Non-attainment provisions - conditions for approval.

(A) Conditions for a construction permit approval. If the DNER finds that a new major stationary source or major modification at an existing major stationary source for which a construction permit application has been submitted would be constructed in an area designated in 40 CFR 81.355 as non-attainment for an air pollutant for which the major stationary source or major modification is major, approval may be granted only if the following conditions are met: Page 51 (1) Lowest achievable emission rate (LAER). A new major stationary source or major modification at an existing major stationary source is required to meet an emission limitation that specifies the LAER for such stationary source. Any permits issued without an enforceable numerical emission standard must contain enforceable conditions to ensure that the design characteristics or equipment will be properly maintained, or that the operational conditions will be properly performed, so as to continuously achieve the assumed degree of control. LAER is required only for those non-attainment air pollutants for which the new major stationary source emits equal or greater than the major new source threshold for the non-attainment pollutant or an existing major source for the non-attainment pollutant has a major modification that equals or exceeds the significant emission rate for that non-attainment pollutant, although the DNER may choose to require LAER for air pollutants that do not exceed these values. The new emission limitations for the new stationary source as well as any existing stationary sources affected must be federally enforceable. (2) Compliance certification. The applicant shall certify that all existing major stationary sources owned or operated by the applicant, or any entity controlling, controlled by, or under common control with the applicant, in Puerto Rico as the proposed major stationary source or major modification are in compliance with all applicable emission limitations and standards under the Clean Air Act, or are in compliance with an expeditious schedule which is federally enforceable or contained in a court decree. (3) Emission offsets. (a) Emission reductions (offsets) from existing air contaminant sources in the area of the proposed major stationary source, whether or not under the same ownership, are required such that there will be reasonable progress, as determined by the DNER, toward attainment of the applicable national ambient air quality standard. (b) Reserved (c) Emission offsets must meet the baseline limitations of Rule 210D of the RCAP, the location limitations of Rule 210E of the RCAP, and the offset ratio limitations of Rule 210F of the RCAP. (d) Emission offsets are required only for those non-attainment air pollutants for which the new major stationary source is major and for major modifications at existing major sources for which the increased non-attainment emissions equal or exceed the significant emission rates. (e) The total tonnage of increased emissions, in tons per year, resulting from a major modification that must be offset in accordance with Section 173 of the Clean Air Act shall be determined by summing the difference between the allowable emissions after the major modification and the actual emissions before the modification for each emissions unit. (4) Net air quality benefit. The emission offsets must provide a positive net air quality benefit in the affected area pursuant to Rule 210E of the RCAP. Atmospheric dispersion modeling is not necessary for VOCs and nitrogen oxides in ozone non-attainment areas. Instead, complying with the requirements of Page 52 paragraphs (A)(1) to (A)(3) of this Rule and Rule 210E of the RCAP will be considered adequate to meet this condition. (5) Reasonable further progress. Construction permits may be issued if the DNER determines that, by the time the source is to commence operation, sufficient offsetting emissions reductions have been obtained, such that total allowable emissions from existing sources in the applicable non-attainment areas, from new or modified sources which are not major emitting facilities, and from the proposed source will be sufficiently less than the total emissions from existing sources prior to the application for such permit to construct or modify so as to represent reasonable further progress as defined in Section 171 of the Clean Air Act. (B) Exemptions from certain conditions. (1) Fuel switch exemption. The DNER may exempt the following major stationary sources or major modifications from the limitation required under Rule 210C of the RCAP or the emission offsets required under paragraphs (A)(3) and (A)(4) of this Rule: (1) Major stationary sources that must switch fuels due to lack of adequate fuel supplies or where a major stationary source is required to be modified as a result of new United States Environmental Protection Agency regulations and no exemption from such regulation is available to the major stationary source. Such exemptions may be granted only if the following applies: (a) The applicant demonstrates that it made its best efforts to obtain sufficient emission offsets and that such efforts were unsuccessful. (b) The applicant has secured all available emission offsets; and (c) The applicant will continue to seek the necessary emission offsets and apply them when they become available. (2) Temporary stationary sources/portable facilities/construction emissions: The DNER may exempt the following major stationary sources or major modifications from the emission offsets required under paragraphs (A)(3) and (A)(4) of this Rule: (a) Portable facilities that will be relocated outside of the non-attainment area after no more than 90 days. (b) Emissions generated from the construction phase of a new major stationary source. Page 53