7 Del. Admin. Code § 1130-6.0

Current through Register Vol. 27, No. 12, June 1, 2024

Section 1130-6.0 - Permit Contents

6.1 Standard Permit Requirements. Each permit issued under this regulation shall include all applicable requirements that apply to the permitted source at the time of issuance. Each permit shall include the following elements:

6.1.1 Emission Limitations and Standards. The permit shall specify emissions limitations and standards that constitute applicable requirements, and shall include those operational requirements and limitations necessary to assure compliance with all applicable requirements at the time of permit issuance.

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

6.1.1.2 The permit shall state that, where an applicable requirement of the Act is more stringent than an applicable requirement of regulations promulgated under Title IV of the Act, both provisions shall be incorporated into the permit and shall be enforceable by EPA.

6.1.1.3 If an applicable implementation plan or an applicable requirement allows a source to comply through an alternative emission limit or means of compliance, a source may request that such an alternative limit or means of compliance be specified in its permit. Such an alternative emission limit or means of compliance shall be included in a source's permit upon a showing that it is quantifiable, accountable, enforceable, and based on replicable procedures. The source shall propose permit terms and conditions to satisfy these requirements in its application.

6.1.2 Permit Duration. The permit shall specify a fixed term. The Department shall issue permits for any fixed period requested in the permit application, not to exceed five years, except as provided in 6.1.2.1 and 6.1.2.2 of this regulation:

6.1.2.1 Permits issued to affected sources shall in all cases have a fixed term of five years.

6.1.2.2 Permits issued to solid waste incineration units combusting municipal waste subject to standards under section 129(e) of the Act shall have a term not to exceed 12 years. Such permits shall be reviewed every five years.

6.1.3 Monitoring and Related Recordkeeping and Reporting Requirements.

6.1.3.1 Each permit shall contain the following requirements with respect to monitoring:

6.1.3.1.1 All emissions monitoring and analysis procedures or test methods required under the applicable requirements, including any procedures and methods promulgated pursuant to sections 114(a)(3) or 504(b) of the Act;

6.1.3.1.2 Where the applicable requirement does not require periodic testing or instrumental or non-instrumental monitoring (which may consist of recordkeeping designed to serve as monitoring), periodic monitoring sufficient to yield reliable data from the relevant time period that are representative of the source's compliance with the permit, as reported pursuant to 6.1.3.3 of this regulation. 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 of 6.1.3 of this regulation; and

6.1.3.1.3 As necessary, requirements concerning the use, maintenance, and, where appropriate, installation of monitoring equipment or methods.

6.1.3.2 With respect to recordkeeping, the permit shall incorporate all applicable recordkeeping requirements and require, where applicable, the following:

6.1.3.2.1 Records of required monitoring information that include the following:

6.1.3.2.1.1 The date, place as defined in the permit, and time of sampling or measurements;

6.1.3.2.1.2 The date(s) analyses were performed;

6.1.3.2.1.3 The company or entity that performed the analyses;

6.1.3.2.1.4 The analytical techniques or methods used;

6.1.3.2.1.5 The results of such analyses; and

6.1.3.2.1.6 The operating conditions as existing at the time of sampling or measurement.

6.1.3.2.2 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 includes all calibration and maintenance records and all original strip-chart recordings, where appropriate, for continuous monitoring instrumentation, and copies of all reports required by the permit. Where appropriate, the permit may specify that records may be maintained in computerized form.

6.1.3.2.3 Unless otherwise mandated by applicable requirements, a permit may require that records be kept of data, or periodic samples of monitoring data, where such data are, in the judgment of the Department, adequate and necessary to demonstrate continued compliance with the terms and conditions of the permit. The provision of 6.1.3.2.3 of this regulation shall not supersede 6.1.3.2.1 or 6.1.3.2.2 of this regulation.

6.1.3.3 With respect to reporting, the permit shall incorporate all applicable reporting requirements and require the following:

6.1.3.3.1 A permit issued under these regulations shall require the permittee to submit a report of any required monitoring every six months. To the extent possible, the schedule for submission of such reports shall be timed to coincide with other periodic reports required by the permit, including the permittee's annual compliance certification.

6.1.3.3.2 Each report submitted under 6.1.3.3.1 of this regulation shall identify any deviations from permit requirements since the previous report, and any deviations from the monitoring, recordkeeping and reporting requirements under the permit.

6.1.3.3.3 In addition to semiannual monitoring reports, each permittee shall be required to submit supplemental reports as follows:

6.1.3.3.3.1 Any deviation resulting from emergency conditions as defined in 6.7 of this regulation shall be reported within two working days of the date on which the permittee first becomes aware of the deviation, if the permittee wishes to assert the affirmative defense authorized under 6.7 of this regulation;

6.1.3.3.3.2 Any deviation that poses an imminent and substantial danger to public health, safety, or the environment shall be reported immediately upon discovery and after activating the appropriate site emergency plan;

6.1.3.3.3.3 Any other deviations that are identified in the permit as requiring more frequent reporting than the permittee's semiannual report shall be reported on the schedule specified in the permit;

6.1.3.3.3.4 All reports of deviations from permit conditions shall identify the probable cause of the deviations and any corrective actions or preventative measures taken.

6.1.3.3.3.5 Nothing herein shall relieve the permittee from any reporting requirements under federal, state or local laws.

6.1.3.3.4 Every report submitted under 6.1.3 of this regulation shall be certified by a responsible official, except that if a report of a deviation required under 6.1.3.3.3 of this regulation must be submitted within 10 days of the deviation, the report may be submitted in the first instance without a certification if an appropriate certification is provided within 10 days thereafter, together with any corrected or supplemental information required concerning the deviation.

6.1.3.3.5 A permittee may request confidential treatment for information in any report submitted under 6.1.3 of this regulation pursuant to the limitations and procedures set out in 5.1.4 of this regulation.

6.1.4 Risk Management Plans. If the source is required to develop and register a risk management plan pursuant to section 112(r) of the Act, the permit need only specify that it will comply with the requirement to register such a plan. The content of the risk management plan need not itself be incorporated as a permit term.

6.1.5 Emissions Exceeding Title IV Allowances. The permit shall prohibit emissions exceeding any allowances that the source lawfully holds under Title IV of the Act or the regulations promulgated thereunder.

6.1.5.1 No permit revision shall be required for increases in emissions that are authorized by allowances acquired pursuant to the acid rain program, provided that such increases do not require a permit revision under any other applicable requirement.

6.1.5.2 No limit shall be placed on the number of allowances held by the source. The source may not, however, use allowances as a defense to noncompliance with any other applicable requirement.

6.1.5.3 Any such allowance shall be accounted for according to the procedures established in regulations promulgated under Title IV of the Act.

6.1.6 Severability Clause. The permit shall include a severability clause to ensure the continued validity of the various permit requirements in the event of a challenge to any portions of the permit.

6.1.7 General Requirements. The permit shall include provisions stating the following:

6.1.7.1 The permittee must comply with all conditions of the permit. Any noncompliance with the permit constitutes a violation of the Act and is grounds for enforcement action, for permit termination, revocation and reissuance or modification, or for denial of a permit renewal application.

6.1.7.2 It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit. However, nothing in 6.1.7 of this regulation shall be construed as precluding consideration of a need to halt or reduce activity as a mitigating factor in assessing penalties for noncompliance if the health, safety, or environmental impacts of halting or reducing operations would be more serious than the impacts of continuing operations.

6.1.7.3 The permit may be modified, revoked, reopened, and reissued, or terminated for cause. Except as provided under 7.5.1 of this regulation for minor permit modifications, the filing of a request by the permittee for a permit modification, revocation and reissuance, or termination, or of a modification of planned changes or anticipated noncompliance does not stay any permit condition.

6.1.7.4 The permit does not convey any property rights of any sort, or any exclusive privilege.

6.1.7.5 The permittee shall furnish to the Department, upon receipt of a written request and within a reasonable time, any information that the Department may request to determine whether cause exists to modify, terminate or revoke the permit or to determine compliance with the permit. Upon request, the permittee shall also furnish to the Department copies of records required to be kept by the permit. The permittee may make a claim of confidentiality pursuant to 5.1.4 of this regulation for any information or records submitted under 6.1.7 of this regulation.

6.1.8 Fees. The permit shall provide that the permittee will pay fees to the Department consistent with the fee schedule established from time to time by the Delaware General Assembly.

6.1.9 Emissions Trading. The permit shall provide 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 provided for in the permit.

6.1.10 Operating Scenarios. The permit shall include terms and conditions applicable to all operating scenarios described in the permit application and eligible for approval under applicable requirements. The permit shall authorize the permittee to make changes among operating scenarios authorized in the permit without notice, but shall require the permittee contemporaneously with making a change from one operating scenario to another to record in a log at the permitted facility the scenario under which it is operating. Each operating scenario shall meet all applicable requirements, and the requirements of this regulation.

6.1.11 Emissions Averaging. The permit shall include terms and conditions, if the permit applicant requests them, for the trading or averaging of emissions increases and decreases in the permitted facility, to the extent that the applicable requirements provide for trading or averaging such increases and decreases. Such terms and conditions shall include terms under 6.1 and 6.3 of this regulation to determine compliance and shall satisfy all requirements of the applicable requirements authorizing such trading or averaging.

6.2 Federally Enforceable Requirements

6.2.1 Except as provided in 6.2.2 of this regulation, all terms and conditions in a permit issued under 6.0 of this regulation, including any provisions designed to limit a source's potential to emit, are enforceable by the Department, by EPA, and by citizens under section 304 of the Act.

6.2.2 Notwithstanding 6.2.1 of this regulation, the Department shall designate as not being federally enforceable under the Act any terms and conditions included in the permit that are not required under the Act or any of its applicable requirements, and such terms and conditions shall not be enforceable by EPA and citizens under section 304 of the Act. Terms and conditions so designated shall not be subject to the requirements of 7.0 and 8.0 of this regulation or of 40 CFR Part 70 . Terms and conditions designated under 6.2 of this regulation may be included in an addendum to the source's permit.

6.3 Compliance Requirements. All permits issued under this regulation shall contain the following elements with respect to compliance:

6.3.1 Consistent with 6.1.3 of this regulation, compliance certification, testing, monitoring, reporting, and recordkeeping requirements sufficient to assure compliance with the terms and conditions of the permit. Any document (including reports) required by a permit under this regulation shall contain a certification by a responsible official that meets the requirements of 5.6 of this regulation.

6.3.2 Inspection and entry requirements that require that, upon presentation of identification, the permittee shall allow authorized officials of the Department to perform the following:

6.3.2.1 Enter upon the permittee's premises where a source is located or emissions-related activity is conducted, or where records that must be kept under the conditions of the permit may be located;

6.3.2.2 Have access to and copy, at reasonable times, any records that must be kept under the conditions of the permit;

6.3.2.3 Inspect at reasonable times and using reasonable safety practices any facilities, equipment (including monitoring and air pollution control equipment), practices, or operations regulated or required under the permit; and

6.3.2.4 As authorized by the Act, sample or monitor at reasonable times substances or parameters for the purpose of assuring compliance with the permit or applicable requirements.

6.3.3 A schedule of compliance to the extent required under 5.4.8.3 of this regulation.

6.3.4 To the extent required under an applicable schedule of compliance and 5.4.8 of this regulation, progress reports, to be submitted at least semiannually, or more frequently if specified in the applicable requirement or by the Department. Such progress reports shall contain the following:

6.3.4.1 Dates for achieving the activities, milestones, or compliance required in the schedule of compliance, and dates when such activities, milestones or compliance were achieved; and

6.3.4.2 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.

6.3.5 Requirements for compliance certification with terms and conditions contained in the permit, including emission limitations, standards, or work practices. Each permit shall specify:

6.3.5.1 The frequency (which shall be annually unless the applicable requirement or the Department specifies submission more frequently) of submissions of compliance certifications;

6.3.5.2 In accordance with 6.1.3 of this regulation, a means for monitoring the compliance of the source with emissions limitations, standards, and work practices contained in applicable requirements;

6.3.5.3 A requirement that the compliance certification include the following:

6.3.5.3.1 The identification of each term or condition of the permit that is the basis of the certification;

6.3.5.3.2 The permittee's current compliance status, as shown by monitoring data and other information reasonably available to the permittee;

6.3.5.3.3 Whether compliance was continuous or intermittent;

6.3.5.3.4 The method or methods used for determining the compliance status of the source, currently and over the reporting period as required by 6.1.3 of this regulation; and

6.3.5.3.5 Such other facts as the Department may require to determine the compliance status of the source;

6.3.5.4 A requirement that all compliance certifications be submitted to EPA as well as to the Department;

6.3.5.5 Such additional requirements as may be specified pursuant to sections 114(a)(3) and 504(b) of the Act; and

6.3.5.6 Such other provisions as the Department may require.

6.4 Source Category Permits

6.4.1 The Department may establish source categories that it concludes are appropriate for source category permits, and any source may petition the Department to establish a source category. The Department may identify a category of sources if it finds that:

6.4.1.1 There are several permittees, permit applicants or potential permit applicants who have the same or substantially similar operations, emissions, activities or facilities;

6.4.1.2 The permittees, permit applicants or potential permit applicants emit the same types of regulated air pollutants;

6.4.1.3 The operations, emissions, activities or facilities are subject to the same or similar standards, limitations and operating requirements; and

6.4.1.4 The operations, emissions, activities or facilities are subject to the same or similar monitoring requirements.

6.4.2 Source Category Permits may be issued for the following purposes:

6.4.2.1 To establish terms and conditions to implement applicable requirements for a source category;

6.4.2.2 To establish terms and conditions to implement applicable requirements for specified categories of changes to permitted sources; and

6.4.2.3 To establish federally-enforceable caps on emissions from sources in the specified category.

6.4.3 No source category permit may be issued for affected sources under the acid rain program unless otherwise provided in regulations promulgated under Title IV of the Act.

6.4.4 For each source category identified, the Department may, after public notice and hearing conducted in accordance with the procedures specified in 7.10 of this regulation, adopt source category requirements including, but not limited to, emission limitations and standards, monitoring and related recordkeeping and reporting requirements, and fees, and criteria by which sources may qualify for source category permits.

6.4.5 After a source category has been established, any qualifying source may submit a source category application.

6.4.5.1 A source category application shall identify the source and provide information sufficient to demonstrate that it falls within the identified source category, together with any additional information that may be specified by the Department;

6.4.5.2 The Department shall act to approve or deny the application within 120 days of receipt; and

6.4.5.3 A final action approving or denying a source category application shall be subject to judicial review.

6.4.6 A source category permit issued under 6.0 of this regulation may provide that the source shall be entitled to the protection of the permit shield for all operations, activities and emissions addressed by the source category permit unless and to the extent that it is subsequently determined that the source does not qualify for the terms and conditions of the source category permit.

6.4.7 If some but not all of a source's operations, activities and emissions are eligible for coverage under one or more source categories, the source may apply for and receive coverage under the source category permits for the operations, activities and emissions that are so eligible. If the source is required under 3.0 of this regulation to obtain a permit addressing the remainder of its operations, activities and emissions, it may apply for and receive a permit that addresses specifically only those items not covered by the source category permits. In such a case, the source's permit shall identify all operations, activities and emissions that are subject to source category permits and incorporate those source category permits by reference. Unless the permit specifically states otherwise, the terms and conditions of any source category permits incorporated by reference shall apply.

6.5 Temporary Sources. The Department may issue a single permit authorizing emissions from similar operations by the same source owner or operator at multiple temporary locations. The operation must be temporary and involve at least one change of location during the term of the permit. No affected source shall be permitted as a temporary source. Permits for temporary sources shall include the following:

6.5.1 Conditions that will assure compliance with all applicable requirements at all authorized locations;

6.5.2 Requirements that the owner or operator notify the permitting authority at least 45 days in advance of each change in location;

6.5.3 The proposed change in location shall be subject to public comment and judicial review; and

6.5.4 Conditions that assure compliance with all other provisions of 6.0 of this regulation.

6.6 Permit Shield

6.6.1 Except as provided in this regulation, a source may request that the Department include in the Part 70 permit a provision stating that compliance with the terms and conditions of the permit shall constitute compliance with any applicable requirement specifically identified in the permit as of the day of permit issuance.

6.6.2 The Department may deny, in whole or in part, a permit shield requested pursuant to 6.6.1 of this regulation. Should the Department make such a denial, it shall identify the portion or portions of the permit to receive the permit shield and the portion or portions denied the permit shield, and shall set-forth the basis for denial.

6.6.3 A Part 70 permit that does not expressly provide a permit shield shall be presumed not to provide such a shield.

6.6.4 Nothing in 6.6 of this regulation shall in any way limit or affect the following:

6.6.4.1 The provisions of section 303 (Emergency Orders) of the Act, including the authority of the Administrator under that section; or

6.6.4.2 The liability of an owner or operator of a source for any violation of applicable requirements prior to or at the time of permit issuance;

6.6.4.3 The applicable requirements of the acid rain program, consistent with section 408(a) of the Act; or

6.6.4.4 The ability of EPA to obtain information from a source pursuant to section 114 of the Act.

6.7 Emergencies

6.7.1 Definitions

"Emergency" means any situation arising from sudden and reasonably unforeseeable events beyond the control of the source, including acts of God, which situation requires immediate corrective action to restore normal operation, and that causes the source to exceed a technology-based emission limitation under the permit, due to unavoidable increases in emissions attributable to the emergency.

6.7.2 Effect 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 6.7.3 of this regulation are met.

6.7.3 The affirmative defense of emergency shall be demonstrated through properly signed, contemporaneous operating logs, or other relevant evidence that:

6.7.3.1 An emergency occurred and that the permittee can identify the cause or causes of the emergency;

6.7.3.2 The permitted facility was at the time being operated in a prudent and professional manner and in compliance with generally accepted industry operations and maintenance procedures;

6.7.3.3 During the period of the emergency the permittee took all reasonable steps to minimize levels of emissions that exceeded the emission standards, or other requirements in the permit; and

6.7.3.4 The permittee submitted notice of the emergency to the Department within two working days of the time when emission limitations were exceeded due to the emergency. Such notice must contain a description of the emergency, any steps taken to mitigate emissions, and corrective actions taken.

6.7.4 In any enforcement proceeding, the permittee seeking to establish the occurrence of an emergency has the burden of proof.

6.7.5 The provision of 6.7 of this regulation is in addition to any emergency provision contained in any applicable requirement.

6.8 Operational Flexibility. Each permit issued under this regulation shall provide that a permitted facility is expressly authorized to make a section 502(b)(10) (of the Act) change within the facility without a permit revision, if the change is not a modification under any provision of Title I of the Act or the State Implementation Plan (SIP), does not involve a change in compliance schedule dates, and the change does not result in a level of emissions exceeding the emissions allowable under the permit, whether expressed therein as a rate of emissions or in terms of total emissions.

6.8.1 Before making a change under this provision, the permittee shall provide advance written notice to the Department and to EPA, describing the change to be made, the date on which the change will occur, any changes in emissions, and any permit terms and conditions that are affected, including any new applicable requirements. The permittee shall thereafter maintain a copy of the notice with the permit. The written notice shall be provided to EPA and the Department at least seven calendar days before the change is to be made, except that this period may be shortened or eliminated as necessary for a change that must be implemented more quickly to address unanticipated conditions posing a significant health, safety, or environmental hazard. If less than seven calendar days notice is provided because of a need to respond more quickly to such unanticipated conditions, the permittee shall provide notice to EPA and the Department as soon as possible after learning of the need to make the change, together with the reason or reasons why advance notice could not be given.

6.8.2 The permit shield provided under 6.6 of this regulation shall not apply to changes made under 6.0 of this regulation.

6.8.3 Upon the request of a permit applicant, the Department shall issue a permit that contains terms and conditions allowing for the trading of emissions increases and decreases in the permitted facility solely for the purpose of complying with a federally-enforceable emissions cap that is established in the permit independent of otherwise applicable requirements. The permit applicant shall include in its application proposed replicable procedures and permit terms that assure that the emissions trades are quantifiable and enforceable and comply with all applicable requirements and 6.1 and 6.3 of this regulation. Under 6.8.3 of this regulation, the written notification required above shall state when the change will occur and shall describe the changes in emissions that will result and how these increases and decreases in emissions will comply with the terms and conditions of the permit.

[08/11/22]

7 Del. Admin. Code § 1130-6.0

26 DE Reg. 123 (8/1/2022) (Final)