S.C. Code Regs. § § 61-62.70.7

Current through Register Vol. 48, No. 9, September 27, 2024

Section 61-62.70.7 - Permit issuance, renewal, reopenings, and revisions

(a) Action on application.

(1) A permit, permit modification, or renewal may be issued only if all of the following conditions have been met:

(i) The Department has received a complete application for a permit, permit modification, or permit renewal, except that a complete application need not be received before issuance of a general permit under Section 70.6(d)(d);

(ii) Except for modifications qualifying for minor permit modification procedures under Section s70.7(e)(2) and (3)(e)(2) and (3), the Department has complied with the requirements for public participation under Section 70.7(h)(h);

(iii) The Department has complied with the requirements for notifying and responding to affected States under Section 70.8(b)(b);

(iv) The conditions of the permit provide for compliance with all applicable requirements and the requirements of Part 70; and

(v) The Administrator has received a copy of the proposed permit and any notices required under Section s70.8(b)(a) and 70.8(c)(b), and has not objected to issuance of the permit under Section s70.8(a)(c) within the time period specified therein.

(2) The Department shall take final action on each permit application (including a request for permit modification or renewal) within 18 months, after receiving a complete application. Exceptions to this schedule are provided in the initial transition plan required under 40 CFR 70.4(b)(11) or under regulations promulgated under Title IV or Title V of the Clean Air Act for the permitting of affected sources under the acid rain program.

(3) [Reserved]

(4) The Department shall promptly provide notice to the applicant of whether the application is complete. Unless the Department requests additional information or otherwise notifies the applicant of incompleteness within 60 days of receipt of an application, the application shall be deemed complete. For modifications processed through minor permit modification procedures, such as those in Section 70.7(e)(2) and (3)(e)(2) and (3), the Department will not require a completeness determination.

(5) The Department shall provide a statement that sets forth the legal and factual basis for the draft permit conditions (including references to the applicable statutory or regulatory provisions). The Department shall send this statement to EPA and to any other person who requests it.

(6) The submittal of a complete application shall not affect the requirement that any source have a preconstruction permit under Title I of the Act.

(b) Requirement for a permit. No Part 70 source may operate after the time that it is required to submit a timely and complete application, except in compliance with a permit issued under a Part 70 program. If a Part 70 source submits a timely and complete application for permit issuance (including for renewal), the source's failure to have a Part 70 permit is not a violation of this Part until the Department takes final action on the permit application, except as noted in this Section . This protection shall cease to apply if, subsequent to the completeness determination made pursuant to paragraph Section 70.7(a)(4)(a)(4), and as required by Section 70.5(a)(2)(a)(2), the applicant fails to submit by the deadline specified in writing by the Department any additional information identified as being needed to process the application. Exceptions to this Section are provided in Section 70.7(e)(5)(i)(e)(5)(i) and Section 70.7(e)(2)(v) and (3)(v)(e)(2)(v) and (3)(v).

(c) Permit renewal and expiration.

(1) Renewal and expiration of permits

(i) Permits being renewed are subject to the same procedural requirements, including those for public participation, affected State and EPA review, that apply to initial permit issuance; and

(ii) Permit expiration terminates the source's right to operate unless a timely and complete renewal application has been submitted consistent with Section 70.5(a)(1)(iii)(a)(1)(iii), Section 70.5(a)(2)(iv)(a)(2)(iv), and Section 70.7(b)(b). In this case, the permit shall not expire until the renewal permit has been issued or denied. All the terms and conditions of the permit including any permit shield that may be granted pursuant to Section 70.6(f)(f) shall remain in effect until the renewal permit has been issued or denied.

(2) [Reserved]

(d) Administrative permit amendments.

(1) An "administrative permit amendment" is a permit revision that:

(i) Corrects typographical errors;

(ii) Identifies a change in the name, address, or phone number of any person identified in the permit, or provides a similar minor administrative change at the source;

(iii) Requires more frequent monitoring or reporting by the permittee;

(iv) Allows for a change in ownership or operational control of a source 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;

(v) Incorporates into the Part 70 permit the requirements from preconstruction review permits authorized under an EPA-approved program, provided that such a program meets procedural requirements substantially equivalent to the requirements of Section s70.7 and 70.8 that would be applicable to the change if it were subject to review as a permit modification, and compliance requirements substantially equivalent to those contained in Section 70.6; or

(vi) Incorporates any other type of change which the Administrator has determined as part of the approved Part 70 program to be similar to those in Section 70.7(d)(1)(i) through (iv)(d)(1)(i) through (iv).

(2) Administrative permit amendments for purposes of the acid rain portion of the permit shall be governed by regulations promulgated under Title IV of the Act.

(3) An administrative permit amendment may be made by the Department consistent with the following:

(i) The Department shall take no more than 60 days from receipt of a request for an administrative permit amendment to take final action on such request, and may incorporate such changes without providing notice to the public or affected States provided that it designates any such permit revisions as having been made pursuant to this paragraph.

(ii) The Department shall submit a copy of the revised permit to the Administrator.

(iii) The source may implement the changes addressed in the request for an administrative amendment immediately upon submittal of the request, except transfer/ownership which must comply with Regulation Regulation Regulation 61-62.1 Section II. M.

(4) The Department may, upon taking final action granting a request for an administrative permit amendment, allow coverage by the permit shield in Section 70.6(f) for administrative permit amendments made pursuant to Section 70.7(d)(1)(v) which meet the relevant requirements of Section s70.6(f), 70.7, and 70.8 for significant permit modifications.

(e) Permit modification. A permit modification is any revision to a Part 70 permit that cannot be accomplished under the program's provisions for administrative permit amendments under Section 70.7(d)(d). A permit modification for purposes of the acid rain portion of the permit shall be governed by regulations promulgated under Title IV of the Act.

(1) Program description.

[Reserved]

(2) Minor permit modification procedures.

(i) Criteria.

(A) Minor permit modification procedures may be used only for those permit modifications that:

(1) Do not violate any applicable requirement;

(2) Do not involve significant changes to existing monitoring, reporting, or recordkeeping requirements in the permit;

(3) Do 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;

(4) Do not seek to establish or change a permit term or condition for which there is no corresponding underlying applicable requirement and that the source has assumed to avoid an applicable requirement to which the source would otherwise be subject. Such terms and conditions include:

(A) A federally enforceable emissions cap assumed to avoid classification as a modification under any provision of Title I of the Act; and

(B) An alternative emissions limit approved pursuant to regulations promulgated under Section 112(i)(5)(i)(5) of the Act;

(5) Are not modifications under any provision of title I of the Act; and

(6) Are not required by the Department to be processed as a significant modification.

(B) Notwithstanding Section s 70.7(e)(2)(i)(A) and (e)(3)(i), minor permit modification procedures may be used for permit modifications involving the use of economic incentives, marketable permits, emissions trading, and other similar approaches, to the extent that such minor permit modification procedures are explicitly provided for in the South Carolina State Implementation Plan or in applicable requirements promulgated by EPA.

(ii) Application. An application requesting the use of minor permit modification procedures shall meet the requirements of Section 70.5(c)(c) and 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 source's suggested draft permit;

(C) Certification by a responsible official, consistent with Section 70.5(d), 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 Administrator and affected States as required under Section 70.8.

(iii) Within five working days of receipt of a complete permit modification application, the Department shall meet its obligation under Section s70.8(a)(1) and (b)(1)(a)(1) and (b)(1) to notify the Administrator and affected States of the requested permit modification. The Department promptly shall send any notice required under Section 70.8(b)(2)(b)(2) to the Administrator.

(iv) Within 90 days of the Department's receipt of an application under minor permit modification procedures or 15 days after the end of the Administrator's 45-day review period under Section 70.8(c)(c), whichever is later, the Department shall:

(A) Issue the permit modification as proposed;

(B) Deny the permit modification application;

(C) Determine that the requested modification does not meet the minor permit modification criteria and should be reviewed under the significant modification procedures; or

(D) Revise the draft permit modification and transmit to the Administrator the new proposed permit modification as required by Section 70.8(a)(a).

(v) The Department may allow the source to make the change proposed in its minor permit modification application immediately after it files such application. After the source makes the change allowed by the preceding sentence, and until the Department takes any of the actions specified in Section 70.7(e)(2)(iv) (A) through (C)(e)(2)(iv) (A) through (C) above, the source must comply with both the applicable requirements governing the change and the proposed permit terms and conditions. During this time period, the source need not comply with the existing permit terms and conditions it seeks to modify. However, if the source fails to comply with its proposed permit terms and conditions during this time period, the existing permit terms and conditions it seeks to modify may be enforced against it.

(vi) The permit shield under Section 70.6(f)(f) may not extend to minor permit modifications.

(3) Group processing of minor permit modifications. Consistent with this paragraph, the Department may modify the procedure outlined in Section 70.7(e)(2)(e)(2) to process groups of a source's applications for certain modifications eligible for minor permit modification processing.

(i) Criteria. Group processing of modifications may be used only for those permit modifications:

(A) That meet the criteria for minor permit modification procedures under Section 70.7(e)(2)(i)(A)(e)(2)(i)(A); and

(B) That collectively are below the threshold level approved by the Administrator as part of the Department's approved program. This threshold shall be 10 percent of the emissions allowed by the permit for the emissions unit for which the change is requested, 20 percent of the applicable definition of major source in Section 70.2, or 5 tpy, whichever is least.

(ii) Application. An application requesting the use of group processing procedures shall meet the requirements of Section 70.5(c)(c) and 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 source's suggested draft permit.

(C) Certification by a responsible official, consistent with Section 70.5(d)(d), that the proposed modification meets the criteria for use of group processing procedures and a request that such procedures be used.

(D) A list of the source's other pending applications awaiting group processing, and a determination of whether the requested modification, aggregated with these other applications, equals or exceeds the threshold set under Section 70.7(e)(3)(i)(B)(e)(3)(i)(B).

(E) Certification, consistent with Section 70.5(d)(d), that the source has notified EPA of the proposed modification. Such notification need only contain a brief description of the requested modification.

(F) Completed forms for the Department to use to notify the Administrator and affected States as required under Section 70.8.

(iii) On a quarterly basis or within 5 business days of receipt of an application demonstrating that the aggregate of a source's pending applications equals or exceeds the threshold level set under Section 70.7(e)(3)(i)(B)(e)(3)(i)(B) of this Section , whichever is earlier, the Department promptly shall meet its obligation under paragraphs (a)(1) and (b)(1) of Section 70.8 to notify the Administrator and affected States of the requested permit modifications. The Department shall send any notice required under Section 70.8(b)(2)(b)(2) to the Administrator.

(iv) The provisions of Section 70.7(e)(2)(iv)(e)(2)(iv) shall apply to modifications eligible for group processing, except that the Department shall take one of the actions specified in Section 70.7(e)(2)(iv)(A) through (D)(e)(2)(iv)(A) through (D) within 180 days of receipt of the application or 15 days after the end of the Administrator's 45-day review period under Section 70.8(c)(c), whichever is later.

(v) The Department may allow the source to make the changes proposed for group processing in its minor permit modification application immediately after it files such application. After the source makes the changes allowed by the preceding sentence, and until the Department takes any of the actions specified in Section 70.7(e)(2)(iv)(A) through (C)(e)(2)(iv)(A) through (C), the source must comply with both the applicable requirements governing the changes and the proposed permit terms and conditions. During this time period, the source need not comply with the existing permit terms and conditions it seeks to modify. However, if the source fails to comply with its proposed permit terms and conditions during this time period, the existing permit terms and conditions it seeks to modify may be enforced against it.

(vi) The permit shield under Section 70.6(f)(f) may not extend to minor permit modifications eligible for group processing.

(4) Significant modification procedures.

(i) Criteria. Significant modification procedures shall be used for applications requesting permit modifications that:

(A) Involve a significant change in existing monitoring permit terms or conditions, or constitute a relaxation of reporting or recordkeeping permit terms or conditions;

(B) 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 visibility or increment analysis;

(C) Seek to establish or change a permit term or condition for which there is no corresponding underlying applicable requirement and that the source has assumed to avoid an applicable requirement to which the source would otherwise be subject. Such terms and conditions include:

(1) A Federally enforceable emissions cap assumed to avoid classification as a modification under any provision of Title I;

(2) An alternative emissions limit approved pursuant to regulations promulgated under Section 112(i)(5)(i)(5) of the Act; and

(D) Are modifications under any provision of Title I of the Act, except those that qualify for processing as administrative permit amendments under Section 70.7(d)(d).

Nothing herein shall be construed to preclude the permittee, upon appropriate approval by the Department, from making changes consistent with this part that would render existing permit compliance terms and conditions irrelevant.

(ii) Significant permit modifications shall meet all requirements of this part, including those for applications, public participation, review by affected States, and review by EPA, as they apply to permit issuance and permit renewal. The Department shall complete review on the majority of significant permit modifications within 9 months after receipt of a complete application.

(5) Operational Flexibility. A permitted facility is authorized to make changes within their facility without requiring a permit revision, if the changes are not modifications under any provision of Title I of the Act and the changes do not exceed the emissions allowable under the permit (whether expressed therein as a rate of emissions or in terms of total emissions): Provided that the facility provides the Administrator and the Department with written notification as required below in advance of the proposed changes, which shall be a minimum of 7 days, unless the Department provides in its regulations a different time frame for emergencies. The source, Department, and EPA shall attach each such notice to their copy of the relevant permit. The following provisions implement this authorization:

(i) The permitted sources are allowed to make Section 502(b)(10)(b)(10) changes without requiring a permit revision, if the changes are not modifications under any provision of Title I of the Act and the changes do not exceed the emissions allowable under the permit (whether expressed therein as a rate of emissions or in terms of total emissions).

(A) For each such change, the written notification required above shall include a brief description of the change within the permitted facility, 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.

(B) The permit shield described in Section 70.6(f)(f) of this part shall not apply to any change made pursuant to Section 70.7(e)(5)(i)(e)(5)(i).

(ii) The Department may provide for permitted sources to trade increases and decreases in emissions in the permitted facility, where the South Carolina Implementation Plan provides for such emissions trades without requiring a permit revision and based on the 7-day notice prescribed in Section 70.7(e)(5)(e)(5). This provision is available in those cases where the permit does not already provide for such emissions trading.

(A) Under Section 70.7(e)(5)(ii), the written notification required above shall include such information as may be required by the provision in the South Carolina State Implementation Plan authorizing the emissions trade, including at a minimum, when the proposed change will occur, a description of each such change, any change in emissions, the permit requirements with which the source will comply using the emissions trading provisions of the South Carolina State Implementation Plan, and the pollutants emitted subject to the emissions trade. The notice shall also refer to the provisions with which the source will comply in the South Carolina State Implementation Plan and that provide for the emissions trade.

(B) The permit shield described in Section 70.6(f) of this part shall not extend to any change made under Section 70.7(e)(5)(ii). Compliance with the permit requirements that the source will meet using the emissions trade shall be determined according to requirements of the South Carolina State Implementation Plan authorizing the emissions trade.

(iii) The Department shall, if a permit applicant requests it, issue permits that contain terms and conditions, including all terms required under Section s70.6(a) and (c)(a) and (c) to determine compliance, 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 ensure the emissions trades are quantifiable and enforceable. The Department shall not be required to include in the emissions trading provisions any emissions units for which emissions are not quantifiable or for which there are no replicable procedures to enforce the emissions trades. The permit shall also require compliance with all applicable requirements.

(A) Under Section 70.7(e)(5)(iii)(e)(5)(iii), 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.

(B) The permit shield described in Section 70.6(f)(f) of this part may extend to terms and conditions that allow such increases and decreases in emissions.

(6) Off-Permit Changes. Except as provided in Section 70.7(e)(6)(v)(e)(6)(v) below, a facility is allowed to make changes that are not addressed or prohibited by the permit without a permit revision. The provisions under this Section do not excuse any facility from the preconstruction permitting requirements under South Carolina Regulation No. 61-62.1. Any such change shall be subject to the following requirements and restrictions:

(i) Each such change shall meet all applicable requirements and shall not violate any existing permit term or condition.

(ii) Sources must provide contemporaneous written notice to the Department and EPA of each such change, except for changes that qualify as insignificant under Section 70.5(c)(c). Such written notice shall describe each such change, including the date, any change in emissions, pollutants emitted, and any applicable requirement that would apply as a result of the change.

(iii) The change shall not qualify for the shield under Section 70.6(f)(f).

(iv) The permittee shall keep a record describing changes made at the source that result in emissions of a regulated air pollutant subject to an applicable requirement, but not otherwise regulated under the permit, and the emissions resulting from those changes.

(v) No permittee shall make, without a permit revision, a change that is not addressed or prohibited by the facility's Part 70 permit, if such a change is subject to any requirements under Title IV of the Act or is a modification under any provision of Title I of the Act.

(f) Reopening for cause.

(1) Each issued permit shall include provisions specifying the conditions under which the permit will be reopened prior to the expiration of the permit. A permit shall be reopened and revised under any of the following circumstances:

(i) Additional applicable requirements under the Act become applicable to a major Part 70 source with a remaining permit term of 3 or more years. Such a reopening shall be completed not later than 18 months after promulgation of the applicable 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 Section 70.7(c)(1)(ii)(c)(1)(ii).

(ii) Additional requirements (including excess emissions requirements) become applicable to an affected source under the acid rain program. Upon approval by the Administrator, excess emissions offset plans shall be deemed to be incorporated into the permit.

(iii) The Department or EPA determines that the permit contains a material mistake or that inaccurate statements were made in establishing the emissions standards or other terms or conditions of the permit.

(iv) The Administrator or the Department determines that the permit must be revised or revoked to assure compliance with the applicable requirements.

(2) 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 permit for which cause to reopen exists. Such reopening shall be made as expeditiously as practicable.

(3) Reopenings under Section 70.7(f)(1)(f)(1) shall not be initiated before a notice of such intent is provided to the Part 70 source 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.

(g) Reopenings for cause by EPA.

(1) If the Administrator finds that cause exists to terminate, modify, or revoke and reissue a permit pursuant to Section 70.7(f)(f), the Administrator will notify the Department and the permittee of such finding in writing.

(2) The Department shall, within 90 days after receipt of such notification, forward to EPA a proposed determination of termination, modification, or revocation and reissuance, as appropriate. The Administrator may extend this 90-day period for an additional 90 days if he finds that a new or revised permit application is necessary or that the Department must require the permittee to submit additional information.

(3) The Administrator will review the proposed determination from the Department within 90 days of receipt.

(4) The Department shall have 90 days from receipt of an EPA objection to resolve any objection that EPA makes and to terminate, modify, or revoke and reissue the permit in accordance with the Administrator's objection.

(5) If the Department fails to submit a proposed determination pursuant to Section 70.7(g)(4)(g)(70.7(g)(2)) or fails to resolve any objection pursuant to Section 70.7(g)(2)(g)(4), the Administrator will terminate, modify, or revoke and reissue the permit after taking the following actions:

(i) Providing at least 30 days' notice to the permittee in writing of the reasons for any such action. This notice may be given during the procedures in Section 70.7(g)(1) through (4)(g)(1) through (4).

(ii) Providing the permittee an opportunity for comment on the Administrator's proposed action and an opportunity for a hearing.

(h) Public participation. Except for modifications qualifying for minor permit modification procedures, all permit proceedings, including initial permit issuance, significant modifications, and renewals, shall provide adequate procedures for public notice including offering an opportunity for public comment and a hearing on the draft permit. These procedures shall include the following:

(1) Notice shall be given by posting the notice and the draft permit, for the duration of the public comment period, on a public website identified by the Department, as the consistent noticing method. This consistent noticing method shall be used for all draft permits subject to notice under this paragraph. In addition, notice shall be given to persons on a mailing list developed by the Department using generally accepted methods (e.g., hyperlink sign-up function or radio button on an agency website, sign-up sheet at a public hearing, etc.) that enable interested parties to subscribe to the 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. The Department may use additional means to provide adequate notice to the affected public, including by publishing the notice in a newspaper of general circulation in the area where the source is located (or in a State publication designed to give general public notice);

(2) The notice shall identify the affected facility; the name and address of the permittee; the name and address of the Department; the activity or activities involved in the permit action; the emissions change involved in any permit modification; 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 permit draft, the statement required by Section 70.7(a)(5) (sometimes referred to as the 'statement of basis'), the application, all relevant supporting materials, including any permit application, statement of basis, compliance plan, permit, and monitoring and compliance certification report pursuant to Section 503(e) of the Act, except for information entitled to confidential treatment pursuant to Section 114(c) of the Act (the contents of a Part 70 permit shall not be entitled to protection under Section 114(c) of the Act), and all other materials available to the Department (except for publicly-available materials and publications) that are relevant to the permit decision; a brief description of the comment procedures required by this part; 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);

(3) The Department shall provide such notice and opportunity for participation by affected States as is provided for by Section 70.8;

(4) The Department shall provide at least 30 days for public comment and shall give notice of any public hearing at least 30 days in advance of the hearing.

(5) The Department shall keep a record of the commenters and also of the issues raised during the public participation process as well as records of the written comments submitted during that process, so that the Administrator may fulfill his obligation under Section 505(b)(2) of the Act to determine whether a citizen petition may be granted, and such records shall be available to the public.

(6) The Department must respond in writing to all significant comments raised during the public participation process, including any such written comments submitted during the public comment period and any such comments raised during any public hearing on the permit.

S.C. Code Regs. § 61-62.70.7

Amended by State Register Volume 36, Issue No. 3, eff March 23, 2012 (errata); State Register Volume 36, Issue No. 9, eff September 28, 2012 (errata); State Register Volume 37, Issue No. 4, eff April 26, 2013; State Register Volume 41, Issue No. 08, eff. 8/25/2017; State Register Volume 44, Issue No. 04, eff. 4/24/2020; State Register Volume 45, Issue No. 11, eff. 11/26/2021.