La. Admin. Code tit. 33 § III-507

Current through Register Vol. 50, No. 5, May 20, 2024

Section III-507 - Part 70 Operating Permits Program

A. Applicability. The effective date of this Section shall be the date of full or interim approval by the United States Environmental Protection Agency of the Louisiana Part 70 program consistent with 40 CFR Part 70. Notice of the date of EPA approval of the Louisiana Part 70 program shall be published in the next subsequent Louisiana Register following such approval.

1. The following sources are designated Part 70 sources and are required to obtain a permit which will meet the requirements of this Section:

a. any major source as defined in LAC 33:III.502;

b. any nonmajor (area) source of hazardous air pollutants required to obtain an operating permit pursuant to regulations promulgated under Section 112 of the federal Clean Air Act;

c. any nonmajor source required to obtain an operating permit pursuant to regulations promulgated under Section 111 of the federal Clean Air Act;

d. any affected source, as defined in LAC 33:III.502, pursuant to the acid rain provisions of Title IV of the federal Clean Air Act; and

e. any solid waste incineration unit required to obtain a permit pursuant to Section 129(e) of the federal Clean Air Act.

2. The owner or operator of any source exempt from the requirements to obtain a permit under this Section may opt to apply for a permit under this Section.

3. Any permit issued under the requirements of this Section shall incorporate all federally applicable requirements for each emissions unit at the source.

B. Obligation to Operate under a Permit

1. Obtaining a permit in accordance with the requirements of this Section shall fulfill the obligation of the owner and operator of a Part 70 source to have a permit issued under the requirements of Title V of the federal Clean Air Act ( 42 U.S.C. 7401 et seq.) and 40 CFR Part 70.

2. No part 70 source may operate after the time that the owner or operator of such source is required to submit a permit application under Subsection C of this Section, unless an application has been submitted by the submittal deadline and such application provides information addressing all applicable sections of the application form and has been certified as complete in accordance with LAC 33:III.517.B.1. No part 70 source may operate after the deadline provided for supplying additional information requested by the permitting authority under LAC 33:III.519, unless such additional information has been submitted within the time specified by the permitting authority. Permits issued to the part 70 source under this Section shall include the elements required by 40 CFR 70.6. The department hereby adopts and incorporates by reference the provisions of 40 CFR 70.6(a), July 1, 2021. Upon issuance of the permit, the part 70 source shall be operated in compliance with all terms and conditions of the permit. Noncompliance with any federally applicable term or condition of the permit shall constitute a violation of the Clean Air Act and shall be grounds for enforcement action; for permit termination, revocation and reissuance, or revision; or for denial of a permit renewal application.

C. Initial Permit Applications

1. Existing Sources. The owner or operator of any Part 70 source for which construction or operation has begun prior to the effective date of this Section shall submit an application for an initial Part 70 permit. Permit applications shall be prepared in accordance with LAC 33:III.517 and with forms and guidance provided by the permitting authority, and shall be submitted no later than one year after the effective date of the Louisiana Part 70 program.

a. Owners and operators of Part 70 sources may be required to submit initial Part 70 permit applications prior to the date one year from the effective date of the Louisiana Part 70 program upon request of the permitting authority. Notice of requests for submittal of permit applications prior to one year from program approval shall be published in the Louisiana Register and shall allow a reasonable time for response, which shall be no less than 90 days from the date the request is published. It is the intent of the permitting authority to take final action on at least one-third of initial applications submitted for existing Part 70 sources annually over a period not to exceed three years after the effective date of this Section.

b. Notwithstanding the time periods for application submittal established in Paragraph C.1 and Subparagraph C.1.a of this Section, permit applications for affected Phase II sources under the federal Acid Rain Program shall be submitted in accordance with the timeframes specified in LAC 33:III.505.D.2.

c. Final action on any application containing an early reduction demonstration under Section 112(i)(5) of the Clean Air Act shall be taken within nine months of receipt of the complete application.

2. New Sources. The owner or operator of any source which will constitute a Part 70 source and for which construction will commence after the effective date of the Louisiana Part 70 program shall submit a permit application prior to construction and pursuant to LAC 33:III.517. The application shall include all information required for applications pertaining to a Part 70 source. Construction shall not begin prior to approval by the permitting authority. Such approval may be provided either by authorization to construct in accordance with LAC 33:III.501.C.3 or by issuance of the permit.

3. Newly Regulated Sources. The owner or operator of any source that becomes subject to the requirements of this Section after the effective date of the Louisiana Part 70 program due to regulations promulgated by the administrator or by the Department of Environmental Quality shall submit an application to the Office of Environmental Services in accordance with the requirements established by the applicable regulation. In no case shall the required application be submitted later than one year from the date on which the source first becomes subject to this Section.

D. Permit Revisions

1. Transition Period. The following provisions shall apply after the effective date of this Section and prior to the issuance of the initial permit for a Part 70 source under this Section.

a. The terms and conditions of any permit or exemption issued to a Part 70 source by the permitting authority prior to the effective date of this Section shall remain in effect, unless otherwise inconsistent with the provisions of this Chapter or revised in accordance with this Chapter, until the initial permit under this Section for such Part 70 source is issued.

b. Any Part 70 source operating under grandfathered status on the effective date of this Section may maintain such grandfathered status in the transition period consistent with the provisions of LAC 33:III.501.B.6.

c. The owner or operator of any Part 70 source who intends to make a change at the source after the effective date of this Section and prior to release of the initial proposed permit under this Section shall submit any required notification, request, or permit application in accordance with the provisions of this Chapter. The owner or operator shall obtain any required permit revision to the existing air quality permit for such source. If the application for an initial permit under this Section has already been submitted, the owner or operator shall supplement and amend the pending application consistent with LAC 33:III.517.C.

d. The permitting authority may revise any existing permit, or for previously exempt or grandfathered sources may issue a new permit, prior to issuance of an initial permit under this Section. To limit duplicative permitting activities, the owner or operator or the permitting authority may request that the initial permit under this Section be issued timely with regard to the proposed change at the source.

2. The following provisions shall apply after the issuance of the initial permit for a Part 70 source under this Section.

a. Revisions to the initial permit shall be accomplished in accordance with the procedures provided for in LAC 33:III.521, 525, or 527.

b. Applications for permit revisions for Part 70 sources shall be submitted prior to commencement of any proposed construction or modification.

c. Prior to commencement of construction or modification of a Part 70 source, the owner or operator shall obtain from the permitting authority either written authorization to construct in accordance with LAC 33:III.501.C.3 or a permit or permit revision.

E. Permit Duration, Expiration and Renewal

1. Permits issued to any Part 70 source shall be effective for a duration of five years from the effective date of the permit. Permits are effective on the date of issuance, unless a later date is specified therein.

2. The starting date of the five-year permit duration is not altered by any revision or reopening of the permit which affects only a portion of the permit. Reopenings or revisions which require DEQ and EPA review as well as affected state and public notice of an entire permit shall establish the start of a new five-year permit duration, except in the case of acid rain permits.

3. Unless renewed in accordance with this Section, permits issued under this Section shall expire at the end of the effective duration. Permit expiration terminates the owner's and operator's right to operate the source, consistent with Subsection B of this Section, unless a timely and complete renewal application has been submitted pursuant to the following paragraph, or for Phase II repowering extensions, in accordance with LAC 33:III.505.H.3. Terms and conditions of the existing permit shall remain in effect until such time as the permitting authority takes final action on the application for renewal.

4. Any permit application to renew an existing permit shall be submitted at least six months prior to the date of permit expiration, or at such earlier time as may be required by the existing permit or approved by the permitting authority. In no event shall the application for permit renewal be submitted more than 18 months before the date of permit expiration.

5. Any permit being renewed shall be subject to the same procedural requirements that apply to initial permit issuance, as found in LAC 33:III.519.

F. Changes Requiring State-Only Permit Revisions

1. Any change at a Part 70 source which is not addressed or prohibited in the federally enforceable terms and conditions of the permit may be designated as a state-only change, and may be made without a revision to the federally enforceable terms and conditions currently existing in the permit, provided that the change:

a. shall meet all applicable standards and requirements;

b. does not violate any existing federally enforceable permit term or condition;

c. is not subject to any requirement under Title IV of the Clean Air Act;

d. is not a Title I modification; and

e. shall not be protected by a permit shield under LAC 33:III.507.I.

2. Designation of a change as state-only affects only the federal requirements for processing of the change under 40 CFR Part 70, and does not relieve the owner or operator of the source from the obligation to comply with all applicable state preconstruction review and permitting requirements. Any change designated as state-only will be treated as appropriate under state permitting requirements.

3. The owner or operator of a Part 70 source who plans to initiate a change meeting the criteria established in Paragraph F.1 of this Section may submit a request to the permitting authority that the change be designated state-only. Such request shall be accompanied by any notification or application required pursuant to LAC 33:III.511 or 517.

4. Any submittal pertaining to a change designated as state-only pursuant to Paragraph F.3 of this Section shall be submitted by the applicant to EPA and shall be maintained on file by the applicant in fulfillment of the obligation to provide written notice and to keep records under 40 CFR 70.4(b)(14).

G . Operational Flexibility

1. Nothing in this Subsection shall be construed to relieve the owner or operator of a Part 70 source from complying with all applicable requirements and regulations, including all applicable state and federal preconstruction review and permitting requirements.

2. Changes which Contravene a Permit Term. The owner or operator of a Part 70 source may institute a change at the permitted facility which contravenes an express federally enforceable permit term or condition without revising the existing federally enforceable permit terms and conditions, provided:

a. the change will not violate any applicable requirement;

b. the change will not result in an exceedance of emissions allowable under the permit, whether expressed therein as a rate of emissions or in terms of total emissions;

c. the change will not contravene any testing, monitoring, recordkeeping, reporting, or compliance certification requirements of the existing permit;

d. the change will not constitute a Title I Modification, as defined in LAC 33:III.502, and is not to an acid rain permit term or condition; and

e. at least seven days prior to making the change, the owner or operator will provide written notice to the administrator and to the permitting authority which shall include a description of the change, the date on which the change will occur, any change in emissions, and any permit term or condition that is no longer applicable as a result of the change. The source, the permitting authority, and EPA shall each attach the written notice to their copy of the permit.

3. Terms Allowing for Emissions Trading under a Cap. Upon request of the owner or operator, the permitting authority shall include in the federally enforceable terms of the permit provisions 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, provided:

a. the permit applicant shall include in its application proposed replicable procedures and permit terms that ensure the emissions trades are quantifiable and enforceable;

b. the permitting authority shall include in the emissions trading provisions only those emissions units for which emissions are verifiable and quantifiable and for which there are replicable procedures to enforce the emissions trades;

c. the permit shall require compliance at all times with all applicable requirements at the source. The owner or operator shall provide seven-day written notice to the administrator and to the permitting authority prior to making a trade in emissions. Such notice shall state when the change will occur and shall describe the changes in emissions that will occur and how these increases and decreases in emissions will comply with the terms and conditions of the permit. The source, the permitting authority, and EPA shall each attach the written notice to their copy of the permit.

4. Alternative Emission Limits under the SIP. The owner or operator of a Part 70 source may utilize emissions trading or alternative emission limits to comply with the State Implementation Plan as follows.

a. In cases where the State Implementation Plan allows a determination of an alternative emission limit equivalent to that contained in the plan, the owner or operator may request that such an alternative emission limit be specified in the permit. Any such request shall demonstrate, in the permit application, accountable, enforceable, and based on replicable procedures, and shall propose permit terms and conditions to satisfy these requirements.

b. In cases where the State Implementation Plan provides for emission trades without a permit revision, the owner or operator may trade increases and decreases in emissions at the permitted facility where the permit does not already allow such trading, provided a seven-day notice is submitted as prescribed by 40 CFR 70.4(b)(12)(ii). The source, the permitting authority, and EPA shall each attach the written notice to their copy of the permit. Within 180 days of implementing the emissions trading, permit terms and conditions satisfying the requirements of Subparagraph G.4.a of this Section shall be incorporated into the permit.

5. Alternative Operating Scenarios. The owner or operator of a Part 70 source may operate such source under any operating scenario incorporated in the applicable permit. Contemporaneous with making a change from one operating scenario to another, the owner or operator shall record in a log at the permitted facility a record of the scenario under which it is operating. Any reasonably anticipated alternative operating scenarios may be identified by the owner or operator through a permit application submitted in accordance with LAC 33:III.517, and included in the permit as approved by the permitting authority.

H. Compliance Measures and Certifications of Compliance. Each permit issued to a Part 70 source shall include the following elements with regard to compliance:

1. compliance certification, testing, monitoring, reporting, and recordkeeping requirements sufficient to assure compliance with the terms and conditions of the permit as required by 40 CFR 70.6(a)(3), including:

a. where an applicable requirement does not require periodic testing or instrumental or noninstrumental 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 40 CFR 70.6(a)(3)(iii). 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 this Subparagraph;

b. for any document required to be submitted under this Paragraph, a certification by a responsible official as defined in LAC 33:III.502 and required by LAC 33:III.517.B.1;

2. inspection and entry requirements sufficient to allow the permitting authority or an authorized representative to enter the property where the Part 70 source is located and to perform inspections of records, facilities, equipment, practices, or operations regulated or required under the permit and to perform any other inspection or monitoring activity authorized by the Clean Air Act or by the Louisiana Environmental Quality Act;

3. a schedule of compliance consistent with LAC 33:III.517.E.4;

4. a requirement for progress reports to be submitted to the Office of Environmental Compliance at least semiannually, or at a more frequent period if specified in the applicable requirement. Such progress reports shall contain the following:

a. 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

b. an explanation of why dates in the schedule of compliance were not or will not be met, and any preventive or corrective measures adopted;

5. 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:

a. the frequency (not less than annually or such more frequent periods as specified in the applicable requirement or by the permitting authority) of submissions of compliance certifications;

b. a means for monitoring the compliance of the source with its emissions limitations, standards, and work practices;

c. a requirement that the compliance certification include the following:

i. the identification of each term or condition of the permit that is the basis of the certification;

ii. the compliance status;

iii. whether compliance was continuous or intermittent;

iv. the method(s) used for determining the compliance status of the source; and

v. such other facts as the permitting authority may require to determine the compliance status of the source;

d. a requirement that all compliance certifications be submitted to the administrator as well as to the Office of Environmental Compliance; and

e. such additional requirements as may be specified pursuant to Sections 114(a)(3) and 504(b) of the Clean Air Act; and

6. such other provisions as the permitting authority may require.

I. Permit Shields

1. Requests. The owner or operator of any Part 70 source may include in the permit application a request that the permit incorporate a permit shield for explicitly stated federally applicable requirements provided that the shield shall not affect applicable requirements of the federal Acid Rain Program and that the request pertains only to one or more of the following:

a. applicability determinations of standards and requirements under the following federal programs:

i. New Source Performance Standards (NSPS);

ii. Prevention of Significant Deterioration (PSD);

iii. Nonattainment New Source Review (NNSR);

iv. Hazardous Air Pollutants (MACT/NESHAP);

b. interpretations regarding the frequency of and procedures for monitoring, recordkeeping, and reporting provisions of federally applicable requirements; and

c. interpretations regarding appropriate means of compliance when more than one federal requirement applies to the same emissions unit at a source.

2. Action on Requests

a. The permitting authority shall have full discretion in determining whether to grant or deny any permit shield request or any portion thereof.

b. A statement indicating that a permit shield is incorporated in the proposed permit shall appear in the public notice provided for under LAC 33:III.531. A permit shield shall not be granted without prior public notice and shall not extend to any permit term or condition which has not undergone public notice.

c. A permit that does not expressly state that a permit shield exists shall be presumed not to provide such a shield.

3. Effect of the Permit Shield

a. Any permit shield granted by the permitting authority shall explicitly state that compliance with specified permit terms and conditions shall be deemed compliance with specified corresponding federally applicable requirements. Additionally, for shields pertaining to applicability determinations, the shield may state that specified federal requirements are not applicable to the source provided that the permit shall contain the applicability determination.

b. The issuance of a shield shall not affect enforcement or compliance determinations or liability for any activity or violation of applicable requirements prior to or at the time of permit issuance.

c. The issuance of a shield shall not affect the provisions of Section 303 (Emergency Orders) or Section 114 (Inspections, Monitoring, and Entry) of the Clean Air Act, including the authority of the administrator under those sections.

d. A permit shield shall not be construed or utilized to guarantee emission control efficiency of any control equipment or operating scheme.

4. Revocation or Revision of the Permit Shield

a. If any determination or interpretation made pursuant to Paragraph I.1 of this Section is determined to have been based upon inaccurate data or information pertaining to the source, the corresponding provision of the permit shield may be deemed invalid fro m the time of issuance by the permitting authority without regard to willful or knowing intent of the owner or operator upon submittal of the inaccurate data.

b. The permitting authority shall have full discretion to reopen the permit and to terminate or revise the permit shield at any time under LAC 33:III.529.

J. Upset Provisions

1. For the purposes of this Subsection, an upset is any situation arising from sudden and reasonably unforeseeable events beyond the control of the owner or operator, including acts of God, which situation requires immediate corrective action to restore normal operation and that causes the source to exceed a technology-based emissions limitation under the permit due to unavoidable increases in emissions attributable to the situation. An upset shall not include noncompliance to the extent caused by improperly designed equipment, lack of preventative maintenance, careless or improper operation, or operator error.

2. An upset constitutes an affirmative defense to an action brought for noncompliance with such technology-based emissions limitations provided the owner or operator demonstrates through properly signed, contemporaneous operating logs or other relevant evidence that:

a. an upset occurred and that the owner or operator can identify the cause(s) of the upset;

b. the permitted facility was at the time being properly operated;

c. during the period of the upset the operator took all reasonable steps to minimize levels of emissions that exceeded the emissions standards and other requirements in the permit; and

d. the owner or operator notified the permitting authority in accordance with LAC 33:I.Chapter 39.

3. In any enforcement proceeding, the owner and operator seeking to establish the occurrence of an upset has the burden of proof.

4. The provisions of this Subsection are in addition to any emergency or upset provisions contained in any applicable requirement.

5. The provisions of this Subsection do not apply to acid rain emission limitations.

La. Admin. Code tit. 33, § III-507

Promulgated by the Department of Environmental Quality, Office of Air Quality and Nuclear Energy, Air Quality Division, LR 13:741 (December 1987), amended by the Office of Air Quality and Radiation Protection, Air Quality Division, LR 19:1420 (November 1993), LR 20:1375 (December 1994), amended by the Office of Environmental Assessment, Environmental Planning Division, LR 26:2447 (November 2000), LR 27:2229 (December 2001), LR 28:994 (May 2002), LR 29:698 (May 2003), LR 30:1008 (May 2004), amended by the Office of Environmental Assessment, LR 31:1061 (May 2005), LR 31:1568 (July 2005), amended by the Office of the Secretary, Legal Affairs Division, LR 31:2437 (October 2005), LR 32:808 (May 2006), LR 33:1619 (August 2007), LR 33:2083 (October 2007), LR 33:2630 (December 2007), LR 34:1391 (July 2008), LR 35:1107 (June 2009), LR 36:2272 (October 2010), LR 37:2990 (October 2011), LR 38:1229 (May 2012), amended by the Office of the Secretary, Legal Division, LR 39:1276 (May 2013), LR 40:1334 (July 2014), LR 41:1274 (July 2015), Amended by the Office of the Secretary, LR 421085 (7/1/2016), Amended by the Office of the Secretary, Legal Affairs and Criminal Investigations Division, LR 44746 (4/1/2018), Amended LR 46893 (7/1/2020), Amended by the Office of the Secretary Legal Affairs and Criminal Investigations Division, LR 47355 (3/1/2021), Amended LR 48488 (3/1/2022).

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2011, 2023, 2024, and 2054.