CSR 45-30-5. Permit Content

§45-30-5. Permit Content. 5.1. Standard permit requirements. Each Title V operating permit issued under this legislative rule shall include all applicable requirements that apply to the source at the time of permit issuance and the following elements: 5.1.a. Emission limitations and standards, including those operational requirements and limitations that assure compliance with all applicable requirements at the time of permit issuance. 5.1.a.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. 5.1.a.2. The permit shall state that, where applicable requirements of the Clean Air Act are more stringent than any applicable requirement of regulations promulgated under Title IV of the Clean Air Act (Acid Deposition Control), both provisions shall be incorporated into the permit and shall be enforceable by the Secretary and U.S. EPA. 5.1.a.3. If the rules promulgated by the Secretary pursuant to provisions of Title I of the Clean Air Act and contained in the State Implementation Plan allow a determination of an alternative equivalent emission limit at a source to be made in the permit issuance, renewal, or significant modification process, any permit containing such equivalency determination shall contain provisions to ensure that any resulting emissions limit has been demonstrated to be quantifiable, accountable, enforceable, and based on replicable procedures. 5.1.b. Permit duration. The Secretary shall issue permits for a fixed term of five (5) years for all sources regulated pursuant to this rule. 5.1.c. Monitoring and related recordkeeping and reporting requirements: 5.1.c.1. Each permit shall contain the following requirements with respect to monitoring: 5.1.c.1.A. All emissions monitoring and analysis procedures or test methods required under the applicable requirements, including any procedures and methods promulgated pursuant to §504(b) or §114(a)(3) of the Clean Air Act; 5.1.c.1.B. Where the 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 periods that are representative of the source's compliance with the permit, as reported pursuant to 5.1.c.3 of this section. 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 (5.1.c.1); and 5.1.c.1.C. As necessary, requirements concerning the use, maintenance, and, where appropriate, installation of monitoring equipment or methods. 5.1.c.2. With respect to recordkeeping, the permit shall incorporate all applicable recordkeeping requirements and require the following: 5.1.c.2.A. Records of monitoring information that include the following: 5.1.c.2.A.1. The date, place as defined in the permit, and time of sampling or measurements. 5.1.c.2.A.2. The date(s) analyses were performed. 5.1.c.2.A.3. The company or entity that performed the analyses. 5.1.c.2.A.4. The analytical techniques or methods used. 5.1.c.2.A.5. The results of such analyses. 5.1.c.2.A.6. The operating conditions existing at the time of sampling or measurement. 5.1.c.2.B. Retention of records of all required monitoring data and support information for a period of at least five (5) years from the date of monitoring sample, measurement, report, or application. Support information includes all calibration and maintenance records and all original strip-chart recordings for continuous monitoring instrumentation, and copies of all reports required by the permit. Where appropriate, the permit may allow records to be maintained in computerized form in lieu of the above records. 5.1.c.3. With respect to reporting, the permit shall incorporate all applicable reporting requirements and require the following: 5.1.c.3.A. Submittal of reports of any required monitoring at least every six (6) months, but no more often than once per month. All instances of deviations from permit requirements must be clearly identified in such reports. All required reports must be certified by a responsible official consistent with paragraph 4.4 of this rule. To the extent practicable, the schedule for submission of such reports shall be timed to coincide with other periodic reports required by the permit, including the permittees' compliance certifications. 5.1.c.3.B. Reporting of deviations from permit requirements, including those attributable to upset conditions as defined in the permit, the probable cause of such deviations, and any corrective actions or preventive measures taken in accordance with any rules of the Secretary. 5.1.c.3.C. In addition to monitoring reports required by the permit, supplemental reports and notices are deemed to be prompt if submitted in the following fashion: 5.1.c.3.C.1. Any deviation resulting from an emergency or upset condition, as defined in subsection 5.7, shall be reported by telephone or telefax within one (1) working day of the date on which the permittee becomes aware of the deviation, if the permittee desires to assert the affirmative defense authorized by subsection 5.7. A written report of such deviation, which shall include the probable cause of such deviations, and any corrective actions or preventive measures taken, shall be submitted and certified by a responsible official within ten (10) days of the deviation. 5.1.c.3.C.2. Any deviation that poses an imminent and substantial danger to public health, safety, or the environment shall be reported to the Secretary immediately by telephone or telefax. A written report of such deviation, which shall include the probable cause of such deviation, and any corrective actions or preventive measures taken, shall be submitted by a responsible official within ten (10) days of the deviation. 5.1.c.3.C.3. Any other deviation that is identified in the permit as requiring more frequent reporting than the permittee's reports of required monitoring shall be reported on the schedule specified in the permit. 5.1.c.3.C.4. All reports of deviations shall identify the probable cause of the deviation and any corrective actions or preventative measures taken. 5.1.c.3.D. Every report submitted under this subsection shall be certified by a responsible official. 5.1.c.3.E. A permittee may request confidential treatment for information submitted under this subsection pursuant to the limitations and procedures of W. Va. Code 22-5-10 and 45CSR31. 5.1.d. A permit condition prohibiting emissions exceeding any allowances that the source lawfully holds under Title IV of the Clean Air Act (Acid Deposition Control) or rules of the Secretary promulgated thereunder. 5.1.d.1. No permit revision shall be required for increases in emissions that are authorized by allowances acquired pursuant to the acid deposition control program, provided that such increases do not require a permit revision under any other applicable requirement. 5.1.d.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. 5.1.d.3. Any such allowance shall be accounted for according to the procedures established in rules promulgated under Title IV of the Clean Air Act. 5.1.e. A severability clause to ensure the continued validity of the various permit requirements in the event of a challenge to any portion of the permit. 5.1.f. Provisions stating the following: 5.1.f.1. Duty to comply. The permittee must comply with all conditions of the Title V operating permit. Any permit noncompliance constitutes a violation of the Code of West Virginia and Clean Air Act and is grounds for enforcement action by the Secretary or U.S. EPA; for permit termination, revocation and reissuance, or modification; or for denial of a permit renewal application. 5.1.f.2. Need to halt or reduce activity not a defense. 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 the permit. However, nothing in this paragraph shall be construed as precluding consideration of a need to halt or reduce activity as a mitigating factor in determining penalties for noncompliance if the health, safety, or environmental impacts of halting or reducing operations would be more serious than the impacts of continued operations. 5.1.f.3. Permit actions. The permit may be modified, revoked, reopened and reissued, or terminated for cause. The filing of a request by the permittee for a permit modification, revocation and reissuance, or termination, or of a notification of planned changes or anticipated noncompliance does not stay any permit condition. 5.1.f.4. Property rights. The permit does not convey any property rights of any sort, nor any exclusive privilege. 5.1.f.5. Duty to provide information. The permittee shall furnish to the Secretary, within a reasonable time, any information that the Secretary may request in writing to determine whether cause exists for modifying, revoking and reissuing, or terminating the permit or to determine compliance with the permit. Upon request, the permittee shall furnish to the Secretary copies of records required to be kept by the permit. For information claimed to be confidential, the permittee shall furnish such records to the Secretary and directly to U.S. EPA along with their claim of confidentiality. 5.1.g. Fees. A provision to ensure that a source pays fees to the permitting agency consistent with section eight of this rule. 5.1.h. Emissions trading. A provision stating 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 and that are in accordance with all applicable requirements. 5.1.i. Terms and conditions for reasonably anticipated operating scenarios identified by the source in its application and which are approved by the Secretary. Such terms and conditions: 5.1.i.1. Shall require the source, contemporaneously with making a change from one operating scenario to another, to record in a log at the permitted facility a record of the scenario under which it is operating and to document the change in reports submitted pursuant to the terms of the permit and this rule. 5.1.i.2. Shall extend the permit shield described in subsection 5.6 of this section to all terms and conditions under each such operating scenario; and 5.1.i.3. Shall ensure that the terms and conditions of each such alternative scenario meet all applicable requirements and the requirements of this rule. 5.1.j. Terms and conditions, if the permit applicant requests them, for the trading of emissions increases and decreases in the permitted facility, to the extent that the applicable requirements provide for trading such increases and decreases without a case-by-case approval of each emissions trade. Such terms and conditions: 5.1.j.1. Shall include all terms required under subsection 5.1 and 5.3 of this to determine compliance; 5.1.j.2. Shall extend the permit shield described in subsection 5.6 to all terms and conditions that allow such increases and decreases in emissions; and 5.1.j.3. Shall meet all applicable requirements and requirements of this rule. 5.2. Federally-enforceable requirements. 5.2.a. All terms and conditions in a permit issued pursuant to this rule, including any provisions designed to limit a source's potential to emit and excepting those provisions that are specifically designated in the permit as "State-enforceable only", are enforceable by the Secretary, U.S. EPA, and citizens under the Clean Air Act. 5.2.b. Notwithstanding paragraph 5.2.a, the Secretary shall specifically designate as not being federally enforceable under the Clean Air Act any terms and conditions included in the permit that are not required under the Clean Air Act nor under any of its applicable requirements. Terms and conditions of permits issued under this rule which are state enforceable only are not subject to the requirements of section seven nor shall they be subject to objection, requests for permit reopening, or enforcement by U.S. EPA. Permit revisions and reopenings for state only requirements shall be accomplished by using the procedures of section six of this rule, except that such revisions are not subject to U.S. EPA or affected state review. 5.3. Compliance requirements. All Title V operating permits shall contain the following elements with respect to compliance: 5.3.a. Consistent with paragraph 5.1.c of this section: 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 Title V operating permit shall contain a certification by a responsible official that meets the requirements of subsection 4.4 of this rule. 5.3.b. Inspection and entry requirements that require that, upon presentation of credentials and other documents as may be required by law, the permittee shall allow the Secretary or an authorized designee of the Secretary to perform the following: 5.3.b.1. At all reasonable times (including all times in which the facility is in operation) enter upon the permittee's premises where a source is located or emissions related activity is conducted, or where records must be kept under the conditions of the permit; 5.3.b.2. Have access to and copy, at reasonable times, any records that must be kept under the conditions of the permit; 5.3.b.3. Inspect at reasonable times (including all times in which the facility is in operation) any facilities, equipment (including monitoring and air pollution control equipment), practices, or operations regulated or required under the permit; and 5.3.b.4. Sample or monitor at reasonable times substances or parameters to determine compliance with the permit or applicable requirements or ascertain the amounts and types of pollutants discharged. 5.3.c. A schedule of compliance consistent with paragraph 4.3.h of this rule. 5.3.d. Progress reports consistent with an applicable schedule of compliance and paragraph 4.3.h of this rule to be submitted at least semiannually, or at a more frequent period if specified in the applicable requirement or by the Secretary. Such progress reports shall contain the following: 5.3.d.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 5.3.d.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. 5.3.e. Requirements for compliance certification with terms and conditions contained in the permit, including emission limitations, standards, or work practices. Permits shall include each of the following: 5.3.e.1. The frequency (not less than annually or a more frequent period as specified in the applicable requirement or by the Secretary) of submissions of compliance certifications; 5.3.e.2. In accordance with paragraph 5.1.c, a means for assessing or monitoring the compliance of the source with its emissions limitations, standards, and work practices; 5.3.e.3. A requirement that the compliance certification include the following: 5.3.e.3.A. The identification of each term or condition of the permit that is the basis of the certification; 5.3.e.3.B. The permittee's compliance status as shown by test or monitoring data, records, and other information reasonably available to the permittee; 5.3.e.3.C. Whether compliance was continuous or intermittent; 5.3.e.3.D. The method(s) used for determining the compliance status of the source, currently and over the reporting period consistent with section 5.1 of this rule; and 5.3.e.3.E. Such other facts as the Secretary may require to determine the compliance status of the source; 5.3.e.4. A requirement that all compliance certifications be submitted to U.S. EPA as well as to the Secretary; and 5.3.f. Such other provisions as the Secretary may require to determine the compliance status of the source. 5.4. General permits. 5.4.a. The Secretary may, after notice and opportunity for public participation as contained in section six of this rule, issue a general permit covering numerous similar sources. Any general permit shall comply with all requirements applicable to other Title V operating permits and shall identify criteria by which sources may qualify for the general permit. To sources that qualify, the Secretary shall grant the conditions and terms of the general permit. Notwithstanding the shield provisions of subsection 5.6 of this section, the source shall be subject to enforcement action for operation without a Title V operating permit if the source is later determined not to qualify for the conditions and terms of the general permit. General permits shall not be authorized for affected sources under Title IV of the Clean Air Act (Acid Deposition Control) unless otherwise provided in rules promulgated by the Secretary in accordance with that Title IV of the Clean Air Act. 5.4.b. A general permit may be issued for the following purposes: 5.4.b.1. To establish terms and conditions to implement applicable requirements for a source category; 5.4.b.2. To establish terms and conditions to implement applicable requirements for specified categories of changes to permitted sources; 5.4.b.3. To establish terms and conditions for new requirements that apply to sources with existing permits; and 5.4.b.4. To establish enforceable caps on emissions from sources in a specified category. 5.4.c. Sources that would qualify for a general permit must apply to the Secretary for coverage under the terms of the general permit or must apply for a Title V operating permit consistent with section four of this rule. The Secretary may, in the general permit, provide for applications which deviate from the requirements of section four, provided that such applications meet the requirements of Title V of the Clean Air Act, and include all information necessary to determine qualification for, and to assure compliance with, the general permit. The Secretary may grant a request for a source to operate under a general permit without repeating the public participation procedures as required by subsection 6.8, and such grant shall not be a final permit action for judicial review. 5.4.d. The Secretary shall act within ninety (90) days to approve or deny a request to be covered under a general permit. 5.4.e. A source may apply for coverage under a general permit for some emissions units or activities even if the source must file a source-specific permit application for other emissions units or activities. In the event that both a general permit and a source-specific permit are granted to the same source, the source-specific permit shall incorporate the applicable general permit(s). 5.4.e.1. In the event that a source is issued a general permit for one or more emissions units at a source, any subsequent application for a source-specific permit shall include the source subject to the general permit. The incorporation of the general permit into the source-specific application shall subject the general permit source to all procedures and processes, including public comment, to which the entire application and permit process are subject. The terms and duration of any general permit incorporated under a source-specific permit shall be void upon the issuance of such source-specific permit and the terms and duration of such source-specific permit shall then control. 5.4.e.2. In the event that a source obtains a general permit subsequent to the issuance of a source-specific permit, such general permit shall be applicable only for the remainder of the term of the source-specific permit. The general permit source shall be included in the renewal application for the source specific permit and subject to all procedures and processes, including public comment, to which the renewal is subject. 5.5. Temporary sources. The Secretary 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. Temporary sources must comply with preconstruction review requirements under 45CSR13, 45CSR14, 45CSR15, and 45CSR19. No affected source shall be permitted as a temporary source. Permits for temporary sources shall include provisions that will assure compliance with all applicable requirements at all authorized locations. The owner or operator shall notify the Secretary at least ten (10) days in advance of each change in location. 5.6. Permit shield. 5.6.a. Except as otherwise provided in this rule, the Secretary shall include in a Title V operating permit a provision stating that compliance with the conditions of the permit shall be deemed compliance with any applicable requirements as of the date of permit issuance, provided that: 5.6.a.1. Such applicable requirements are included and are specifically identified in the permit; or 5.6.a.2. The Secretary, in acting on the permit application or revision, determines in writing that other requirements specifically identified are not applicable to the source, and the permit includes such a determination or a concise summary thereof. 5.6.b. A Title V operating permit that does not expressly state that a permit shield exists shall be presumed not to provide such a shield. 5.6.c. Nothing in this subsection or in any Title V operating permit shall alter or affect the following: 5.6.c.1. 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; or 5.6.c.2. The applicable requirements of the Code of West Virginia and Title IV of the Clean Air Act (Acid Deposition Control), consistent with §408(a) of the Clean Air Act. 5.6.c.3. The authority of the Administrator of U.S. EPA to require information under §114 of the Clean Air Act or to issue emergency orders under § 303 of the Clean Air Act. 5.7. Emergency provision. 5.7.a. Definition. An "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. An emergency shall not include noncompliance to the extent caused by improperly designed equipment, lack of preventative maintenance, careless or improper operation, or operator error. 5.7.b. Effect of any emergency. An emergency constitutes an affirmative defense to an action brought for noncompliance with such technology-based emission limitations if the conditions of paragraph 5.7.c of this subsection are met. 5.7.c. The affirmative defense of emergency shall be demonstrated through properly signed, contemporaneous operating logs, or other relevant evidence that: 5.7.c.1. An emergency occurred and that the permittee can identify the cause(s) of the emergency; 5.7.c.2. The permitted facility was at the time being properly operated; 5.7.c.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 5.7.c.4. Subject to the requirements of part 5.1.c.3.C.1, the permittee submitted notice of the emergency to the Secretary within one (1) working day of the time when emission limitations were exceeded due to the emergency and made a request for variance, and as applicable rules provide. This notice, report, and variance request fulfills the requirement of subparagraph 5.1.c.3.B of this rule. This notice must contain a detailed description of the emergency, any steps taken to mitigate emissions, and corrective actions taken. 5.7.d. In any enforcement proceeding, the permittee seeking to establish the occurrence of an emergency has the burden of proof. 5.7.e. This provision is in addition to any emergency or upset provision contained in any applicable requirement. 5.8. Operational flexibility. Each permit issued under this rule shall provide that a permittee may make changes within the facility, as provided by §502(b)(10) of the Clean Air Act. Such operational flexibility shall be provided in the permit in conformance with the permit application and applicable requirements. No such changes shall be a modification under any rule any provision of Title I of the Clean Air Act (including 45CSR14 and 45CSR19) promulgated by the Secretary in accordance with Title I of the Clean Air Act and the change shall not result in a level of emissions exceeding the emissions allowable under the permit. 5.8.a. Before making a change under this provision, the permittee shall provide advance written notice to the Secretary and to U.S. 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. The permittee shall thereafter maintain a copy of the notice with the permit, and the Secretary shall place a copy with the permit in the public file. The written notice shall be provided to the Secretary and U.S. EPA at least seven (7) days prior to the date that 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 (7) days notice is provided because of a need to respond more quickly to such unanticipated conditions, the permittee shall provide notice to the Secretary and U.S. EPA as soon as possible after learning of the need to make the change. 5.8.b. A permitted source may trade increases and decreases in emissions within the facility, where rules promulgated by the Secretary pursuant to provisions of Title I of the Clean Air Act and which are contained in the State Implementation Plan for West Virginia provide for such emissions trades without a permit modification. In such a case, the advance written notice provided by the permittee shall identify the applicable requirements allowing trading and shall state when the change will occur, the types and quantities of emissions to be traded, the permit terms or other applicable requirements with which the source will comply through emissions trading, and such other information as may be required by the Secretary. 5.8.c. The permit shield provided under subsection 5.6 shall not apply to changes made under this section except those provided for in paragraph 5.8.d. However, the protection of the permit shield will continue to apply to operations and emissions that are not affected by the change, provided that the permittee complies with the terms and conditions of the permit applicable to such operations and emissions. The permit shield may be reinstated for emissions and operations affected by the change: 5.8.c.1. If subsequent changes cause the facility's operations and emissions to revert to those authorized in the permit and the permittee resumes compliance with the terms and conditions of the permit, or 5.8.c.2. If the permittee obtains final approval of a significant modification to the permit to incorporate the change in the permit. 5.8.d. Upon the request of a permit applicant, the Secretary may 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, accountable, enforceable, and replicable, and comply with all applicable requirements and paragraph 5.1.j of this rule. The permit shield under subsection 5.6 shall apply to permit terms and conditions authorizing such increases and decreases in emissions. 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. 5.9. Off-permit changes. Except as provided in paragraph 5.9.e below, a facility may make any change in its operations or emissions that is not addressed nor prohibited in its permit and which is not considered to be construction nor modification under any rule promulgated by the Secretary without obtaining an amendment or modification of its permit. Such changes shall be subject to the following requirements and restrictions: 5.9.a. The change must meet all applicable requirements and may not violate any existing permit term or condition. 5.9.b. The permittee must provide a written notice of the change to the Secretary and to U.S. EPA within two (2) business days following the date of the change. 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. 5.9.c. The change shall not qualify for the permit shield. 5.9.d. The permittee shall keep records describing all changes made at the source that result in emissions of regulated air pollutants, but not otherwise regulated under the permit, and the emissions resulting from those changes. 5.9.e. No permittee may make any change subject to any requirement under Title IV of the Clean Air Act (Acid Deposition Control) pursuant to the provisions of this subsection. 5.9.f. No permittee may make any changes which would require preconstruction review under any provision of Title I of the Clean Air Act (including 45CSR14 and 45CSR19) pursuant to the provisions of this section.