C.1.c. If allowed by the state implementation plan, an alternative emissions limitation that is at least as stringent as an applicable requirement may be substituted for an applicable requirement as a permit term or condition, so long as the permit containing such equivalency determination contains provisions to ensure that any resulting emissions limitation is quantifiable, accountable, enforceable and based on replicable procedures.

V.C.2. The permit term shall be five years.

V.C.3. The effective date and termination date of the permit shall be specifically identified in the permit.

V.C.4. A statement of all monitoring and related record keeping and reporting requirements shall be specifically identified in the permit.

V.C.5. Each permit shall contain the following requirements with respect to monitoring:

V.C.5.a. All emissions monitoring and analysis procedures or test methods required under the applicable requirements, including any required procedures and methods for compliance assurance monitoring and compliance certification requirements;

V.C.5.b. Where the applicable requirement does not require periodic testing or instrumental or non-instrumental monitoring, periodic monitoring, or record keeping, sufficient to yield reliable data for the relevant time period that are representative of the source's compliance with the permit as required to be reported pursuant to Section V.C.16.e. of this Part C. Such monitoring requirements shall assure use of terms, test methods, units, averaging periods, and other statistical conventions consistent with the applicable requirements.

V.C.5.c. As necessary, requirements concerning the use, maintenance and, where appropriate, installation of monitoring equipment or methods.

V.C.5.d. (State Only) For each operating permit renewal application submitted on or after July 15, 2024, the Division will include requirements, as appropriate, for monitoring for existing sources of Affected Pollutants located in Disproportionately Impacted Communities. Compliance with the provisions of this Section V.C.5.d. does not relieve a source of compliance with monitoring requirements pursuant to other state or federal law.

V.C.5.d.(i) For sources located in Cumulatively Impacted Communities for which there were permit modification applications submitted or permits issued since the last operating permit renewal application that increased the Facility's requested permitted emissions or permitted emissions of nitrogen oxides, and/or direct PM2.5 or estimated annual actual emissions of benzene, toluene, ethylbenzene, and/or xylene in excess of the Affected Construction Source thresholds defined in Part A, Section I.B.4, the Division will require the source to design and, within three months of permit issuance, or other timeline approved by the Division, implement a Division-approved source-specific monitoring plan as outlined in Section III.J.2.b. of Part B of this Regulation Number 3 for the Affected Pollutant(s) that exceeded the applicable thresholds set forth in Section I.B.4 of Part A of this Regulation Number 3. Sources that last submitted an operating permit renewal before July 15, 2023, only need to look back at permit applications submitted and permits issued on or after July 15, 2023 that increased the Facility's requested permitted emissions or permitted emissions. Sources already operating Division-approved source-specific monitoring for the Affected Pollutant(s) are not required to conduct additional monitoring under this V.C.5.d.(i). Source-specific monitoring will not be required for total volatile organic compounds.

V.C.5.d.(ii) For sources subject to the monitoring requirements outlined in Section V.C.5.d.(i) of this Part C, data collected through monitoring efforts must be provided by the source to the Division via Application Program Interface (API) or in accordance with Division-approved frequency and methods.

V.C.5.d.(iii) Any source subject to Section V.C.5.d.(i) of this Part C that demonstrates through dispersion modeling that the source's maximum annual average modeled concentration for the modeled Affected Pollutant is below Cumulatively Impacted Community Monitoring Thresholds defined in Table 1 of Part B of this Regulation Number 3, may be relieved of the requirements of Section V.C.5.d.(i) for that Affected Pollutant.

V.C.5.d.(iv) Sources located in Socioeconomically Vulnerable Communities and sources located in Cumulatively Impacted Communities not subject to source-specific monitoring pursuant to Section V.C.5.d.(i) of this Part C or who have demonstrated through dispersion modeling in accordance with Section V.C.5.d.(ii) of this Part C that the maximum annual average modeled concentration is below Cumulatively Impacted Community Monitoring Thresholds defined in Table 1 of Part B of this Regulation Number 3, must participate in community monitoring pursuant to Section III.J.3 of Part B of this Regulation Number 3.

V.C.5.d.(v) Sources subject to source-specific monitoring pursuant to Section V.C.5.d.(i) may petition to discontinue well production facility monitoring after two years of monitoring. The petition must include monitoring data which demonstrates that concentrations are below Cumulatively Impacted Community Monitoring Thresholds outlined in Table 1. The Division may approve the petition to discontinue monitoring requirements if it finds that sufficient information has been collected to assess a source's impact on the Cumulatively Impacted Community in which the source is located. In determining approval of the petition to discontinue monitoring the Division may consider the source's compliance history, monitored concentration levels, burdens experienced by communities, density of monitoring occurring in the community, and planned startup, shutdown, and malfunction events with high level of emissions.

V.C.6. Each permit shall incorporate all applicable record keeping requirements and require, where applicable, the following:

V.C.6.a. Records of required monitoring information, which includes the following:

V.C.6.a.(i) Date, place, as defined in the permit, and time of sampling or measurements;

V.C.6.a.(ii) Date(s) on which analyses were performed;

V.C.6.a.(iii) The company or entity that performed the analysis;

V.C.6.a.(iv) The analytical techniques or methods used;

V.C.6.a.(v) The results of such analysis; and

V.C.6.a.(vi) The operating conditions as existing at the time of sampling or measurement.

V.C.6.b. The retention of records of all required monitoring data and support information for a period of at least five years from the date of the monitoring sample, measurement, report or application. Support information, for this purpose, includes all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, and copies of all reports required by the permit. The applicant may, with the Division's approval, maintain any of the records in a computerized form. Sources must retain records of all required monitoring data and support information for the most recent twelve-month period, as well as compliance certifications for the past five years on site at all times. A source shall make available for Division review all other records of required monitoring data and support information required to be retained by a source upon forty-eight hours' advance notice by the Division.

V.C.6.c. A permittee may request confidential treatment for information in any report submitted under this section pursuant to the limitations and procedures set forth in Section VII. of Part A of this Regulation Number 3.

V.C.7. Each permit shall incorporate all applicable reporting requirements, and shall require the following:

V.C.7.a. Submittal of all reports of any required monitoring at least every six months except as otherwise required on a more frequent basis pursuant to compliance assurance monitoring rules or other applicable requirements. The Division may approve alternative reporting formats and schedules proposed by an applicant consistent with the requirements of this section, allowing for coordination with other reporting requirements for that source. All instances of deviations from any permit requirements must be clearly identified in such reports. All required reports must be certified by a responsible official consistent with Section III.B.8. of this Part C;

V.C.7.b. Prompt reporting of deviations from permit requirements, including those attributable to upset conditions as defined in the permit, the probable cause of such deviations, and any corrective actions or preventive measures taken. Each permit shall contain a definition of prompt reporting in relation to the degree and type of deviation likely to occur and the applicable requirements. Generally, "prompt" reporting shall entail reporting as required in Section V.C.7.a., requiring submission of reports of deviations from permit requirements at least every six months, except as otherwise specified by the Division in the permit. Prompt reporting, for this purpose, does not constitute an exception to the requirements of Section VII. relating to reporting of emergency events for the purpose of avoiding enforcement actions.

V.C.8. A permit condition prohibiting emissions exceeding any allowances that the source lawfully holds under Title IV of the Federal Act or the regulations promulgated there under at Code of Federal Regulations Title 40, Part 72.

V.C.9. State only permit terms and conditions shall be listed separately on the operating permit. All procedural requirements of this Part C may apply to such state only conditions, except as otherwise required by the state Act, in order for sources to obtain the permit shield and all operational flexibility provisions. The permit shall also contain a specific designation as not being federally enforceable any state only terms and conditions included in the permit that are not required under the Federal Act or under any of its applicable requirements. A source may choose to obtain a separate construction permit pursuant to Part B for such state only requirements, except as otherwise required under the state Act;

V.C.10. A severability clause that demands the continued validity of the various permit requirements in the event of a challenge to any portion of the permit;

V.C.11. Provisions stating the following permit terms and conditions:

V.C.11.a. The permittee must comply with all conditions of the permit issued under this Part C. Any permit noncompliance relating to federally enforceable terms or conditions constitutes a violation of the Federal Act, as well as the state Act and this regulation. Any permit noncompliance relating to state only terms or conditions constitutes a violation of the state Act and this regulation, shall be enforceable pursuant to state law, and shall not be enforceable by citizens under Section 304 of the Federal Act. Any such violation of the Federal Act, the state Act or regulations implementing either statute is grounds for enforcement action, for permit termination, revocation and reissuance or modification or for denial of a permit renewal application.

V.C.11.b. It shall not be a defense for a permittee in an enforcement action or a consideration in favor of a permittee in a permit termination, revocation or modification action or action denying a permit renewal application that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of the permit;

V.C.11.c. The permit may be modified, revoked, reopened, and reissued, or terminated for cause. The filing of any request by the permittee for a permit modification, revocation and reissuance, or termination, or any notification of planned changes or anticipated noncompliance does not stay any permit condition, except as provided in Sections X. and XI. of this Part C;

V.C.11.d. The permit does not convey any property rights of any sort, or any exclusive privilege;

V.C.11.e. The permittee shall furnish to the Division, within a reasonable time specified by the Division, any information that the Division may request in writing to determine whether cause exists for modifying, revoking and reissuing, or terminating the permit or to determine compliance with the permit. Upon request, the permittee shall also furnish to the Division copies of records required to be kept by the permittee, including information claimed to be confidential. Any information subject to a claim of confidentiality shall be specifically identified and submitted separately from information not subject to the claim;

V.C.12. A requirement that the permittee shall pay to the Division all applicable fees required by the state Act and regulations.

V.C.13. A provision that no permit revision shall be required under any approved economic incentives, marketable permits, emissions trading and other similar programs or processes for changes that are specifically provided for in the permit;

V.C.14. Terms and conditions for reasonably anticipated operating scenarios identified by the source in its application for a permit and approved by the Division, in accordance with Section IV.A. of Part A of this regulation.

V.C.15. Terms and conditions, if the permit applicant requests them, for the trading of emissions increases and decreases in the permitted facility, in accordance with Section IV.B. of Part A.

V.C.16. The following elements with respect to compliance:

V.C.16.a. Consistent with Sections III.B.7., III.B.8., III.C.8. through III.C.13., and V.C.4. through V.C.7. of this Part C, compliance, certification, testing, monitoring, reporting, and record keeping requirements sufficient to assure compliance with the terms and conditions of the permit. Any document (including reports) required by an operating permit shall contain a certification by a responsible official that meets the requirements of Section III.B.8. of this Part C;

V.C.16.b. Inspection and entry requirements that require, upon presentation of credentials and other documents as may be required by law, the permittee shall allow the Division or any authorized representative to perform the following:

V.C.16.b.(i) Enter upon the permittees premises where an operating permit source is located, or emissions-related activity is conducted, or where records must be kept under the terms of the permit;

V.C.16.b.(ii) Have access to, and copy, at reasonable times, any records that must be kept under the conditions of the permit;

V.C.16.b.(iii) Inspect at reasonable times any facilities, equipment (including monitoring and air pollution control equipment), practices, or operations regulated or required under the permit. The permittee shall provide, as part of its permit application, a list of any specialized safety equipment which may be necessary for use by an inspector; and

V.C.16.b.(iv) Any sampling or monitoring of substances or parameters at reasonable times for the purpose of assuring compliance with the permit or applicable requirements;

V.C.16.c. A schedule of compliance consistent with Section III.C. of this Part C;

V.C.16.d. Progress reports consistent with an applicable schedule of compliance and Section III.C. of this Part C, to be submitted at least semiannually or at a more frequent period if so specified in the applicable requirement or by the Division. Such progress reports shall contain the following:

V.C.16.d.(i) Dates for achieving the activities, milestones, or compliance required in the schedule for compliance, and dates when such activities, milestones, or compliance were achieved; and

V.C.16.d.(ii) An explanation of why any dates in the schedule of compliance were not or will not be met, and any preventive or corrective measures adopted.

V.C.16.e. Requirements for compliance certification with terms and conditions contained in the permit, including emission limitations, standards, or work practices. Permits shall include each of the following:

V.C.16.e.(i) The frequency (which shall not be less than annually or such more frequent periods as specified in the applicable requirement or by the Division) of submission of compliance certifications;

V.C.16.e.(ii) In accordance with Sections V.C.4. through V.C.7. of this Part C, a means of monitoring the compliance of the source with its emissions limitations, standards and work practices;

V.C.16.e.(iii) A requirement that the compliance certification include the following:

V.C.16.e.(iii)(A) The identification of each permit term and condition that is the basis of the certification;

V.C.16.e.(iii)(B) The compliance status;

V.C.16.e.(iii)(C) Whether compliance was continuous or intermittent;

V.C.16.e.(iii)(D) The method(s) used for determining the compliance status of the source, currently and over the reporting period, consistent with Sections V.C.4. through V.C.7. of this Part C; and whether the data collection using the methods referenced for compliance certification provide continuous or intermittent data; and

V.C.16.e.(iii)(E) Such other facts as the Division may require to determine the compliance status of the source.

V.C.16.e.(iv) A requirement that all compliance certifications shall be submitted to the Administrator as well as to the Division. This requirement shall not apply to sources subject to the operating permit requirements solely due to state only conditions pursuant to the state Act;

V.C.16.e.(v) Any additional requirements for compliance assurance monitoring and compliance certification;

V.C.16.e.(vi) Such other provisions as the Division may require.

V.C.17. If a source is required to develop and register a risk management plan pursuant to Section 112(r) of the Federal Act, the permit shall only refer to such plan and state the source's compliance with such registration requirement. The content of the risk management plan will not be incorporated as a permit term.

V.D. The permit shield shall extend to applicable requirements that are included and specifically identified in the permit. Upon request, the Division shall include in the permit a determination identifying specific requirements that do not apply to the source. The source shall specify in its permit application for such a determination the requirements as to which the determination is requested. The permit shall state that the permit shield applies to any requirements so identified. A request for a determination to extend the shield to requirements deemed applicable to the source may be made either in the original permit application or in a subsequent application for a permit modification.

V.E. If the Division denies a permit, imposes conditions on a permit that are contested by the applicant, revokes a permit, or requires a permit from a source that may qualify for an exemption, the applicant or owner or operator of the source may request a hearing before the Commission in accordance with the Commission's Procedures for Adjudications. The request for a hearing must be filed with the Commission within thirty days after the issuance of the permit, denial or revocation. The hearing shall be held in accordance with Colorado Revised Statute Sections 25-7-119 and 24-4-105 and the Commission's Procedures for Adjudications.

V.F. The Division shall submit to the Administrator a copy of each permit application (including any application for permit modification), each proposed permit, and each final operating permit.

5 CCR 1001-5-C-V

37 CR 18, September 25, 2014, effective 10/15/2014

37 CR 24, December 25, 2014, effective 1/14/2015

39 CR 04, February 25, 2016, effective 3/16/2016

39 CR 21, November 10, 2016, effective 11/30/2016

41 CR 21, November 10, 2018, effective 11/30/2018

43 CR 02, January 25, 2020, effective 2/14/2020

44 CR 02, January 25, 2021, effective 2/14/2021

46 CR 02, January 25, 2022, effective 2/14/2023

46 CR 12, June 25, 2023, effective 7/15/2023

47 CR 06, March 25, 2024, effective 4/15/2024

47 CR 12, June 25, 2024, effective 7/15/2024