Page 1 of 124 Express Terms Part 231, NEW SOURCE REVIEW [IN NONATTAINMENT AREAS AND OZONE TRANSPORT REGIONS] FOR NEW AND MODIFIED FACILITIES

Subpart 231-1 Requirements for Emission Sources Subj ect to the Regulation Prior to November 15, 1992 Subpart 231-2 Requirements for Emission Units Subject to the Regulation on or after November 15, 1992 and Prior to the Effective Date of Subparts 231-3 through 231-13

Existing Subpart 231-1 remains unchanged. Existing Subpart 231-2 through Subdivision 231-2.2(a) remains unchanged. Existing Paragraph 231-2.2(a)(1) is amended as follows: (1) a permit action for such emission unit occurs on or after November 15, 1992; or an exempt or trivial activity is constructed on or after November 15, 1992 and prior to the effective date of Subparts 231-3 through 231-13 ; and

Existing Paragraph 231-2.2(a)(2) through Section 231-2.13 remains unchanged. New Subparts 231-3 through 231-13 are adopted to read as follows: Subpart 231-3 General Provisions Subpart 231-4 Definitions Subpart 231-5 New Major Facilities and Modifications to Existing Non-major Facilities in Nonattainment Areas and Attainment Areas of the State within the Ozone Transport Region Subpart 231-6 Modifications to Existing Major Facilitie s in Nonattainment Areas and Attainment Areas of the State within the Ozone Transport Region Subpart 231-7 New Major Facilities and Modifications to Existing Non-major Facilities in AttainmentPage 2 of 124 Areas (Prevention of Significant Deterioration) Subpart 231-8 Modifications to Existing Major Facilitie s in Attainment Areas (Prevention of Significant Deterioration) Subpart 231-9 Plantwide Applicability Limitation (PAL) Subpart 231-10 Emission Reduction Credits (ERCs) Subpart 231-11 Permit and Reasonable Possibility Requirements Subpart 231-12 Ambient Air Quality Impact Analysis Subpart 231-13 Tables and Emission Thresholds

Subpart 231-3 General Provisions Section 231-3.1 Statement of purpose 231-3.2 Transition plan 231-3.3 Summary of applicability 231-3.4 Exemptions 231-3.5 General prohibitions 231-3.6 Source obligation 231-3.7 Permits 231-3.8 Requirement to commence construction 231-3.9 Facility shakedown period 231-3.10 Circumvention 231-3.11 Severability clause

231-3.1 Statement of purpose. The purpose of this Part is to establish the new source review (NSR) preconstruction,Page 3 of 124 construction and operation requirements for new and modified facilities in a manner which furthers the policy and objectives of Article 19 of the Environmental Cons ervation Law, and meets the Plan Requirements for Nonattainment Areas (Part D) and Prevention of Signifi cant Deterioration (PSD) of Air Quality (Part C) of subchapter I of the Act.

231-3.2 Transition plan. (a) On or after the effective date of this Subpart, a ny owner and/or operator of a proposed new or modified facility, for which a complete application has not been submitted to the department, must comply with the provisions of Subparts 231-3 through 231-13 of this Part.

(b) On or after the effective date of this Subpart, Subpart 231-2 will only apply to applications determined to be complete prior to the effective date of this Subpart.

231-3.3 Summary of applicability. (a) Subpart 231-5 of this Part applies to proposed ne w facilities, and to modifications at existing non-major facilities, proposed in a designated nonattainment area or in the ozone transport region which by themselves equal or exceed the applicable major facility threshold.

(b) Subpart 231-6 of this Part applies to modificati ons of existing major facilities proposed in a designated nonattainment area or in the ozone transport region.

(c) Subpart 231-7 of this Part applies to proposed ne w facilities, and to modifications at existing non-major facilities, proposed in areas designated in attainment of the national ambient air quality standards (NAAQS) or unclassified which by themselves equal or exceed the applicable major facility threshold.Page 4 of 124 (d) Subpart 231-8 of this Part applies to modifica tions of existing major facilities proposed in areas designated in attainment of the NAAQS or unclassified.

(e) Subpart 231-9 of this Part provides for a voluntary management of activities at an existing major facility under a Plantwide Applicability Limitation (PAL).

(f) Subpart 231-10 of this Part specifies how to create and use ERCs.

(g) Subpart 231-11 of this Part specifies permit and reasonable possibility requirements.

(h) Subpart 231-12 of this Part defines the requirements for an ambient air quality impact analysis.

(i) Subpart 231-13 of this Part sets forth tables and emission thresholds for determining applicability.

231-3.4 Exemptions. (a) Any applicant for a proposed new or modified fac ility which is subject to this Part may petition the department and the administrator of the United States Environmental Protection Agency, in accordance with 42 U.S.C. section 7511a(f), for a determination that net air qua lity benefits are greater in the absence of reductions of oxides of nitrogen from the facility. In addition, this Part shall not apply to facilities in nonattainment areas within the ozone transport region if the administrator determines , in accordance with section 7511a(f), that reductions of
NO x would not produce net ozone air quality benefits, or facilities in nonattainment areas outside the ozone transport region if the administrator determines, in accordance with section 7511a(f), that reductions of NO x would not contribute to attainment of the national ambient air quality standard for ozone in the area. To the extent that such a petition is granted by both the department and the admi nistrator, consistent with the Act, the requirements ofPage 5 of 124 this Part for the proposed new or modified facility with respect to emissions of NO x shall not apply.

(b) The facility is exempt from this Part if it is major based only on the addition of fugitive emissions and does not belong to one of the source categories listed in Table 9 of Subpart 231-13 of this Part.

(c) The provisions of Subparts 231-7 and 231-8 of this Pa rt do not apply to a new or modified facility as follows:

(1) The facility or emission source is portabl e and has previously received a permit under requirements equivalent to those contained in this Part, if:

(i) the facility or emission source proposes to relocate and emissions of the facility or emission source at the new location would be for less than one year; and

(ii) the emissions from the facility would not exceed its emission limit(s) established in a permit; and

(iii) the emissions from the facility would impact no Federal Class I area and no area where an applicable increment is known to be violated; and

(iv) reasonable notice is given to the depart ment prior to the relocation identifying the proposed new location and the probable duration of operation at the new location. Such notice must be given to the department not less than 10 days in advance of the proposed relocation unless a different time duration is previously approved by the department; orPage 6 of 124 (2) With respect to a particular regulated NSR contaminant, the facility is located in an area designated as nonattainment under section 107 of the Act for that contaminant.

(d) For the purposes of Subparts 231-7 a nd 231-8 of this Part, if the emissions from a facility or modification would occur for less than one year and impact no Federal Class I area, no area where an applicable increment is known to be violated, and would not c ontribute to known standards violations, then the requirements of Subparts 231-7 and 231-8 of this Part regardi ng Source Impact Analysis and Additional Impact Analyses, and Section 231- 12.3 (Pre-application analysis for Subparts 231-7 and 231-8) of this Part, do not apply to a facility with respect to a particular regulated NSR contaminant.

(e) If an existing major facility ow ner or operator submits a Part 201 application that includes a proposed modification and a request for enforceable permit terms and c onditions to restrict or cap facility wide emissions, in accordance with Subpart 201-7 of this T itle, below applicable major facility thresholds, the modification is not subject to the requirements of this Part. The Part 201 stat e facility permit issued by the department must include all applicable requirements, including any control technology requirements and emission limitations that were in the Title V permit. (f) Any emission source which is to be operated for less than one year, is determined not to be a significant action in accordance with the procedures contained in Pa rt 617 of this Title, and wh ich has a project emission potential less than the applicable significant project thres hold in Table 3, Table 4 or Table 6 of Section 231-13 of this Part, is not subject to this Part.

231-3.5 General prohibitions. Constructi on and operation prohibited. No owner or operator of a proposed major facility, NSR major modification, or existing major facility which undertakes a significant modification but avoids NSR applicability through netting, shall be allowed to be gin actual construction, commence operation, or operatePage 7 of 124 such new facility or modification, as a ppropriate, without a permit which incorpor ates the requirements of this Part. This provision shall not affect any requirement under Part 201 of this Title for an owne r and/or operator to obtain a permit or permit modification prior to beginning actual construction, commencing operation or operating a new or modified facility.

231-3.6 Source obligation. (a) The issuance of a permit does not relieve any owner or operator of the responsibility to comply fully with applicable provisions of the State Implementation Plan and any other requirements under local, State, or Federal law.

(b) For the purposes of Subparts 231-7 and 231-8 of this Part only, at such time that a particular facility becomes a major facility, or a modification becomes a NSR major modification solely by virtue of a relaxation in any enforceable limitation which was established af ter August 7, 1980, on the capacity of the facility or modification otherwise to emit a regulated NSR contaminan t, such as a restriction on hours of operation, then the requirements of Subparts 231-7 and 231-8 of this Part, as applicable, apply to the facility as though construction had not yet commenced on the facility. (c) Any owner or operator of a facility that proposes a project that involves a physical change or change in the method of operation that the owner or operator determines would be followed by a facility emissions increase that equals or exceeds any of the significant project threshol ds in Subpart 231-13 of this Part, Tables 3, 4 or 6, must notify the department in writing of the proposed project pr ior to implementing the change if the owner or operator determines that the project does not constitute a modificati on because all the emission increases are attributable to independent factors in accordance with Clause 231-4.1(b)(40)(i )(c) of this Part. The no tification shall include the following:Page 8 of 124 (1) A description of the change. (2) The calculation of the projected emissions increase.

(3) The proposed date of the change.

(4) An explanation of the factual basis for the conclusion that none of the projected emission increases are attributable to the proposed project.

231-3.7 Permits. (a) Permit applications for proposed new and modified facilities subject to this Part will be processed in accordance with Parts 201 and 621 of this Title.

(b) In accordance with section 165(c) of the Act, th e department will make a final determination on an application submitted pursuant to Subpart 231-7 or Subpart 231- 8 of this Part within one year of the filing of a complete application as defined under Part 621 of this Title.

231-3.8 Requirement to commence construction. The existence of a valid permit shall not be construed as authorizing constructi on if construction is not commenced within 18 months after the date of permit issuance, if construction is discontinued for a period of 18 months or more, or if construction is not completed with in a reasonable time as determ ined by the department. The department may grant one extension for a period not to exceed 18 months upon a satisfactory showing that an extension is justified. A permit shall become subject to revocation or modification if construction is not commenced and completed as provided in this section. This provisi on does not apply to the time period between the completion and start of construction, of the approved phases, of a phased construction project; each phase must commencePage 9 of 124 construction within 18 months of its projected and approved commencement date. 231-3.9 Facility shakedown period. Upon commencement of operation, as de fined in subparagraph 231-4.1(b)(11)(i), of a major facility or new or modified emission source(s) at an existing facility, the owner or operator is allowed a shakedown period for such major facility or modified emission source(s) according to the following provisions:

(a) The shakedown period shall not exceed 180 days from the date of commencement of operation. The department may specify a shakedown period of less than 180 days in a permit.

(b) The total mass emissions during the shakedown pe riod must be quantified, in a manner approved by the department, and are to be included in the calculation de monstrating compliance with the permitted annual limit in tons per year (tpy) of the facility or emission source(s).

(c) Emission limits other than annual emission limitations do not apply to a major fac ility or new or modified emission source(s) at an existing facility during the shake down period. However, the owner or operator must make all reasonable efforts to minimize emissions during the shakedown period.

231-3.10 Circumvention. (a) An owner or operator of a facility may not circum vent this Part by causing or allowing a pattern of ownership or development, including the phasing, staging, delaying, or engaging in incremental construction at a facility which, except for the pattern of ownership or development, would otherwise require a permit.

(b) The sale or other transfer of a facility to a ne w owner or operator does not relieve the new owner or operator from the requirement to obtain a permit and operate the facility in conformance with the requirements ofPage 10 of 124 this Part. 231-3.11 Severability clause. Each section or portion thereof, of this Part shall be deemed severable, and in the event that any section, or portion thereof, of this Part is held to be invalid, the remainder of this Part will continue in full force and effect.

Subpart 231-4 Definitions 231-4.1 Definitions. (a) Unless otherwise defined in this section, the genera l definitions of Parts 200 and 201 of this Title apply.

(b) For the purposes of this Part the following definitions also apply:

(1) Actual emissions. For the purposes of determining the baseline concentration, and the calculation of air quality impacts according to Section 231-12.2 of this Part:

(i) The actual rate of emissions of a regulated NSR contaminant from an emission source, as determined in accordance with the following paragraphs.

(ii) Actual emissions as of a particular date shall equal the rate at which the emission source actually emitted the regulated NSR contaminan t during the 24 consecutive month period which precedes the particular date and which is repr esentative of normal emission source operation. The department will allow the use of a different time period upon a determination that it is more representative of normal facility operation. Actual emissions shall be calculated using the emission source’s actual operating hours, production rates, a nd types of materials processed, stored, or combusted during the selected time period.Page 11 of 124 (iii) The department may presum e that facility-specific allowable emissions for the emission source are equivalent to the actual emissions of the emission source.

(iv) For any emission source that has not comme nced operation on the particular date, actual emissions shall equal the potential to emit of the emission source on that date.

(2) Adverse impact on visibility. Visibility impa irment which interferes with the management, protection, preservation or enjoyment of the visitor's visual experience of the Federal Class I area. This determination must be made on a case-by-case basis taking into account the geographic extent, intensity, duration, frequency and time of visibility impairment.

(3) Allowable emissions. This definition applies only for the purposes of determining the baseline concentration and the calculation of air quality imp acts according to Section 231-12.2 of this Part. The emission rate of a facility calculated using the maximum rated capacity of the facility (unless the facility is subject to permit conditions which restrict the operati ng rate, or hours of operation, or both) and the most stringent of the following:

(i) The applicable standards as set forth in 40 CFR parts 60 and 61; or

(ii) The applicable state implementation pl an emissions limitation, including those with a future compliance date; or

(iii) The emission rate specified in a pe rmit condition, including those with a futurePage 12 of 124 compliance date. (4) Baseline actual emissions. The annual rate of emissions of a regulated NSR contaminant from an emission source determined as follows:

(i) The average rate (as defined in Clauses a, b, c, and, d below), in t py, at which an emission source physically emitted the contaminant during its baseline period, determined by using the

source = s actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected baseline period. (‘a’) The average rate includes fugitive emi ssions to the extent quantifiable if the facility belongs to one of the source categorie s listed in Table 9 of Subpart 231-13 of this Part, and emissions associated with startups, shutdowns, and malfunctions.

(‘b’) The average rate must be adjusted downward to exclude any non-compliant emissions that occurred while the emission source was operating above any applicable emission limitation.

(‘c’) Except for electric utility steam genera ting units, the average rate must be adjusted downward to exclude any emissions that exceeded an emission limitation with which the emission source must currently compl y, had such emission source been required to comply with such limitations during the baselin e period. However, if an emission limitation is part of a maximum achievable control tec hnology standard that the administrator proposed or promulgated under 40 CFR Part 63, the baseline actual emissions rate need only be adjusted if the State has taken credit for su ch emissions reductions in an attainment demonstration or maintenance plan consistent with the requirements of 40 CFRPage 13 of 124 51.165(a)(3)(ii)(G). For the purposes of a cred itable emission increase or emission reduction credit used for netting, currently means at the time that the increase or reduction actually occurred.

(‘d’) For a regulated NSR contaminant, wh en a project involves multiple emissions sources, one baseline period must be used to de termine the baseline actual emissions of the emission sources being modifi ed. A different baseline pe riod cannot be used for each regulated NSR contaminant.

(ii) The applicant must use a reliable basis for quantifying the baseline actual emissions. Continuous emissions monitoring (CEM) data or stack test data approved by the department must be used if the facility is required to generate such data . If such data is not available, acceptable bases for quantifying baseline actual emissions include, but are not limited to, emission statements, EPA's AP-42 emission factors, and fuel and solvent purchase records, with department approval.

(5) Baseline area. Any intrastate area (and every part thereof), designated as attainment or unclassifiable under section 107 of the Act, in wh ich the major facility or NSR major modification establishing the minor facility baseline date would constr uct or would have an air quality impact equal to or greater than 1 μ g/m3 (annual average) of the regulated NS R contaminant for which the minor facility baseline date is established.

(i) Area redesignations under section 107 of the act cannot intersect or be smaller than the area of impact of any major facility or NSR majo r modification which establishes a minor facility baseline date; orPage 14 of 124 (ii) Baseline areas pursuant to established Air Quality Control Regions (AQCR) are defined and listed in the department’s policy document on ambient air quality impact analysis procedures.

(6) Baseline concentration.

(i) The ambient concentration level that exis ts in the baseline area at the time of the applicable minor facility baseline date. A baseline concentration is determined for each regulated NSR contaminant for which a minor facility baseline date is established and must include: (‘a’) the actual emissions representative of facilities in existence on the applicable minor facility baseline date, except as provided in this Subparagraph; and

(‘b’) the allowable emissions of major fac ilities that commenced construction before the major facility baseline date, but were not in operation by the applicable minor facility baseline date.

(ii) The following will not be included in th e baseline concentration and will affect the applicable maximum allowable increase(s):

(‘a’) Actual emissions from any major facility on which construction commenced after the major facility baseline date; and

(‘b’) Actual emission increases and decreases at any facility occurring after the minor facility baseline date.Page 15 of 124 (7) Baseline period. A period of time used to quan tify a creditable emission increase, an ERC, or project emission potential. The baseline period consists of any 24 consecutive months within the five years immediately preceding the date identified below (if less than 24 consecutive months of operation exist, this period of operation must be used as the baseline period):

(i) For a creditable emission increase which has physically occurred, the date of the occurrence of the emission increase;

(ii) For an ERC which has physically occurred, the date of the occu rrence of the emission reduction;

(iii) For a creditable emission increase or an E RC which is scheduled to occur in the future, the date of receipt by the department of the perm it application which proposes to use the creditable emission increase or ERC;

(iv) For the calculation of project emission poten tial of a modification, th e date of receipt by the department of a permit application for the modification; or

(v) For a facility which fails to submit a permit application for a NSR major modification and begins actual construction of such modification, the department will determine an appropriate baseline period.

(8) Begin actual construction. In general, initiati on of physical on-site construction activities on anPage 16 of 124 emission source which are of a permanent nature. Such activities include, but are not limited to, installation of building supports and foundations, laying underground pi pe work and construction of permanent storage structures. With respect to a change in method of opera tions, this term refers to those on-site activities other than preparatory activities which mark the initiation of the change.

(9) Best available control technology (BACT). An emissions limitation based on the maximum degree of reduction for each air pollutant subject to regulation under the Act which would be emitted from or which results from any proposed major facility or NSR major modification which the department, on a case-by-case basis, taking into account energy, envir onmental, and economic impacts and other costs, determines is achievable for such proposed major fac ility or NSR major modification through application of production processes or available methods, systems, and techniques, including fuel cleaning, clean fuels, or treatment or innovative fuel combustion techniques for control of such air pollutant. In no event shall application of BACT result in emi ssions of any air pollutant which would exceed the emissions allowed by any applicable standard established pursuant to sec tion 7411 or 7412 of the Act. Emissions from any source utilizing clean fuels, or any other means, to comply with this paragraph shall not be allowed to increase above levels that woul d have been required under this paragraph as it existed prior to enactment of the Clean Air Act Amendments of 1990.

(10) Commence construction. The date on whic h the owner or operator has all necessary preconstruction approvals or permits (including those permits or approvals requi red under federal air quality control laws and those which are part of the state implementation plan) and has either:

(i) begun, or caused to begin, a continuous progr am of actual construction, to be completed within a reasonable time as determined by the department; orPage 17 of 124 (ii) entered into binding agreements or contr actual obligations, which cannot be canceled or modified without substantial loss to the owner or operator, to undertake a program of actual construction to be completed within a reasonable time as determined by the department.

With respect to a change in the method of opera tion, commence construction refers to those on-site activities other than preparatory activities which mark the initiation of the change.

(11) Commence(s) operation or commencement of operation. (i) the date that a proposed new or modified f acility first emits or increases emissions of any regulated NSR contaminant to which this Part applies; or

(ii) the date on which the facility shakedown period ends for a proposed modified facility which utilizes future ERCs for netting.

(12) Contemporaneous. The time period used ina net emission increase determination for a regulated NSR contaminant as follows:

(i) The period beginning five years prior to th e proposed commence construction date of the new or modified emission source, and ending w ith the proposed commence operation date. These dates must be proposed by an applicant in a permit application.

(ii) For facilities proposing to use an alterna tive operating scenario pursuant to Part 201 of this Title, the period beginning five years prior to the date the application for the permit modificationPage 18 of 124 is determined complete by the department, in accord ance with Part 621 of this Title, and ending with the final permit issuance date.

(13) Creditable emission increase. Any increase in emissions of a regulated NSR contaminant in tpy from an emission source at an existing major facilit y, other than such an increase from any proposed modified facility under review, which:

(i) results from a physical change in, or a ch ange in the method of operation of an emission source(s); and (ii) is quantified as the difference between baseline actual emissions and projected actual emissions.

(14) Curtailment. A restriction on the operation of an emission source at an existing facility included in a permit, which results in an emission reduction and reflects a partial reduction in hours of operation or capacity utilization of such emission source.

(15) Electric utility steam generating unit. Any steam-electric generating unit constructed for the purpose of supplying more than one-third of its potential electric output capacity and more than 25 megawatts of electrical output to any utility power di stribution system for sale. Any steam supplied to a steam distribution system for the purpose of providi ng steam to a steam-electric generator that would produce electrical energy for sale is also considered in determining the electrical energy output capacity.

(16) Emission offset. ERCs or emission reductions which are required to be obtained by a proposed new or modified facility, which is or will be located in a nonattainment area or an attainment area of thePage 19 of 124 state within the ozone transport region, in order to obtain a permit to construct and/or operate a new or modified facility.

(17) Emission reduction credit, ERC. The actua l decrease in emissions of a regulated NSR contaminant, in tpy, determined in accordance with the requirements of Subpart 231-10 of this Part.

(18) Emission source shutdown. For the purposes of establishing ERCs:

(i) the permanent removal from service of an emission source, as reflected by a permit condition that formally prohibits the emission so urce from further operation, provided that it does not result in a facility shutdown; or

(ii) the physical removal of an emission source at a facility as reflected by a permit modification that removes the emission source from the permit, provided that it does not result in a facility shutdown.

(19) Facility shutdown. For the purposes of establishing ERCs, the permanent removal from service of all emission sources at a facility, as reflected by the surrender to the department of the applicable Title V or state facility permit, or registration.

(20) Federal Class I area. All of the following areas which were in existence on August 7, 1977 shall be Federal Class I areas and may not be redesignated:

(i) International parks;Page 20 of 124 (ii) National wilderness areas which exceed 5,000 acres in size;

(iii) National memorial parks which exceed 5000 acres in size;

(iv) National parks which exceed 6000 acres in size.

(21) Federal Land Manager. With respect to any Cl ass I lands of the United States, the Secretary of the department with authority over such Class I lands.

(22) Future reductions. Reductions which are schedul ed to occur subsequent to the issuance of a permit for a new or modified major facility using the reductions.

(23) Internal offset. ERCs of volatile organic compounds (VOC) or NO x , in the severe ozone nonattainment area only, from emission sources within the same existing major facility as a proposed NSR major modification, which physically occur on or afte r November 15, 1990. Such reductions must meet the requirements of this Part.

(24) Major facility baseline date.

(i) In the case of particulate matter (PM) and SO 2 , January 6, 1975, and

(ii) In the case of nitrogen dioxide, February 8, 1988.Page 21 of 124 (25) Major PAL emission source. For the purposes of Subpart 231-9 of this Part, any emission source located in an attainment area that emits or has the potential to emit 100 tpy or more of a PAL contaminant; or any emission source located in a nonattain ment area that emits or has the potential to emit a PAL contaminant in an amount that is equal to or greater than the major facility threshold for the PAL contaminant.

(26) Minor PAL emission source. For the purposes of Subpart 231-9 of this Part, an emission source that emits or has the potential to emit a PAL contaminant in an amount less than the significant project threshold as listed in Subpart 231-13 of this Part or in the Act, whichever is lower, for that PAL contaminant. (27) Minor facility baseline date. The earliest date after the trigger date on which a major facility or a NSR major modification subject to Subpart 231-7 or 231-8 of this Part submits a complete application.

(i) The trigger date is:

(‘a’) in the case of PM and SO 2 , August 7, 1977; and

(‘b’) in the case of nitrogen dioxide, February 8, 1988.

(ii) The baseline date is established for each contaminant for which increments or other equivalent measures have been established if:

(‘a’) the area in which the proposed emissi on source or modification would construct is designated as attainment or unclassifiable under section 7407 of the Act for the regulatedPage 22 of 124 NSR contaminant on the date of its complete application; and (‘b’) in the case of a major facility, the re gulated NSR contaminant would be emitted at or greater than the major facility threshol ds, or, in the case of a NSR major modification, there would be a significant net emissions increase of the regulated NSR contaminant.

(iii) The minor facility baseline dates have been established for SO 2 , NO x , and PM-10. These dates are listed in the department = s policy documents on air quality impact analysis.

(28) Modification. A ny physical change in, or change in the method of operation of, a facility which results in a level of annual emissions in excess of the baseline actual emissions of any regulated NSR contaminant emitted by such facility or which results in the emission of any regulated NSR contaminant not previously emitted. A modification shall not include the following:

(i) routine maintenance, repair, or replacement as defined in Part 200 of this Title;

(ii) use of an alternative fuel or raw material by reason of an order under sections 2(a) and (b) of the Energy Supply and Environmental Coordinati on Act of 1974 (or any supe rseding legislation) or by reason of a natural gas curtailment plan pursuant to the Federal Power Act;

(iii) use of an alternative fuel by reason of an order or rule under section 125 of the Act;

(iv) use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste;Page 23 of 124 (v) use of an alternative fuel or raw material by a facility which: (‘a’) the facility was capable of acco mmodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975 pursuan t to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR Part 51 Subpart I or 40 CFR 51.166; or

(‘b’) the facility is approved to use, pursuant to this Part, or which is included in a permit issued pursuant to 40 CFR 52.21.

(vi) an increase in the hours of operation or in the production rate, unle ss such change would be prohibited under any permit condition which was established after January 6, 1975, pursuant to 40 CFR 52.21 or under regulations approved pursuan t to 40 CFR Part 51 Subpart I or 40 CFR 51.166;

(vii) any change in ownership at a facility.

(29) Net emission increase. The aggregate increase in emissions of a regulated NSR contaminant in tpy at an existing major facility resulting from the sum of:

(i) the project emission potential of the modification; and

(ii) every creditable emission increase at th e facility which is contemporaneous and for which an emission offset was not obtained; andPage 24 of 124 (iii) any ERC at the facility, or portion thereof, selected by the applicant which is contemporaneous and which was not previously used as part of an emission offset or an internal offset.

(30) Nonattainment contaminant. A regulated NSR contaminant emitted by an emission source located or proposed to be located in an area designate d in Part 200 of this Title as nonattainment for that contaminant. All of New York State is within th e ozone transport region as designated by the act. Therefore, VOC and NO x are treated as nonattainment contaminants statewide as precursors of ozone.

(31) NSR major modification. Any modification of a major facility that woul d exceed the applicable significant project threshold of a regulated NSR contam inant in Table 3, Table 4, or Table 6 of Subpart 231- 13 of this Part; and would result in a significant net em issions increase of that contaminant from the major facility.

(i) Any modification with a project emission potential for VOC or NO x that exceeds the applicable significant project threshold or any ne t emissions increase at a major facility that is significant for VOC or NO x shall be considered significant for ozone.

(ii) This definition shall not apply with resp ect to a particular regulated NSR contaminant when the major facility is comply ing with the requirements under Subpart 231-9 of this Part for a PAL for that contaminant. Instead, the definition of PAL major modification shall apply.

(32) Offset ratio. The ratio of a required ERC, on a nonattainment contaminan t specific basis, to the project emission potential of a modification at an exis ting facility or the potential to emit of a new facility,Page 25 of 124 as applicable. Offset ratios are listed in Subpart 231-13 of this Part. (33) Permanent. Permanent relative to an ERC fr om an emission source means that the reduction is irreversible through the life of the emission source except as provided in this Part.

(34) Plantwide applicability limitation (PAL). A facility-wide emission limitation for a regulated NSR contaminant at a major facility that is expressed in tpy and is included in the facility = s permit.

(35) PAL contaminant. The regulated NSR contaminant for which a PAL is established at a major facility.

(36) PAL effective date. The date of issuance of the permit which establishes a PAL. The PAL effective date for a facility that undergoes a modificati on which increases a prior PAL is the date when the modification commences operation and begins to emit the PAL contaminant.

(37) PAL effective period. The period beginning w ith the PAL effective date and ending 10 years later or, the date of expiration of the Title V pe rmit following the renewal of the Title V permit which established the PAL, whichever is earlier. Thereafter, the effective period is 10 years from date of issuance of the Title V permit. The effective period is not to exceed 10 years.

(38) PAL major modification. Notwithstanding th e definitions for NSR major modification and net emissions increase, any modification of a facility with a PAL that causes it to emit the PAL contaminant at a level equal to or greater than the PAL.

(39) Project emission potential. Pr oject emission potential is determ ined only for modifications atPage 26 of 124 existing facilities. (i) For each regulated NSR contaminant, the project emission potential must consider only the proposed emission increases and is calculated as the sum of the following:

(‘a’) For new emission sources, the potential to emit of each emission source; and

(‘b’) For existing emission sources at a non- major facility, the difference between the baseline actual emissions and the potential to emit of the emission source; or

(‘c’) For existing emission sources at a major facility, the difference between the baseline actual emissions and the projected actual emissions of the emission source.

(ii) Project emission potential does not include secondary emissions.

(iii) Fugitive emissions are not included in th e project emission potential unless the facility belongs to one of the source categories listed in Table 9 of Subpart 231-13 of this Part.

(iv) For emergency power generating stationary internal combustion engines, the project emission potential will be based on a maximum of 500 hours of operation per year per engine unless a more restrictive limitation exists in a permit or registration.

(40) Projected actual emissions. The maximum a nnual rate, in tpy, at which an existing emission source is projected to emit a regulated NSR contaminan t in any one of the five years (12-month period) following the date the source commences operation afte r a modification, or in any one of the 10 yearsPage 27 of 124 following that date if the project involves increasing the emission source = s design capacity or its potential to emit that regulated NSR contaminant and full utilizati on of the emission source would result in exceeding the applicable significant project threshold in Tables 3, 4 or 6 of Subpart 231-13 of th is Part or a significant net emissions increase at the major facility. Project ed actual emissions are calculated only for existing major facilities.

(i) In determining the projected actual emissions as defined in this Section (before beginning actual construction), the owner or operator of the major facility:

(‘a’) must consider all relevant informa tion, including but not lim ited to, historical operational data, the facility = s own representations, the facility = s expected business activity and the facility = s highest projections of business activity, the facility = s filings with the State or federal regulatory authorities, and compliance plans under the approved State Implementation Plan; and

(‘b’) must include fugitive emissions to the extent quantifiable if the facility belongs to one of the source categories listed in Ta ble 9 of Subpart 231-13 of this Part , and emissions associated with startups and shutdowns; and

(‘c’) may exclude, in calculating any increas e in emissions that results from the particular project, that portion of the emission source = s emissions following the project that the existing emission source could have acco mmodated during the consecutive 24-month period used to establish the baseline actual em issions and that are also unrelated to the particular project.Page 28 of 124 (ii) In lieu of using the method set out in S ubparagraph (i) of this Paragraph, the owner or operator of the facility may elect to use the potential to emit of the emission source(s), in tpy.

(41) Quantifiable. A reliable basis must exis t for calculating the amount and the rate of the emissions increase or reduction, along with a description of the characteristics of such increase or reduction. The same method must be used to quantify emissions before and after the emissions increase or reduction, unless the department approves an alternate method.

(42) Reasonable further progress. Annual increm ental reductions in emissions of a nonattainment contaminant required by applicable re gulations and implementation plans to ensure timely attainment of the corresponding national ambient air quality standard.

(43) Regulated NSR contaminant. A regulated NSR contaminant is any one of the following:

(i) Any contaminant for which a national ambient air quality standard has been promulgated and any constituents or precursors for such c ontaminants identified under the Act or by the administrator of the US EPA in a promulgated rule;

(ii) Any contaminant that is subject to a ny standard promulgated under section 111 of the Act;

(iii) Any Federal Class I or II substance subject to a standard promulgated under or established by Title VI of the Clean Air Act; orPage 29 of 124 (iv) Any contaminant that otherwise is subj ect to regulation under the Clean Air Act; except that any or all hazardous air pollutants either liste d in section 112 of the Act or added to the list pursuant to section 112(b)(2) of the Act, which ha ve not been delisted pursuant to section 112(b)(3) of the Act, are not regulated NSR contaminants unless the listed hazardous air pollutant is also regulated as a constituent or precursor of a criteria contaminant listed under section 108 of the Act.

(44) Secondary emissions. Emissi ons of a regulated NSR contaminant which will occur as a result of the construction or operation of a proposed new or modified facility, not in cluding emissions from the proposed new or modified facility itself. Secondary em issions must be specific, well defined, quantifiable, and impact the same general area as the proposed ne w or modified facility which causes the secondary emissions. Secondary emissions include regulated NS R contaminant emissions from any offsite support facility which would not be constructed or increase its emissions except as a result of the construction or operation of the proposed new or modified facility. Secondary emissions do not include any emissions which come directly from a mobile source subject to any regulation under Title II of the Clean Air Act, such as emissions from a motor vehicle or a train. Secondary emissions will not be cons idered in an applicability determination for a proposed new or modified facilit y. For the purposes of Subpart 231-12 of this Part, secondary emissions must be included during the modeling exercise.

(45) Significant net emission increase.

(i) A net emission increase of a nonattainment contaminant at an existing major facility that equals or exceeds the applicable significant net em issions increase threshold specified in Tables 3 and 4 of Subpart 231-13 of this Part; orPage 30 of 124 (ii) A net emission increase of a regulated NSR contaminant at an existing major facility located in an attainment area or unclassifiable area under section 7407 of the Act that equals or exceeds the applicable significant net emissions incr ease threshold specified in Table 6 of Subpart 231-13 of this Part.

(46) Significant PAL emission source. An emission source that emits or has the potential to emit a PAL contaminant in an amount that is equal to or great er than the significant project threshold (as listed in Subpart 231-13 of this Part or in th e Act, whichever is lower) for that PAL contaminant, but less than the amount that would qualify the emission source as a major PAL emission source.

(47) Source reduction. Any practice which reduces em issions of a regulated NSR contaminant, other than a facility shutdown, emission source shutdown, curt ailment, or over control of emissions beyond an applicable limit. Examples of sour ce reduction would be reformulation of inks, paints, coatings, etc., which result in reductions beyond levels required by the most stringent applicable state or federal emission limitation, or replacement at the same location, or c ontiguous locations, of a source with another source which emits less to perform the same task, or replacement or repair of valves, fitti ngs, or other equipment to reduce fugitive emissions.

(48) Surplus. A reduction in emissions beyond leve ls prescribed by the most stringent applicable state or federal emission limitation required by the Act.

Subpart 231-5 New Major Facilities and Modifications to Existing Non-major Facilities in Nonattainment Areas, and Attainment Areas of the State within the Ozone Transport RegionPage 31 of 124 Section 231-5.1 Applicability 231-5.2 Permit application content 231-5.3 Permit content and terms of issuance 231-5.4 Lowest achievable emission rate (LAER) 231-5.5 Emission offset requirements

231-5.1 Applicability. (a) The requirements of this Subpart apply, in nonattain ment areas and attainment areas of the state within the ozone transport region, to the construction and/or operation of:

(1) any proposed facility which has the potential to emit a nonattainment contaminant in an amount that equals or exceeds the major facility threshold for that contaminant; or

(2) a modification to an existing non-major facility which has a project emission potential for any nonattainment contaminant that equals or exceeds the major facility threshold for that contaminant.

(b) An existing non-major facility that is located in a nonattainment area or an attainment area of the state within the ozone transport region which proposes a modi fication that has a project emission potential for any nonattainment contaminant that does not equal or exceed the applicable major facility threshold, but would result in the facility becoming a major f acility for such contaminant, is not subject to review under this Subpart. However, the facility owner or operator must apply for and obtain a permit in accordance with Part 201 of this Title and the permit must contain an emission limit(s) equal to the pot ential to emit of the emission source(s) affected by thePage 32 of 124 modification. 231-5.2 Permit application content. The information required in a permit application is se t forth in Part 201 of th is Title and generally in Subpart 231-11 of this Part. In addition, the following info rmation must be included with the permit application at the time the application is submitted to the department, unless otherwise specified:

(a) A certification that all emission sources which are pa rt of any major facility located in New York State and under the applicant's ownership or control (or under the ownership or control of any entity which controls, is controlled by, or has common control with the applicant) are in compliance, or are on a schedule for compliance, with all applicable emission limitations and standards under Chapter III of this title.

(b) An analysis of alternative sites, sizes, production processes, and environmenta l control techniques which demonstrates that benefits of the proposed new or modi fied facility significantly outweigh the environmental and social costs imposed as a result of its location, c onstruction, or modification within New York State.

(c) A LAER analysis in accordance with Section 231-5.4 of this Part.

(d) Emission offset information for VOC or NO x . At the time of the initial permit application or before the department issues a final permit determination, the applicant must submit:

(1) a list which identifies the source(s) of certified or proposed ERCs of VOC or NO x that will be used as required emission offsets. This list must include the name and location of the facility, DEC identification number, if applicab le, and the emission reduction mechan ism (i.e., facility shutdown, emission unit shutdown, source reduction, curtailment, over-control of emissions beyond an applicable limit). All thePage 33 of 124 proposed ERCs must be certified prior to the issuance of the final permit; and (2) a Use of Emission Reduction Credits Form (dul y completed and signed by the applicant and an authorized representative of the ERC seller) for each ERC source listed in Paragraph 231-5.2(d)(1) of this Subdivision. Upon issuance of the pe rmit for the proposed new or modified facility, the NYS ERC Registry will be amended to reflect that the ERCs are committed as emission offsets to the proposed new or modified facility; and

(3) for emissions of VOC or NO x in an ozone nonattainment area, documentation of compliance with the contribution demonstration required according to the department’s policy documents on air quality impact analyses pursuant to Subpart 231-12 of this Part.

(e) Emission offset information for PM-10 and PM-2.5. The following information must be submitted at the time of the initial permit application:

(1) A list which identifies the sour ce(s) of certified or proposed ERCs of PM-10 or PM-2.5 that will be used as required emission offsets. This list mu st include the name and location of the facility, DEC identification number, if applicab le, and the emission reduction mechan ism (i.e., facility shutdown, emission unit shutdown, source reduction, curtailment, over-control of emissions beyond an applicable limit); and

(2) A Use of Emission Reduction Credits Form (dul y completed and signed by the applicant and an authorized representative of the ERC seller) for each ERC source listed in Paragraph 231-5.2(e)(1) of this Subdivision. Upon issuance of the pe rmit for the proposed new or modified facility, the NYS ERC Registry will be amended to reflect that the ERCs are committed as emission offsets to the proposed new or modified facility; andPage 34 of 124 (3) An air quality impact evaluation in accordance with the provisions of Subdivision 231-5.5(d) and Subpart 231-12 of this Part and the department = s policy document on air quality impact analysis.

231-5.3 Permit content and terms of issuance. The permit c ontent and terms of issuance are set forth generally in Subpart 231-11 of this Part. In addition, the following provisions apply:

(a) The following emission limitations, as applicable, shall be established in a permit:

(1) The potential to emit of all applicable nona ttainment contaminants of a proposed facility;

(2) The potential to emit each applicable nonattainment contaminant of a modification at an existing non-major facility which has a project emission poten tial for any nonattainment contaminant that exceeds the major facility threshold for that contaminant;

(3) Any applicable LAER limitation.

(b) A revised air quality impact evaluation must be s ubmitted if the emission offset list changes after the department provides a Notice of Complete Applicati on in accordance with Part 621, and a supplemental public notice must be provided in accordance with Section 231-5.3(c) of this Part.

(c) Supplemental public notice requirements for ERCs used as emission offsets.

(1) A supplemental public notice is required prior to final permit issuance if the list of facilitiesPage 35 of 124 providing ERCs for emission offsets is changed or finalized after the date of the Notice of Complete Application. Such notice will be provided in accordance with Part 621 of this Title.

(2) A significant permit modification in accordance with Part 201 of this Title, and supplemental public notice are required if the list of facilities providi ng ERCs is changed after final permit issuance and prior to commencement of operation. Such notice will be provided in accordance with Part 621 of this Title.

(d) A petition for party status pursuant to the supplemen tal notice provisions based on an offer of proof that raises substantive and significan t issues related to emission offset requirements of this Part will not be considered as late filed petitions for party status pursuant to Part 624 of this Title.

(e) Offset confirmation prior to the commencement of operation. At least 60 days prior to the date a proposed new or modified facility commences operation, the permittee must submit an application to the department if there are any proposed changes to the approved list of emission offset sources included in the permit for that facility. For each such change, the applicant must subm it another Use of Emission Reduction Credits Form signed by the applicant and an authorized representative of the new offset source.

(f) Future ERCs. The permittee must submit prior to permit issuance a copy of each modified permit establishing future ERCs and a letter to the department stating that the future reductions have physically occurred. The letter shall be submitted as follows:

(1) no less than 10 working days prior to the date the proposed new or modified facility commences operation, except for a functional replacement of an existing emission source(s); orPage 36 of 124 (2) by the conclusion of the facility shakedown period, as identified under Section 231-3.9 of this Part, for a functional replacement of an existing emission source(s).

(g) Canceled or abandoned projects. Prior to the commencement of operation, a facility owner or operator may notify the department of their inte ntion to abandon the project and request a return of ERCs committed for use as emission offsets. Following the department = s approval of such request and rescission of the permit, the department will return the unused ERCs to the ERC Registry.

231-5.4 Lowest achievable emission rate (LAER). (a) For a proposed new or modified facility LAER is required for each emission source which emits a nonattainment contaminant for which the new facility or modification is major.

(b) In establishing the final LAER limit, the departme nt may consider any new in formation, including recent permit decisions, or public comment received, subsequent to the submittal of a complete application.

(c) LAER will not to be established in final form until the final permit is issued.

231-5.5 Emission offset requirements. (a) Emission offset applicability.

(1) A proposed new facility which is subject to this Subpart must offset its potential to emit for each nonattainment contaminant for which it equals or exceeds the major facility threshold.

(2) A proposed modification to an existing non-ma jor facility must offset its project emissionPage 37 of 124 potential for each nonattainment contaminant for which the project emission potential equals or exceeds the major facility threshold.

(b) Offset ratio.

(1) An emission offset of VOC or NO x as ozone precursors must exceed the corresponding facility potential to emit or project emission potential (subsequent to application of LAER), as appropriate, by the applicable offset ratio specified in Subpart 231-13 of th is Part. A greater offset ratio may be required, on a case by case basis, to provide an acceptable contribution demonstration as set forth in this section.

(2) An emission offset of PM-10 and PM-2.5 must at least equal (offset ratio of one to one or greater) the corresponding facility potential to emit or project emission potential (subsequent to application of LAER), as appropriate, as indicated in Subpart 231-13 of this Part. A greater offset ratio may be required to provide a net air quality benefit as set forth in this section.

(c) Use of an ERC as part of an em ission offset. An ERC must meet the following conditions to be used as part of an emission offset:

(1) For NO x , PM-10, or VOC emissions, E RCs must have physically occurred on or after November 15, 1990 but need not be contemporaneous;

(2) For PM-2.5 emissions, ERCs must have physi cally occurred on or after April 5, 2005 but need not be contemporaneous;Page 38 of 124 (3) An ERC, or portion thereof, must be included as a condition in the permit for the proposed new or modified facility for which the reduction is used.

(d) Net air quality benefit and emission offset location for PM-10 or PM-2.5. An emission offset of PM-10 or PM-2.5 must meet the following:

(1) Contribution demonstration. An emission offs et may be obtained from the same nonattainment area in which a proposed new or modified facility is to be located. An emission offset may also be obtained from other nonattainment areas of equal or higher cl assification if emissions from such other areas contribute to a violation of the NAAQS for PM-10 or PM-2.5, as applicable, in the nonattainment area where the proposed new or modified facility is to be located.

(2) Net air quality benefit demonstration. As part of a permit application, the applicant must submit an air quality impact evaluation in accordance with th e department’s policy document on ambient air quality impact analysis provisions. The ambient air quality impact analysis must demonstrate that:

(i) the net impact of the proposed emissions increase and the emission offset provides for a net benefit, on balance, in the area affected by the proposed new or modified facility; and

(ii) for PM-10 only, the net impact in no case exceeds an applicable significant impact level of Section 231-12.6 of this Part.

(3) Interstate offsets. An emission offset of PM-10 or PM-2.5, from areas of equal or higher classification may be obtained from another state, provide d that an interstate reciprocal trading agreement isPage 39 of 124 in place and the requirements of Paragraphs (1) and (2) of this Subdivision are met. (e) Ozone nonattainment and emission offset location. The department’s policy documents on an air quality impact analysis must be used by an a pplicant to find default acceptable VOC or NO x offset source locations within New York State or to perform a case specific contribu tion demonstration. An emi ssion offset of VOC or NO x is subject to the following: (1) Proposed new or modified facility located in an ozone nonattainment area.

(i) Intrastate offset sources. An emission offset of VOC or NO x must be obtained from:

(‘a’) the same ozone nonattainment area, or

(‘b’) other ozone nonattainment areas of equa l or higher classification, if emissions from such other areas contribute to a viola tion of the NAAQS for ozone in the nonattainment area where the proposed new or modified facility is to be located.

(ii) Interstate offset sources. An emissi on offset may be obtai ned from other ozone nonattainment areas of equal or higher classification in another state, if emissions from such other areas contribute to a violation of the NAAQS for ozone in the nonattainment area where the proposed new or modified facility is to be located a nd an interstate reciprocal trading agreement is in place. The department’s policy document on an ai r quality impact analysis may be used by an applicant to perform a case specific contribution demonstration.

(2) Proposed new or modified facility located in an attainment area of the state within the ozone transport region. An emission offset of VOC or NO x may be obtained from any location within the ozonePage 40 of 124 transport region. Such an offset may also be obtained from another state in the ozone transport region, provided that an interstate reciprocal trading agreement is in place.

Subpart 231-6 Modifications to Existing Major Facilities in Nonattainment Areas and Attainment Areas of the State within the Ozone Transport Region Section 231-6.1 Applicability 231-6.2 Netting 231-6.3 Permit application content 231-6.4 Permit content and terms of issuance 231-6.5 Lowest achievable emission rate, LAER 231-6.6 Emission offset requirements 231-6.7 Internal offsets, severe ozone nonattainment area only

231-6.1 Applicability. The requirements of this Subpart a pply to the construction and/or operation of any proposed modification at an existing major facility located in a nonattainment area, or an attainment area of the state within the ozone transport region as follows:

(a) For a modification with a project emission poten tial, calculated utilizing projected actual emissions, which does not equal or exceed the applicable significant pr oject threshold in Table 3 or Table 4 of Subpart 231-13 of this Part, the facility owner or operator must comp ly with the provisions of Section 231-11.2 of this Part.

(b) For a modification with a project emission potential which equals or exceeds the applicable significantPage 41 of 124 project threshold in Table 3 or Table 4 of Subpart 231-13 of this Part, but does not result in a NSR major modification, the facility owner or operator must comply with the provisions of Section 231-6.2 of this Part.

(c) For a modification which the facility determines will result in a NSR major modification, the facility owner or operator must comply with the provisions of this Subpart as appropriate.

(d) Special applicability rules for modifications of existing major facilities in severe ozone nonattainment

areas. (1) Modifications of facilities emitting less than 100 tpy. In the case of any major facility of
VOC or NO x (other than a facility which emits or has the potential to emit 100 tpy or more of VOC or
NO x ), whenever any modification at the facility results in an NSR major modification of VOC or NO x from any discrete operation, emissi on source, or other regulated NSR contaminant emitting activity at the facility, such emission increase shall be considered as a modification for purposes of requiring a permit under this Part, except that such increase shall not be considered a modification for such purposes if the owner or operator of the facility elects to offset the emission increase by a greater reduction in emissions of
VOC or NO x , as applicable, from other operations, emission sources, or activities within the facility at an internal offset ratio of at least 1.3 to one. If the owner or operator does not make such election, the modification shall be considered an NSR major modi fication for such purposes, but in applying control requirements, BACT shall be substituted for LAER.

(2) Modifications of facilities emitting 100 tpy or more . In the case of any ma jor facility of VOC or
NO x which emits or has the potential to emit 100 tpy or more of VOC or NO x whenever any modification at the facility results in an NSR major modification of VOC or NO x from any discrete operation, emission source, or other contaminant emitting activity at the f acility, such emission increase shall be considered aPage 42 of 124 modification for purposes of requiring a permit under this Part, except that if the owner or operator of the facility elects to offset the emission increase by a greater reduction in emissions of VOC or NO x , as applicable, from other operations, emi ssion sources, or activities within the facility at an internal offset ratio of at least 1.3 to 1, the requirements of LAER shall not apply.

231-6.2 Netting. This section sets forth the procedures for a voiding a NSR major modification where the proposed modification exceeds the significant project threshold(s) but does not result in a significant net emission increase.

(a) General requirements.

(1) A net emission increase determination shall be confined to the appropriate contemporaneous period for a proposed modification.

(2) Any ERC which is used in a net emission incr ease determination must have physically occurred on or after the applicable date listed in Subdivision 231-5.5(c) of this Part.

(3) A net emission increase determination will only be allowed at an existing major facility.

(4) Any creditable emission increase or ERC mu st be of the same class of nonattainment contaminant.

(5) Any creditable emission increase or ERC which is used in a net emissi on increase determination must occur at the same major facility as the proposed modification.Page 43 of 124 (6) Any creditable emission increase from an emi ssion source issued a permit for which an emission offset or an internal offset was obtained, shall not be considered in any subsequent net emission increase determination.

(b) Permit requirements for netting. A facility owner or operator which proposes a modification that does not result in a significant net emission increase, must:

(1) apply for and obtain a permit which establishes an emission limit that equa ls the projected actual emissions or potential to emit, as appropriate, of the modification of each nonattainment contaminant(s) which exceed(s) the applicable significant project threshold.

(2) apply for and obtain a permit which establishe s the ERCs relied on for the net emission increase determination, if the ERCs are not already approved by the department.

(3) submit a Use of Emission Reduction Credits Form (duly completed and signed by the applicant) for each source of ERC’s to be used for netting. U pon issuance of the permit fo r the proposed modification, the ERC Registry will be amended to reflect that the ERCs have been committed to the proposed modification.

(4) apply for and obtain a permit which complies with any additional requirements of Subpart 231- 11 of this Part.

(c) Re-evaluation of a prior net emission increase determ ination at a facility that was not significant. ThePage 44 of 124 facility owner or operator must reevaluate the determina tion of the net emission increase of a prior modification which did not result in a significan t net emission increase if a proposed modification will commence operation within the contemporaneous period of the prior modificati on. The facility owner or ope rator must recalculate the net emission increase of the prior modification at the facility by including the project emission potential of the proposed modification as a creditable emission increase. If the recalculated net emi ssion increase of the prior modification results in a significant net emission increase, taking into account the proposed modification, the facility owner or operator must select one of the following options:

(1) Submit a permit application and accept a cond ition prohibiting the proposed modification from commencing operation until after the close of the contemporaneous period for the previously permitted modification; or

(2) Create additional ERCs according to the provisions of Subpart 231-10 of this Part at the facility in an amount which ensures that the net emission increase of the prior modification, after taking into account the creditable emission increase of the proposed modi fication does not result in a significant net emission increase; or

(3) Submit an application requesting modification of the permit for the prior modification which reflects the applicability of this Subpart. The facility owner or operator may not begin actual construction of the prior modification or begin operation until the depa rtment approves the application and issues a permit which incorporates the requirements of this Subpart.

231-6.3 Permit application content. The information required in a permit application is set fo rth in Part 201 of this Title and generally in SubpartPage 45 of 124 231-11 of this Part. The following information must also be included at the time a permit application is submitted to the department for a modification which results in a NSR major modification, unless otherwise specified:

(a) A certification that all emission sources which are pa rt of any major facility located in New York State and under the applicant's ownership or control (or under the ownership or control of any entity which controls, is controlled by, or has common control with the applicant) are in compliance, or are on a schedule for compliance, with all applicable emission limitations and standards under Chapter III of this Title.

(b) An analysis of alternative sites, sizes, production processes, and environmenta l control techniques which demonstrates that benefits of the proposed project or proposed major facility significantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification within New York
State.

(c) A LAER analysis in accordance with Section 231-6.5 of this Part.

(d) Emission offset and internal offset information for VOC or NO x . At the time of the initial permit application or before the department issues a final perm it determination for a NSR major modification, the applicant must submit:

(1) a list which identifies the source(s) of certified or proposed ERCs of VOC or NO x that will be used as an internal offset or required emission offset . This list must include the name and location of the facility, DEC identification number, if applicable, and the emission reduction mechanism (i.e., facility shutdown, emission unit shutdown, source reduction, cu rtailment, over-control of emissions beyond an applicable limit). All the proposed ERCs must be cer tified prior to the issuance of the final permit; andPage 46 of 124 (2) a Use of Emission Reduction Credits Form (dul y completed and signed by the applicant and an authorized representative of the ERC seller) to the department for each ERC source listed in Subparagraph 231-6.3(d)(1) of this Section. U pon issuance of the permit for the proposed modification, the NYS ERC Registry will be amended to reflect that the ERCs are committed as an internal offset or emission offset ,as applicable, to the proposed modification; and

(3) for emissions of VOC or NO x in an ozone nonattainment area, documentation of compliance with the contribution demonstration required according to the department’s policy documents on air quality impact analyses pursuant to Subpart 231-12 of this Part.

(e) Emission offset information for PM-10 and PM-2.5. The following information must be submitted at the time of the initial permit application for a NSR major modification:

(1) A list which identifies the sour ce(s) of certified or proposed ERCs of PM-10 or PM-2.5 that will be used as required emission offsets. This list mu st include the name and location of the facility, DEC identification number, if applicab le, and the emission reduction mechan ism (i.e., facility shutdown, emission unit shutdown, source reduction, curtailment, over-control of emissions beyond an applicable limit).

(2) A Use of Emission Reduction Credits Form (dul y completed and signed by the applicant and an authorized representative of the ERC seller) for each ERC source listed in Subparagraph 231-6.3(e)(1) of this Section. Upon issuance of th e permit for the proposed modification, the NYS ERC Registry will be amended to reflect that the ERCs are committed as emission offsets to the proposed modification.Page 47 of 124 (3) An air quality impact evaluation in accordance with the provisions of Subdivision 231-6.6(d) and Subpart 231-12 of this Part and the department’s policy documents on air quality impact analyses.

231-6.4 Permit content and terms of issuance . The permit content and terms of i ssuance for an NSR major modification are set forth generally in Subpart 231-11 of this Part. In addition, the following provisions apply:

(a) The following emission limitations, as applicable, shall be established in a permit: (1) The projected actual emissions or potential to emit, as appropriate, of each applicable nonattainment contaminant(s) for a proposed NSR major modification;

(2) Any LAER limitation.

(b) A revised air quality impact evaluation must be subm itted if the internal offset or emission offset list changes after the department provides a Notice of Complete Application in accordance with Part 621 of this Title, and a supplemental public notice must be provided in accordance with Subdivision 231-6.4(c) of this Part.

(c) Supplemental public notice requirements for ERCs used as an internal offset or emission offset.

(1) A supplemental public notice is required prior to final permit issuance, if the list of ERCs provided as internal offsets or emission offsets is changed or finalized after the da te the Notice of Complete Application. Such notice will be provided in accordance with Part 621 of this Title.

(2) A permit modification and supplemental public noti ce are required if the lis t of ERCs is changedPage 48 of 124 after final permit issuance. Such notice will be pr ovided in accordance with Part 621 of this Title. (d) A petition for party status pursuant to the supplemen tal notice provisions based on an offer of proof that raises substantive and significan t issues related to internal offset or emission offset requirements of this Part will not be considered as late filed petitions for party status pursuant to Part 624 of this Title.

(e) Offset confirmation prior to the commencement of operation. At least 60 days prior to the date a proposed modification commences operation, the permittee must submit an application to the department if there are any proposed changes to the appr oved list of internal offset or emission offset sources included in the permit for that facility. For each such change, the applicant must subm it another Use of Emission Reduction Credits Form signed by the applicant and an authorized representative of the new offset source.

(f) Future ERCs. The permittee must submit prior to permit issuance a copy of each modified permit establishing future ERCs and a letter to the department stating that the future reductions have physically occurred. The letter shall be submitted as follows:

(1) no less than 10 working days prior to the date the proposed new or modified facility commences operation, except for a functional replacement of an existing emission source(s); or

(2) by the conclusion of the facility shakedown period, as identified under Section 231-3.9 of this Part, for a functional replacement of an existing emission source(s).

(g) Canceled or abandoned projects. Prior to the commencement of operation, a facility owner or operator may notify the department of their inte ntion to abandon the project and request a return of ERCs committed for use as an internal offset or emissi on offset. Following the department = s approval of such request and rescission of thePage 49 of 124 permit, the department will return the unused ERCs to the ERC Registry. 231-6.5 Lowest achievable emission rate, LAER. (a) For a proposed NSR major modification, LAER is required for each emission source which emits the applicable nonattainment contaminant.

(b) In establishing the final LAER limit, the departme nt may consider any new in formation, including recent permit decisions, or public comment received, subsequent to the submittal of a complete application.

(c) LAER is not to be established in final form until the final permit for the propos ed modification is issued.

231-6.6 Emission offset requirements. (a) Emission offset applicability. For a NSR major modification, the project emission potential must be offset.

(b) Offset ratio.

(1) An emission offset of VOC or NO x must exceed the corresponding project emission potential, subsequent to application of LAER, by the applicable offset ratio specified in Subpart 231-13 of this Part. A greater offset ratio may be required, on a case by cas e basis, to provide an acceptable contribution demonstration as set forth in this section.

(2) An emission offset of PM-10 or PM-2.5 must at least equal (offset ratio of one to one or greater) the corresponding project emission potential (subsequent to application of LAER), as indicated in Subpart 231-13 of this Part. A greater offset ratio may be requi red to provide a net air quality benefit as set forth inPage 50 of 124 this section. (c) Use of an ERC as an emission offset. An ERC mu st meet the following requirements to be used as an emission offset: (1) For NO x , PM-10, and VOC emissions, ERCs must have physically occurred on or after November 15, 1990 but need not be contemporaneous;

(2) For PM-2.5 emissions, ERCs must have physi cally occurred on or after April 5, 2005 but need not be contemporaneous;

(3) An ERC, or portion thereof, must be esta blished in the permit for the proposed NSR major modification for which the reduction is used.

(d) Net air quality benefit and emission offset location for PM-10 or PM-2.5. An emission offset of PM-10 or PM-2.5 must meet the following requirements:

(1) Contribution demonstration. An emission offs et may be obtained from the same nonattainment area in which a proposed NSR major modification is to be located. An emission offs et may also be obtained from other nonattainment areas of equal or higher cl assification if emissions from such other areas contribute to a violation of the NAAQS for PM-10 or PM-2.5 in the nonattainment area where the proposed NSR major modification is to be located.

(2) Net air quality benefit demonstration. As part of a permit application, the applicant must submit an air quality impact evaluation in accordance with department’s policy document on air quality impact analysis provisions. The ambient air quality impact analysis must demonstrate that:Page 51 of 124 (i) the net impact of the proposed emissions increase and the emission offset provides for a net benefit, on balance, in the area affected by the proposed NSR major modification; and

(ii) for PM-10 only, the net impact in no case exceeds an applicable significant impact level set forth in Section 231-12.6 of this Part.

(3) Interstate offsets. An emission offset of PM-10 or PM-2.5, from areas of equal or higher classification may be obtained from another state, provide d that an interstate reciprocal trading agreement is in place and the requirements of Paragraphs (1) and (2) of this Subdivision are met.

(e) Ozone nonattainment and emission offset locati on. The department’s policy document on air quality impact analysis must be used by an a pplicant to find default acceptable VOC or NO x offset source locations within New York State or to perform a case specific contribu tion demonstration. An emi ssion offset of VOC or NO x is subject to the following:

(1) Proposed NSR major modification located in an ozone nonattainment area.

(i) Intrastate offset sources. An emission offset of VOC or NO x be obtained from:

(‘a’) the same ozone nonattainment area, or

(‘b’) other ozone nonattainment areas of equa l or higher classification, if emissions from such other areas contribute to a viola tion of the NAAQS for ozone in the nonattainmentPage 52 of 124 area where the proposed NSR major modification is to be located. (ii) Interstate offset sources. An emissi on offset may be obtai ned from other ozone nonattainment areas of equal or higher classification in another state, if emissions from such other areas contribute to a violation of the NAAQS for ozone in the nonattainment area where the proposed NSR major modification is to be located a nd an interstate reciprocal trading agreement is in place. The department’s policy document on an air quality impact analysis may be used by an applicant to perform a case specific contribution demonstration.

(2) Proposed NSR major modification located in an attainment area of the state within the ozone transport region. An emission offset of VOC or NO x may be obtained from any location within the ozone transport region. Such an offset may also be obtaine d from another state in the ozone transport region, provided that an interstate reciprocal trading agreement is in place.

231-6.7 Internal offset requirements, severe ozone nonattainment area only. This section represents a mechanis m for avoiding a determina tion of applicability of this Part, for emissions of VOC or NO x in the severe ozone nonattainment area only, in those instances where an NSR major modification is proposed at an existing major facility and a net emission increase determination of non-applicability is not possible.

(a) Internal offset applicability. An internal offset shall be considered for purposes of determining applicability or degree of control required under Section 231-6.1(d)(1) or (2) of this Part for a proposed NSR major modification.

(b) Use of a NO x or VOC ERC as part of an internal offset. An ERC shall meet the following conditions to be used as part of an internal offset:Page 53 of 124 (1) An ERC shall come from an emission source within the same existing major facility as a proposed NSR major modification.

(2) An ERC shall have physically occurred on or after November 15, 1990, but need not be contemporaneous with a proposed NSR major modification for which the reduction is used.

(3) An ERC, or portion thereof, shall be described as a special condition in the permit for the proposed NSR major modification for which the reduction is used.

Subpart 231-7 New Major Facilities and Modifications to Existing Non-major Facilities in Attainment Areas (Prevention of Significant Deterioration)

Section 231-7.1 Applicability 231-7.2 Pre-application analysis 231-7.3 Permit application content 231-7.4 General requirements 231-7.5 Permit content and terms of issuance 231-7.6 Best available control technology (BACT)

231-7.1 Applicability. (a) The requirements of this Subpart apply in attainment areas of the State to the construction and/or operation of:Page 54 of 124 (1) any proposed facility which has the potential to emit a regulated NSR contaminant in an amount that equals or exceeds the major facility threshold, in Table 5 of Subpart 231-13 of this Part, for that contaminant; or

(2) a modification to an existing non-major facility which has a project emission potential for any regulated NSR contaminant that equa ls or exceeds the major facility threshold, in Table 5 of Subpart 231-13 of this Part, for that contaminant.

(b) An existing non-major facility that is located in an attainment area of the State which proposes a modification that has a project emission potential for any regulated NSR contaminant th at does not equal or exceed the applicable major facility threshold, but would resu lt in the facility becoming a major facility for such contaminant, is not subject to review under this Subpart. However, the facility owner or operator must apply for and obtain a permit in accordance with Part 201 of this Title and the permit must contain an emission limit(s) equal to the potential to emit of the emission source(s) affected by the modification.

231-7.2 Pre-application analysis. Prior to submitting a permit application, the facility owne r or operator must comply with the requirements of Section 231-12.3 (Pre-application analysis for Subparts 231-7 and 231-8) of this Part.

231-7.3 Permit application content. The information required in a permit application is set forth in Part 201 of this Title and generally in Subpart 231-11 of this Part. In addition, the following information must be included with the pe rmit application at the time the application is submitted to the department, unless otherwise specified:Page 55 of 124 (a) Air quality impact analyses according to Subpart 231-12 of this Part.

(b) A BACT review in accordance with Section 231-7.6 of this Part.

(c) Source impact analysis. The applicant must de monstrate according to the provisions of Subpart 231-12 (Ambient Air Quality Impact Analysis) of this Part th at allowable emission increases from the proposed new or modified facility, in conjunction with all other applicable emissions increases or reductions (including secondary emissions), would not cause or significantly contribute to air pollution in violation of:

(1) any national ambient air quality standard in any air quality control region.

(2) any applicable maximum allowable increase over the baseline concentration in any area.

(3) any other applicable requirements identifie d in Subpart 231-12, and Paragraph 231-7.4(f)(3) of this Part including visibility and Air Quality Related Va lue (AQRV) analyses for Federal Class I areas, as applicable.

(d) Source information. The applicant must submit all information necessary to perform any analysis or make any determination required under this section and Subpart 231-12 of this Part, including:

(1) a detailed description as to what system of continuous emission reduction is planned for the facility, emission estimates, and any other information n ecessary to determine that best available control technology would be applied.Page 56 of 124 (2) information on the air quality impacts, and th e nature and extent of any or all general commercial, residential, industrial, and other grow th which has occurred since August 7, 1977, in the area the facility would affect, upon request of the department.

(3) a demonstration of the stack height, consis tent with good engineering practice pursuant to 40 CFR 51.100(ii) and Section 231-7.4(e) of this Part.

(e) Additional impact analyses.

(1) The owner or operator must provide an analys is of the impairment to visibility, soils and vegetation that would occur as a result of the proposed new or modified facility, and general commercial, residential, industrial and other growth associated with the proposed new or modified facility. The owner or operator does not have to provide an analysis of the impact on vegetation if the vegetation has no ecological or significant commercial or recreational value.

(2) The owner or operator must provide an analysis of the air quality impact projected for the area as a result of general commercial, residential, industrial and other growth associated with the proposed new or modified facility.

231-7.4 General requirements. The following provisions are also applicable for the review of applications under this Subpart.

(a) Ambient air increments. Concentration limitations nece ssary to assure that in areas designated as FederalPage 57 of 124 Class I, Class II, or Class III, increases in any re gulated NSR contaminant concentration over the baseline concentration do not exceed those listed in Subpart 231-12 of this Part.

(b) Ambient air ceilings. For any regulated NSR contam inant for a period of exposure, no concentration of that regulated NSR contaminant is allowed to exceed the lower of the following: (1) The concentration permitted under the national secondary ambient air quality standard, or

(2) The concentration permitted under the national primary ambient air quality standard.

(c) Restrictions on area classifications and redesignation.

(1) All areas of the State are designated Class II as identified in department policy documents, but may be redesignated as provided in this subdivision.

(2) The following areas may be redesignated only as Federal Class I:

(i) An area which as of August 7, 1977, exceed ed 10,000 acres in size and was a national monument, a national primitive area, a national preser ve, a national recreational area, a national wild and scenic river, a national wildlife refuge, a national lakeshore or seashore; and

(ii) A national park or national wilderne ss area established after August 7, 1977, which exceeds 10,000 acres in size.

(3) The State may submit to the administrator a propos al to redesignate areas in the State as Class IPage 58 of 124 according to the provisions established by 40 CFR Part 51.166. (d) Exclusions from increment consumption.

(1) The following concentrations must be exclude d in determining compliance with the maximum allowable ambient air increment:

(i) Concentrations attributable to the increase in emissions from facilities which have converted from the use of petroleum products, natura l gas, or both by reason of an order in effect under section 2 (a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding Federal legislation) over the emissions from such facilities before the effective date of such an order.

(ii) Concentrations attributable to the increase in emissions from facilities which have converted from using natural gas by reason of any a pplicable natural gas curtailment plan in effect pursuant to the Federal Power Act (or any other s uperseding federal legislation) over the emissions from such facilities before the effective date of such plan.

(iii) Concentrations attributable to the incr ease in emissions from construction of other temporary emission related activities at the facility.

(iv) Increase in concentrations attributable to new facilities outside the United States over the concentrations attributable to existing facilitie s which are included in the baseline concentration.

(v) For Subparagraphs (i) and (ii) above, no exclusion of such concentrations applies morePage 59 of 124 than two years after the e ffective date which is applicable. If both such order and plan are applicable, no such exclusion applies more than five years after the later of such effective dates.

(2) Concentrations attributable to the temporary increase in emissions of SO 2 , PM, or NO x from facilities which are limited to less than one year in duration are excluded, provided the department:

(i) approves the time over which the te mporary emissions increase of SO 2 , PM, or NO x would

occur.

(ii) specifies that the time period for excluding ce rtain contributions in accordance with this subdivision, is not renewable.

(iii) allows no emissions increase from a facility which would:

(‘a’) impact a Federal Class I area or an ar ea where an applicable increment is known to be violated; or

(‘b’) cause a violation or contribute to a known violation of a national ambient air quality standard.

(iv) requires limitations to be in effect at th e end of the time period specified in accordance with this subdivision, which would ensure that the emissions levels from facilities would not exceed those levels occurring from such facilities before the exclusion was approved.Page 60 of 124 (e) Stack heights. The degree of emission limitation re quired for control of any regulated NSR contaminant under this Subpart must not be affected in any manner by:

(1) a stack height, not in exis tence before December 31, 1970, as exceeds good engineering practice, pursuant to 40 CFR 51.100(ii); or

(2) any other dispersion technique not implemented before December 31, 1970.

(f) Requirements for sources impacting Federal Class I areas:

(1) Notice to EPA and Federal Land Manager. The depa rtment or the applicant, at the request of the department, shall submit a copy of the permit applicati on and all relevant information to the EPA Region 2 office and the Federal Land Manager within 30 days of receipt of the application.

(2) Federal Land Manager. The Federal Land Manage r and the Federal official charged with direct responsibility for management of such lands have an affirmative responsibility to protect the AQRVs (including visibility) of such lands and to consider, in consultation with the department, whether a proposed new or modified facility will have an adverse impact on such values.

(3) Visibility analysis and AQRV analysis. The depa rtment must consider any analysis performed by the Federal Land Manager, provided prior to the date of publication of the draft permit that shows that a proposed new major facility may have an adverse impact on visibility or other AQRV in any Federal Class I area. Where the department finds that such an anal ysis does not demonstrate to the satisfaction of the department that an adverse impact on visibility or other AQRV will result in the Federal Class I area, thePage 61 of 124 department must, in the notice of public hearing on the permit application, either explain its decision or give notice as to where the explanation can be obtained.

(4) Denial of a permit based on adverse impact on AQRVs. The Federal Land Manager of any such lands may demonstrate to the departme nt that the emissions from a proposed new or modified facility would have an adverse impact on the AQRVs (including visib ility) of those lands, notwithstanding that the change in air quality resulting from emissions from the propos ed new or modified facility would not cause or significantly contribute to concentrations which w ould exceed the maximum allowable increases for a Federal Class I area. If the department concurs with such demonstration, then it must not issue the permit.

(5) Federal Class I variances. The owner or opera tor of a proposed new or modified facility may demonstrate to the Federal Land Manager that the emi ssions from the new or modified facility would have no adverse impact on the air quality related values (i ncluding visibility) of any such lands, notwithstanding that the change in air quality resulting from emissions from the new or modified facility would cause or contribute to concentrations which would exceed the maximum allowable increases for a Federal Class I area. If the Federal Land Manager concurs with such demonstration and so certifies, provided that the applicable requirements of this sec tion are otherwise met, the State may issue the permit with such emission limitations as may be necessary to assure that emissions of SO 2 , PM, and NO x would not exceed the maximum allowable increases over minor source baseline concentration as listed in Table 7 of Subpart 231- 13 of this Part.

(6) SO 2 variance by Governor of the Federal Class I ar ea with Federal Land Manager's concurrence. The owner or operator of a proposed new or modifi ed facility which cannot be approved under Paragraph 231-7.4(f)(4) of this Subdivision may demonstrate to the Governor of the Federal Class I area that the newPage 62 of 124 or modified facility cannot be constructed by reason of any maximum allowable increase for SO 2 for a period of 24 hours or less applicable to any Federal Cla ss I area, and that a variance under this clause would not adversely affect the air quality related values of the area (including visibility). The Governor of the Federal Class I area, after consideration of the Federal Land Manager's recommendation (if any) and subject to his concurrence, may, after notice and public hear ing, grant a variance from such maximum allowable increase. If such variance is granted, the department will issue a permit to the new or modified facility, provided that the applicable requirements of this Subpart are otherwise met.

231-7.5 Permit content and terms of issuance. The permit content and terms of issuance are set forth generally in Subpart 231-11. In addition, the following emission limitations, as applicable, shall be established in a permit:

(a) The potential to emit of a proposed facility.

(b) The potential to emit of a modification at an ex isting non-major facility which has a project emission potential for any regulated NSR contaminant that exceeds the major facility threshold for that contaminant.

(c) Any BACT limitations.

231-7.6 Best available control technology, BACT. (a) For a proposed new or modified facility, BACT is re quired for each emission source that is part of the proposed new facility or modification, for all regulated NSR contaminants to be emitted by the proposed new facility or modification which equal or exceed the appli cable significant project threshold listed in Table 6 of Subpart 231-13 of this Part.Page 63 of 124 (b) For phased construction projects, the determinati on of BACT must be reviewed and modified as appropriate at the latest reasonable time which occurs no later than 18 months prior to commencement of construction of each independent phase of the project. At such time, the applicant may be required to demonstrate the adequacy of any previous determination of BACT for the new or modified facility.

(c) In establishing the final BACT limit, the departme nt may consider any new in formation, including recent permit decisions, or public comment received, subsequent to the submittal of a complete application.

(d) BACT will not be established in final form until the final permit is issued.

Subpart 231-8 Modifications to Existing Major Facilitie s in Attainment Areas (Prevention of Significant Deterioration)

Section 231-8.1 Applicability 231-8.2 Netting 231-8.3 Pre-application analysis 231-8.4 Permit application content 231-8.5 General requirements 231-8.6 Permit content and terms of issuance 231-8.7 Best available control technology, BACT

231-8.1 Applicability.Page 64 of 124 The requirements of this Subpart a pply to the construction and/or operation of any proposed modification at an existing major facility located in an attainment area of the State as follows:

(a) For a modification with a project emission poten tial, calculated utilizing projected actual emissions, which does not equal or exceed the appli cable significant project threshold in Table 6 of Subpart 231-13 of this Part, the facility owner or operator must comply with the provisions of Section 231-11.2 of this Part.

(b) For a modification with a project emission potential which equals or exceeds the applicable significant project threshold in Table 6 of Subpart 231-13 of this Part, but does not result in a NSR major modification, the facility owner or operator must comply with the provisions of Section 231-8.2 of this Part.

(c) For a modification which the facility determines will result in a NSR major modification, the facility owner or operator must comply with the provisions of this Subpart as appropriate.

231-8.2 Netting. This section sets forth the procedures for a voiding a NSR major modification where the proposed modification exceeds the significant project threshold(s) but does not result in a significant net emission increase.

(a) General requirements.

(1) A net emission increase determination shall be confined to the appropriate contemporaneous period for a proposed modification.

(2) A net emission increase determination will only be allowed at an existing major facility.Page 65 of 124 (3) Any creditable emission increase or ERC must be of the same class of regulated NSR contaminant.

(4) Any creditable emission increase or ERC which is used in a net emissi on increase determination must occur at the same major facility as the proposed modification.

(b) Permit requirements for netting. A facility owner or operator which proposes a modification that does not result in a significant net emission increase, must:

(1) apply for and obtain a permit which establishes an emission limit that equa ls the projected actual emissions or potential to emit, as appropriate, of th e modification of each regulated NSR contaminant(s) which exceed(s) the applicable significant project threshold.

(2) apply for and obtain a permit which establishe s the ERCs relied on for the net emission increase determination, if the ERCs are not already approved by the department.

(3) submit a Use of Emission Reduction Credits Form (duly completed and signed by the applicant) for each source of ERCs to be used for netting.

(4) apply for and obtain a permit which complies with any additional requirements of Subpart 231- 11 of this Part.

(c) Re-evaluation of a prior net emission increase determ ination at a facility that was not significant. ThePage 66 of 124 facility owner or operator must reevaluate the determina tion of the net emission increase of a prior modification which did not result in a significan t net emission increase if a proposed modification will commence operation within the contemporaneous period of the prior modificati on. The facility owner or ope rator must recalculate the net emission increase of the prior modification at the facility by including the project emission potential of the proposed modification as a creditable emission increase. If the recalculated net emi ssion increase of the prior modification results in a significant net emission increase, taking into account the proposed modification, the facility owner or operator must select one of the following options: (1) Submit a permit application and accept a cond ition prohibiting the proposed modification from commencing operation until after the close of the contemporaneous period for the previously permitted modification; or

(2) Create additional ERCs according to the provisions of Subpart 231-10 of this Part at the facility in an amount which ensures that the net emission increase of the prior modification, after taking into account the creditable emission increase of the proposed modi fication does not result in a significant net emission increase; or

(3) Submit an application requesting modification of the permit for the prior modification which reflects applicability of this Subpart. The facility owner or operator may not begin actual construction of the prior modification or begin operation until the department approves the application and issues a permit which incorporates the requirements of this Subpart.

231-8.3 Pre-application analysis. Prior to submitting a permit application, the facility owne r or operator must comply with the requirements of Section 231-12.3 (Pre-application analysis for Subparts 231-7 and 231-8) of this Part.Page 67 of 124 231-8.4 Permit application content. The information required in a permit application is set forth in Part 201 of this Title and generally in Subpart 231-11 of this Part. In addition, the following information must be included with the permit application for a NSR major modification, at the time the application is submitted to the department, unless otherwise specified:

(a) An air quality impact analyses according to Subpart 231-12 of this Part.

(b) A BACT review in accordance with Section 231-8.7 of this Part.

(c) Source impact analysis. The applicant must de monstrate according to the provisions of Subpart 231-12 (Ambient Air Quality Impact Analysis) of this Part that allowable emission increases from the proposed modification, in conjunction with all other applicable emissions increases or reductions (including secondary emissions), would not cause or significantly contribute to air pollution in violation of:

(1) any national ambient air quality standard in any air quality control region.

(2) any applicable maximum allowable increase over the baseline concentration in any area.

(3) any other applicable requirements identifie d in Subpart 231-12, and Paragraph 231-8.5(f)(3) of this Part including visibility and Air Quality Related Va lue (AQRV) analyses for Federal Class I areas, as applicable.

(d) Source information. The applicant must submit all information necessary to perform any analysis orPage 68 of 124 make any determination required under this section and Subpart 231-12 of this Part, including: (1) a detailed description as to what system of continuous emission reduction is planned for the facility, emission estimates, and any other information n ecessary to determine that best available control technology would be applied.

(2) information on the air quality impacts, and th e nature and extent of any or all general commercial, residential, industrial, and other grow th which has occurred since August 7, 1977, in the area the facility would affect, upon request of the department.

(3) a demonstration of the stack height, consis tent with good engineering practice pursuant to 40 CFR 51.100(ii) and Section 231-8.5(e) of this Part.

(e) Additional impact analyses.

(1) The owner or operator must provide an analys is of the impairment to visibility, soils and vegetation that would occur as a result of the proposed modification, and general commercial, residential, industrial and other growth associated with the propos ed modification. The owner or operator does not have to provide an analysis of the impact on vegetati on if the vegetation has no ecological or significant commercial or recreational value.

(2) The owner or operator must provide an analysis of the air quality impact projected for the area as a result of general commercial, residential, industr ial and other growth associated with the proposed modification.Page 69 of 124 231-8.5 General requirements. The following provisions are also applicable for the review of applications under this Subpart.

(a) Ambient air increments. Concentration limitations nece ssary to assure that in areas designated as Federal Class I, Class II, or Class III, increases in any re gulated NSR contaminant concentration over the baseline concentration do not exceed those listed in Subpart 231-12 of this Part.

(b) Ambient air ceilings. For any regulated NSR contam inant for a period of exposure, no concentration of that regulated NSR contaminant is allowed to exceed the lower of the following:

(1) The concentration permitted under the national secondary ambient air quality standard, or

(2) The concentration permitted under the national primary ambient air quality standard.

(c) Restrictions on area classifications and Redesignation.

(1) All areas of the State are designated Class II as identified in department policy documents, but may be redesignated as provided in this Subdivision.

(2) The following areas may be redesignated only as Federal Class I:

(i) An area which as of August 7, 1977, exceed ed 10,000 acres in size and was a national monument, a national primitive area, a national preser ve, a national recreational area, a national wildPage 70 of 124 and scenic river, a national wildlife refuge, a national lakeshore or seashore; and (ii) A national park or national wilderne ss area established after August 7, 1977, which exceeds 10,000 acres in size.

(3) The State may submit to the administrator a propos al to redesignate areas in the State as Class I according to the provisions established by 40 CFR Part 51.166.

(d) Exclusions from increment consumption.

(1) The following concentrations must be exclude d in determining compliance with the maximum allowable ambient air increment:

(i) Concentrations attributable to the increase in emissions from facilities which have converted from the use of petroleum products, natura l gas, or both by reason of an order in effect under section 2 (a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding federal legislation) over the emissi ons from such facilities before the effective date of such an order.

(ii) Concentrations attributable to the increase in emissions from facilities which have converted from using natural gas by reason of any a pplicable natural gas curtailment plan in effect pursuant to the Federal Power Act (or any other s uperseding federal legislation) over the emissions from such facilities before the effective date of such plan.

(iii) Concentrations attributable to the incr ease in emissions from construction of otherPage 71 of 124 temporary emission related activities at the facility. (iv) Increase in concentrations attributable to new facilities outside the United States over the concentrations attributable to existing facilities which are included in the baseline concentration.

(v) For Subparagraphs (i) and (ii) above, no exclusion of such concentrations applies more than two years after the effective date which is applicable. If both such order and plan are applicable, no such exclusion applies more than five years after the later of such effective dates.

(2) Concentrations attributable to the temporary increase in emissions of SO 2 , PM, or NO x from facilities which are limited to less than one year in duration are excluded, provided the department:

(i) approves the time over which the te mporary emissions increase of SO 2 , PM, or NO x would occur.

(ii) specifies that the time period for excluding certain contributions in accordance with this subdivision, is not renewable.

(iii) allows no emissions increase from a facility which would:

(‘a’) impact a Federal Class I area or an ar ea where an applicable increment is known to be violated; or

(‘b’) cause a violation or contribute to a known violation of a national ambient air quality standard.Page 72 of 124 (iv) requires limitations to be in effect at th e end of the time period specified in accordance with this subdivision, which would ensure that th e emissions levels from facilities would not exceed those levels occurring from such facilities before the exclusion was approved.

(e) Stack heights. The degree of emission limitation re quired for control of any regulated NSR contaminant under this Subpart must not be affected in any manner by:

(1) a stack height, not in exis tence before December 31, 1970, as exceeds good engineering practice, pursuant to 40 CFR 51.100(ii); or

(2) any other dispersion technique not implemented before December 31, 1970.

(f) Requirements for sources impacting Federal Class I areas:

(1) Notice to EPA and Federal Land Manager. The depa rtment or the applicant, at the request of the department, shall submit a copy of the permit applicati on and all relevant information to the EPA Region 2 office and the Federal Land Manager within 30 days of receipt of the application.

(2) Federal Land Manager. The Federal Land Manage r and the Federal official charged with direct responsibility for management of such lands have an affirmative responsibility to protect the AQRVs (including visibility) of such lands and to consider, in consultation with the department, whether a proposed new or modified facility will have an adverse impact on such values.Page 73 of 124 (3) Visibility analysis and AQRV analysis. The depa rtment must consider any analysis performed by the Federal Land Manager, provided prior to the date of publication of the draft permit that shows that a proposed new major facility may have an adverse impact on visibility or other AQRV in any Federal Class I area. Where the department finds that such an anal ysis does not demonstrate to the satisfaction of the department that an adverse impact on visibility or other AQRV will result in the Federal Class I area, the department must, in the notice of public hearing on the permit application, either explain its decision or give notice as to where the explanation can be obtained.

(4) Denial of a permit based on adverse impact on AQRVs. The Federal Land Manager of any such lands may demonstrate to the departme nt that the emissions from a proposed new or modified facility would have an adverse impact on the AQRVs (including visib ility) of those lands, notwithstanding that the change in air quality resulting from emissions from the propos ed new or modified facility would not cause or significantly contribute to concentrations which w ould exceed the maximum allowable increases for a Federal Class I area. If the department concurs with such demonstration, then it must not issue the permit.

(5) Federal Class I variances. The owner or opera tor of a proposed new or modified facility may demonstrate to the Federal Land Manager that the emi ssions from the new or modified facility would have no adverse impact on the air quality related values (i ncluding visibility) of any such lands, notwithstanding that the change in air quality resulting from emissions from the new or modified facility would cause or contribute to concentrations which would exceed the maximum allowable increases for a Federal Class I area. If the Federal Land Manager concurs with such demonstration and so certifies, provided that the applicable requirements of this sec tion are otherwise met, the State may issue the permit with such emission limitations as may be necessary to assure that emissions of SO 2 , PM, and NO x would not exceed the maximum allowable increases over minor source baseline concentration as listed in Table 7 of Subpart 231-Page 74 of 124 13 of this Part. (6) SO 2 variance by Governor of the Federal Class I ar ea with Federal Land Manager's concurrence. The owner or operator of a proposed new or modifi ed facility which cannot be approved under Paragraph 231-8.5(f)(4) of this Subdivision may demonstrate to the Governor of the Federal Class I area that the new or modified facility cannot be constructed by reason of any maximum allowable increase for SO 2 for a period of 24 hours or less applicable to any Federal Cla ss I area, and that a variance under this Clause would not adversely affect the air quality related values of the area (including visibility). The Governor of the Federal Class I area, after consideration of the Federal Land Manager's recommendation (if any) and subject to his concurrence, may, after notice and public hear ing, grant a variance from such maximum allowable increase. If such variance is granted, the department will issue a permit to the new or modified facility, provided that the applicable requirements of this Subpart are otherwise met.

231-8.6 Permit content and terms of issuance. The permit content and terms of issuance for a NSR ma jor modification are set forth generally in Subpart 231-11 of this Part. In addition, the following emission limita tions, as applicable, shall be established in a permit:

(a) The projected actual emissions or potential to emit, as appropriate of each applicable regulated NSR contaminant(s) for a proposed NSR major modification.

(b) Any BACT limitations.

231-8.7 Best available control technology, BACT. (a) For a proposed NSR major modification BACT is requi red for each emission source that is part of the proposed modification, for all regulated NSR contaminants to be emitted by the proposed modification which equalPage 75 of 124 or exceed the applicable significant project threshol d listed in Table 6 of Subpart 231-13 of this Part. (b) For phased construction projects, the determina tion of BACT must be reviewed and modified as appropriate at the latest reasonable time which occurs no later than 18 months prior to commencement of construction of each independent phase of the project. At such time, the applicant may be required to demonstrate the adequacy of any previous determination of BACT for the modification.

(c) In establishing the final BACT limit, the departme nt may consider any new in formation, including recent permit decisions, or public comment received, subsequent to the submittal of a complete application.

(d) BACT will not be established in final form until the final permit is issued.

Subpart 231-9 Plantwide Applicability Limitation (PAL). Section 231-9.1 General provisions 231-9.2 Permit application requirements 231-9.3 Permit processing 231-9.4 Setting the initial PAL 231-9.5 Permit contents 231-9.6 Permit modifications and reopenings 231-9.7 PAL renewals and expirations

231-9.1 General provisions. (a) Upon request of an app licant, the department shall establish a PAL at an existing major facility, provided that at a minimum, the following provisions are met:Page 76 of 124 (1) The PAL must impose a facility -wide annual emission limitation in tpy that is included in the Part 201 permit for the facility.

(i) For each month during the PAL effective pe riod after the first 12 months following the PAL effective date, the facility must show that the sum of the monthly emissions from each emission source under the PAL for the previous 12 consecutive months is less than the PAL (a 12-month total rolled monthly).

(ii) For each month during the first 11 months following the PAL effective date, the facility must demonstrate that the sum of the preceding m onthly emissions from the PAL effective date for each emission source under the PAL is less than the PAL.

(2) The PAL must include fugitive emissions, to th e extent quantifiable, from all emission sources that emit or have the potential to emit the PAL contaminant.

(3) Each PAL shall establish an emission limit for only one PAL contaminant.

(4) Each PAL shall have a PAL effective period as defined in Section 231-4.1 of this Part.

(5) At no time (during or after the PAL effective period) are emissions reductions of a PAL contaminant that occur during the PAL effective period creditable as decreases for purposes of establishing emission offsets under this Part unless the level of the PAL is reduced by the amount of such emissions reductions and such reductions would be creditable in the absence of the PAL.Page 77 of 124 (b) Any physical change or change in the method of operation of a major facility that maintains its total facility wide emissions below the PAL level, and is otherw ise consistent with the requi rements of this Subpart, will not be considered a NSR major modification for the PAL contaminant and is not subject to this Part.

(c) A facility must continue to comply with all app licable requirements, includi ng any terms and conditions of the facility = s Part 201 permit that were in effect prior to the effective date of the PAL.

231-9.2 Permit application requirements. As part of a permit application requesting a PAL, th e owner or operator of a major facility must submit the following information:

(a) A list of all emission sources at the facility.

(b) For each emission source:

(1) The potential to emit of the PAL contaminant.

(2) The applicable requirements for that emission source.

(3) The baseline actual emissions (with supporting documentation).

(c) The methodology that the facility is proposing to us e for conversion of the monitoring system data to monthly and annual emissions based on a 12-month rolling total for each month.Page 78 of 124 (d) If the applicant seeks to utilize Section 231-9.4(e)(2) of this Part as the basis for calculating the reduced PAL level, the applicant shall provide, as applicable, a BACT review in accordance with Section 231-8.7 of this Part and/or a LAER analysis in accordance with Section 231-6.5 of this Part.

231-9.3 Permit Processing. (a) A permit application requesting the establishm ent of a PAL will be tr eated as a major permit modification for the Title V permit and be processed in acco rdance with the procedures in Parts 201 and 621 of this Title.

(b) A request to renew a PAL must be included in th e application to renew the Title V permit and will be processed in accordance with the procedures in Parts 201 and 621 of this Title.

231-9.4 Setting the initial PAL. The PAL for a facility must be calculated as th e sum of the baseline actual emissions of the PAL contaminant for each emission source at the facility plus an amount equal to the applicable significant project threshold for the PAL contaminant under Subpart 231-13 of this Part or under the Act, whichever is lower.

(a) When establishing the PAL for a particular PAL contaminant, only one 24 consecutive month period may be used to determine the baseline actual emissions for all emission sources. However, a different 24 consecutive month period may be used for each different PAL contaminant.

(b) Emissions associated with emission sources that were permanently shut down after this 24 consecutive month period must be subtracted from the PAL calculation.Page 79 of 124 (c) Emissions from a permitted emission source or an exempt or trivial emission source on which actual construction began after the 24 consecutive month period, but has not yet commenced operation, must be added to the PAL calculation in an amount equal to the potential to emit of the emission source.

(d) Where the department is aware of any future appli cable requirement(s), prior to issuance of the permit which establishes the PAL, the department will specify a reduced PAL in the permit to become effective on the future compliance date(s) of the applicable requirement(s). For example, if the fac ility will be required to reduce emissions from industrial boilers in half from baseline emissions of 60 ppm NO x to a new rule limit of 30 ppm, the permit must contain a future effective PAL that is equal to the current PAL reduced by half of the original baseline emissions of such emission source(s).

(e) Commencing with the first day of the sixth year of the PAL, the PAL shall be reduced as follows:

(1) The PAL level shall be reduced to 75 percen t of the initial PAL level unless the owner or operator demonstrates that a lesser level of reducti on is justified in accordance with Paragraph (2).

(2) The owner or operator may seek an alternativ e reduced PAL level by demonstrating, at the time of application for the PAL, that application of BA CT and/or LAER (depending on whether attainment or nonattainment requirements apply) on all major PAL emission sources at the facility would not result in a 25 percent reduction in the initial PAL level, assuming operation of those major PAL emission sources at full capacity. In its application for a PAL, the owner or ope rator shall provide, as app licable, a BACT review in accordance with Section 231-8.7 of this Part and/or a LAER analysis in accordan ce with Section 231-6.5 of this Part. Based on the information provided, the de partment may, in its sole discretion, authorize aPage 80 of 124 reduction in the PAL to a level that would reflect the emissions from the facility if all major PAL emission sources are operated at full capacity after complying w ith BACT and/or LAER, as applicable. In making these determinations, emissions from minor PAL emissi ons sources shall be held constant at the initial baseline levels. In no event shall the reduced PAL le vel calculated in this paragraph exceed the initial PAL level set in Subdivisions (a) through (d) of this Section.

231-9.5 Permit contents. The following terms and conditions, at a minimum, must be included in a permit which establishes a PAL:

(a) The PAL contaminant, the applicable facility-w ide emission limitation in tpy, and required monitoring provisions consistent with this section.

(b) The effective date of the permit and the expi ration date of the PAL (PAL effective period).

(c) The emissions calculations to be used for co mpliance purposes. These calculations must include emissions from start-ups, shutdowns, and malfunctions.

(d) The procedures to convert the monitoring system data to monthly emissions and annual emissions based on a 12-month rolling total as required by this Subpart.

(e) Monitoring requirements.

(1) General requirements.Page 81 of 124 (i) A requirement that the monitoring system accu rately determines facility emissions of the PAL contaminant in terms of mass per unit of time according to the criteria contained in the following Paragraphs as applicable.

(ii) The PAL monitoring system must employ one or more of the four monitoring approaches meeting the minimum requirements set forth in Para graph 231-9.5(e)(2) of this Part. If the facility utilizes CEMS to monitor a particular contaminan t for which a PAL is sought , the facility must use the CEMS to monitor that contaminant.

(2) Minimum performance requirements for approved monitoring approaches. The following are acceptable monitoring approaches when conducted in accordance with the minimum requirements in Paragraphs 231-9.5(e)(3) through (9) of this Part:

(i) Mass balance calculations for activities using coatings or solvents.

(ii) CEMS.

(iii) Other monitoring systems as approved by the department.

(iv) Emission factors.

(3) Mass balance calculations. A facility usi ng mass balance calculations to monitor PAL contaminant emissions from activities using coating or solvents must meet the following requirements:Page 82 of 124 (i) Provide a demonstrated means of validati ng the published content of the PAL contaminant that is contained in or created by all materials used in or at the emission source. (ii) Assume that the emission source emits all the PAL contaminant that is contained in or created by any raw material or fuel used in or at the emission source, if it cannot otherwise be accounted for in the process.

(iii) Where the vendor of a material or fuel, which is used in or at the emission source, publishes a range of contaminant content from such material, the facility must use the highest value of the range to calculate the PAL contaminant emissions unless the department determines there is site-specific data or a site-specific monitoring program to support another content within the range.

(4) CEMS. A facility using CEMS to monitor PA L contaminant emissions must meet the following requirements:

(i) CEMS must comply with applicable Perf ormance Specifications found in 40 CFR Part 60, appendix B.

(ii) CEMS must sample, analyze and record da ta at least every 15 minutes while the emission source is operating.

(5) Other monitoring systems. A facility usi ng other monitoring systems to monitor PAL contaminant emissions must meet the following requirements:

(i) The monitoring system must be based on current site-specific data demonstrating aPage 83 of 124 correlation between the monitored parameter(s) a nd the PAL contaminant emissions across the range of operation of the emission source. (ii) Each monitoring system must sample, analy ze, and record data at least every 15 minutes, or at another less frequent interval approved by the department, while the emission source is operating.

(6) Emission factors. A facility using emission f actors to monitor PAL contaminant emissions must meet the following requirements:

(i) All emission factors must be adjusted, if appropriate, to account for the degree of uncertainty or limitations in the factors development.

(ii) The emission source must operate within the designated range of use for the emission factor, if applicable.

(iii) If technically practicable, any facility w ith a significant PAL emission source that relies on an emission factor to calculate PAL contamin ant emissions must conduct validation testing to determine a site-specific emission factor within si x months of permit issuan ce, unless the department determines that testing is not required.

(7) A facility owner or operator must record and report maximum potential emissions without considering enforceable emission limitations or operati onal restrictions for an emission source during any period of time that there is no monitoring data, unless another method for determin ing emissions during such periods is specified in the permit.Page 84 of 124 (8) Notwithstanding the requirements in Subdivisi ons 231-9.5(e)(3) through (7) of this Part, where an owner or operator of a facility cannot demonstrat e a correlation between the monitored parameter(s) and the PAL contaminant emissions rate at all operating points of the emission source, the department must include in the permit default value(s) for determ ining compliance with the PAL based on the highest potential emissions reasonably estimated at such opera ting point(s). Alternatively, the department must determine that operation of the emission source during circumstances where there is no correlation between monitored parameter(s) and the PAL contaminant emissions is a violation of the PAL.

(9) Re-validation. All data used to establish the PAL contaminant must be re-validated through performance testing or other scientifically valid m eans approved by the department. Such testing must occur at least once every five years after issuance of the PAL.

(f) Recordkeeping requirements.

(1) The facility must retain a copy of all reco rds necessary to determine compliance with any requirement of this Subpart and of the PAL, including a determination of each emission source = s 12-month rolling total emissions, for five years from the date of such record.

(2) The facility must retain a copy of the followi ng records for the duration of the PAL effective period plus five years:

(i) A copy of the permit application and any applications for revisions to the PAL.Page 85 of 124 (ii) Each annual certification of compliance pursu ant to Part 201 of this Title and the data relied on for such certification. (3) The records must be maintained on-site or at an alternative location approved by the department. Such records may be retained in an electronic format.

(g) Reporting and notification requirements. Semi-a nnual monitoring reports and prompt deviation reports must be submitted to the department. The reports must m eet the requirements in this section and Subpart 231-11 of this Part.

(1) Semi-annual report. The semi-annual report must be submitted to the department within 30 days of the end of each reporting period, and include the following:

(i) Total annual emissions (tons/year) based on a 12-month rolling total for each month in the reporting period recorded pursuant to Section 231-9.5(f)(1) of this Part.

(ii) All data relied upon, including, but not lim ited to, any Quality Assurance or Quality Control data, in calculating the monthly and annual PAL contaminant emissions.

(iii) A list of any emission sources modified or added to the major facility during the preceding six-month period.

(iv) The number, duration, and cause of any de viations or monitoring malfunctions (other than the time associated with zero and span calibration checks), and any corrective action taken.Page 86 of 124 (v) A notification of a shutdown of any m onitoring system, whether the shutdown was permanent or temporary, the reason for the shutdown, the anticipated date that the monitoring system will be fully operational or replaced with another monitoring system, and whether the emission source monitored by the monitoring system continued to operate, and the calculation of the emissions of the PAL contaminant or the number determined by method included in the permit, as provided by Subdivision 231-9.5(e)(7) of this Part.

(2) Deviation report. The major facility owner or operator must promptly submit a report of any deviations or exceedance of the PAL requirements, in cluding periods where no monitoring is available. The deviation report must be submitted within the time limits prescribed by Part 201 of this Title and the Title V permit. A deviation report submitted in accordan ce with Subpart 201-6 of this Title will satisfy this reporting requirement. The report must contain, am ong other information required under Subpart 201-6 of this Title, identification of the owner or operator, the PAL requirement that experienced the deviation or that was exceeded, emissions resulting from the devia tion or exceedance, and a signed statement by the responsible official as defined by the applicab le Title V permit certifying the truth, accuracy, and completeness of the information contained in the report.

(3) Re-validation results. The owner or operator mustsubmit to the department the results of any revalidation test or method within three months after completion of such test or method.

(h) Provisions which implement the monitoring, recordkeeping, and reporting and notification requirements contained in this Subpart and any other requirements that the department deems necessary to implement and enforce the PAL.Page 87 of 124 231-9.6 Permit modifications and reopenings. (a) Permit reopening to revise a PAL. The following pr ovisions apply to permit reopenings to revise a PAL. (1) During the PAL effective period, the department must reopen the permit to:

(i) correct typographical/calculation errors made in setting the PAL or reflect a more accurate determination of emissions used to establish the PAL.

(ii) reduce the PAL if the facility creates cred itable emissions reductions for use as emission offsets under this Part.

(iii) revise the PAL to reflect an increas e in the PAL as provided under Subdivision 231- 9.6(b) of this Part.

(2) The department retains discretion to reopen the permit for the following:

(i) Reduce the PAL to reflect new applicable requirements with compliance dates after the PAL effective date.

(ii) Reduce the PAL consistent with any other requirement the State may impose on the major facility under the State Implementation Plan.

(iii) Reduce the PAL if the department determ ines that a reduction is necessary to avoid causing or contributing to a NAAQS or PSD increment violation, or to an adverse impact on an air quality related value that has been identified fo r a Federal Class I area by a Federal Land ManagerPage 88 of 124 and for which information is available to the general public.

(3) Except for permit reopenings for the correction of typographical or calcula tion errors that do not increase the PAL, all other reopenings must be proce ssed in accordance with the pr ocedures in Parts 201 and 621 of this Title for a major permit modification.

(b) Increasing a PAL during the PAL effective period.

(1) Upon request of an applicant, the departme nt may increase a PAL during the PAL effective period provided all of the following provisions are met:

(i) A complete application for a significant Part 201 of this Title permit modification is submitted in accordance with the provisions of Part s 201 and 621 of this Title requesting an increase in the PAL. Such application must identify the emission source(s) which will have additional emissions that will cause the emissions of the facility to equal or exceed its current PAL.

(ii) As part of this application, the facility must demonstrate that the sum of the following two items will exceed the existing PAL:

(‘a’) For all new or modified emission sour ces, the sum of the potential to emit of each emission source; and

(‘b’) For all other emission sources:Page 89 of 124 ‘(1)’ the sum of baseline actual emissi ons of all the minor PAL emission sources; and ‘(2)’ the sum of baseline actual emissions of all the significant and major PAL emission sources assuming application of BACT or LAER equivalent controls as appropriate.

The level of control that would result fr om the application of BACT or LAER equivalent controls on each significant or ma jor emission source must be determined by conducting a new BACT or LAER analysis at the time the application is submitted, unless the emission source is currently required to comp ly with a BACT or LAER requirement that was established within the preceding 10 years. In such a case, the assumed control level for that emission source must be equal to the leve l of BACT or LAER w ith which that emission source must currently comply.

(iii) The facility must obtain a permit modifi cation that includes all emission source(s) identified in Subparagraph 231-9.6(b)(1)(i) of this Title, regardless of the magnitude of the emissions increase resulting from them. These emission source(s) must continue to comply with any other applicable requirements contained in the Pa rt 201 of this Title permit even though they have also become subject to the PAL or continue to be subject to the PAL.

(2) Permit contents. The following provisions, in a ddition to the other require ments of this Subpart, must be included in the permit authorizing the increased PAL:

(i) A provision that the increased PAL will be effective on the date any emission source thatPage 90 of 124 is part of the PAL modification becomes operational and begins to emit the PAL contaminant.

(ii) The new PAL shall be calculated as the sum of the facility potential to emit for each proposed new or modified emissi on source, plus the sum of the baseline actual emissions of the significant and major emission sources (assuming application of BACT or LAER equivalent controls as determined in accordance with Subparagraph 231-9.6[ b][1][ii]) of this Part, plus the sum of the baseline actual emissions of each minor PAL emission source.

231-9.7 PAL renewals and expirations. (a) Permit renewal where PAL is not renewed. The fo llowing provisions set forth the requirements for an application to renew a Title V permit where a PAL will expire at the end of the PAL effective period and the facility has not included a request to renew the PA L in such application. The facility must continue to comply with the PAL until such time as the department issues a renewed Title V permit.

(1) Application Content. In addition to any othe r information required pursuan t to this Chapter, the Title V permit application must include a proposed a llowable emission limitation fo r each emission source. Such emission limitations must be calculated by dist ributing the PAL of the facility among each emission source that is subject to an emission limitation under the PAL and must be adjusted to reflect any applicable requirements that became effective during the PAL effec tive period if the PAL was not previously adjusted.

(2) Permit Content. In addition to any other requi rements of this Chapter, a Title V permit issued following the expiration of a PAL shall include the following provisions:

(i) Emission limits for each emission source on a 12-month rolling basis. The allowablePage 91 of 124 emission limits shall be established in accordance with a distribution of the PAL that the department determines is appropriate. (ii) A facility must demonstr ate compliance with the allowable emission limitation(s) through the use of CEMS or other monitoring systems (s ource testing, emission factors, etc.) as the department may approve.

(b) Permit renewal where a PAL is renewed.

(1) Application deadline. The application deadlines for renewal of the Title V permits in Part 201 of this Title shall govern the application to renew a PAL.

(2) Application content. The application to rene w a permit with a PAL must contain the following information:

(i) The information required in Subdivisions 231-9.2(a) through (c) of this Part.

(ii) A proposed PAL.

(iii) The sum of the potential to emit of a ll emission sources subject to the PAL with supporting documentation.

(iv) Any other relevant information the owne r or operator submits to the department for consideration in determining the appropriate level for renewing the PAL.Page 92 of 124 (3) PAL adjustment. In determining whether and how to adjust the PAL, the department must consider the options outlined below. All adjustments must comply with Subparagraph (iii) below. (i) If the emissions level calculated in acco rdance with Subdivisions 231-9.4(a) through (d) of this Part is equal to or greater than 80 percent of the level of the existing PAL at the time of renewal, the department may renew the PAL at the same level, without considering the factors set forth in Subparagraph (ii) below; or

(ii) The department may set the PAL at a level that the department determines is more representative of the baseline actual emissions of th e facility, or is more appropriate considering air quality needs, advances in control technology, anticip ated economic growth in the area, desire to reward or encourage voluntary emissions reductions at the facility, or other factors as specifically identified by the department.

(iii) Notwithstanding Subparagraphs (i) and (ii) above:

(‘a’) if the potential to emit of the facility is less than the PAL, the department must adjust the PAL to a level no greater than the potential to emit of the facility; and

(‘b’) the department cannot approve a rene wed PAL higher than the current PAL, unless the facility has complied with the provi sions of Section 231-9.6(b) of this Part.

(iv) Subdivision 231-9.4(e) of this Part is inapplicable to the renewal of a PAL.

(4) If the compliance date for an applicable requi rement occurs during the PAL effective period, andPage 93 of 124 the department has not already adjusted the PAL to re flect such requirement, the PAL must be adjusted at the time of permit renewal. Subpart 231-10 Emission Reduction Credits (ERCs) Section 231-10.1 General provisions 231-10.2 Determination of ERCs 231-10.3 Applications for ERC approval 231-10.4 Permit application processing 231-10.5 Permit requirements 231-10.6 ERC registry 231-10.7 Mobile source and demand side management ERCs 231-10.8 Replacement and relocation of emission sources

231-10.1 General provisions. (a) An ERC may be used in a net emission increase dete rmination, internal offset, or as an emission offset.

(b) An ERC may be used as an internal offset or emission offset, as applicable, without time limit or restriction within New York State. In another State in the Ozone Transport Region, an ERC may be used as an emission offset in accordance with that State = s requirements if New York State ha s established a reciprocal trading agreement with that State.

(c) An ERC must be the same type of regulated NS R contaminant as the emission increase requiring ERCs. For example, only a particulate form of emission reduction is allowed to be used as an emission offset or in netting for new particulate emissions.Page 94 of 124 (d) An ERC may include emission reductions from cont rol or elimination of fugitive emissions, provided these emissions are contained in the New York State emissions inventory.

(e) An ERC, or portion thereof, which was used to avoid a determination of a significant net emission increase, as an internal offset, or as an emission offset cannot subsequently be used for demonstrating attainment with ambient air quality standards or reasonable further progress in a federally approved SIP.

(f) An ERC, or portion thereof, which was used to avoid a determination of a significant net emission increase, cannot subsequently be used as an internal offset, emission offset, or in any subsequent netting determinations.

(g) An ERC, or portion thereof, which was used as an internal offset or an emission offset cannot be used again for any purpose.

(h) An ERC of NO x , PM-10, or VOC used as an emission offset or for netting, for compliance with Subparts 231-5 or 231- 6 of this Part, must have physically occurred on or after November 15, 1990 but need not be contemporaneous.

(i) An ERC of PM-2.5 used as an emission offset or for netting, for compliance with Subparts 231-5 or 231- 6 of this Part, must have physically occurred on or after April 5, 2005 but need not be contemporaneous.

(j) An ERC used as an internal offset for NO x or VOC emissions must have physically occurred on or after November 15, 1990 but need not be contemporaneous.Page 95 of 124 (k) The department will approve applications for ERCs submitted on or after the effective date of this regulation on an emission source basis. Applications submitted prior to the effective date of this regulation will be processed according to the provisions of Subpart 231-2 of this Part.

(l) ERCs may be created from past or future emi ssion reductions resulting from facility shutdown, emission source shutdown, curtailment, emission source reduction, ove r-control of emissions beyond an applicable limit, or any other reduction mechanism acceptable to the department.

(m) The department may approve future emission re ductions only if they are designated for a specific facility. The facility seeking to establish the future emission reductions must submit an application to the department for modification of its Part 201 permit. The pe rmit of the facility proposing to use the future emission reductions must identify the source(s) of the reductions. The permit of the facility establishing the future emission reductions is subject to modification by the department to remove the approval of the future emission reductions if the facility proposing to use the future emission reducti ons does not commence construc tion within the time period specified in this Part, or if the a pplicant notifies the department of its intent to abandon the proposed new or modified facility and the applicant surrenders the permit prior to commencement of operation.

(n) Emission reductions resulting from the shutdown of an unpermitted emission source which was subject to the requirement to obtain a permit pursuant to Part 201 of this Title will not be certified as ERCs.

(o) Unpermitted emission sources that are operational may be considered for ERCs in accordance with this Part subsequent to being permitted in accordance with Part 201 of this Title.Page 96 of 124 231-10.2 Determination of ERCs. Any decrease in emissions of a regulated NSR contaminant, in tpy, which:

(a) is surplus, quantifiable, permanent, enforceable, and included in a Part 201 permit; and

(b) will result or resulted from a physical change in, or a change in the method of operation of an emission source subject to Part 201of this Title:

(1) is quantified as the difference between baseline actual and the subsequent potential to emit.

(2) is certified in accordance with the provisions of this Part; or

(c) will result or resulted from a physical change in, or a change in the method of operation of an emission source not subject to Part 201 of this Title, and is certified in accordance with the provisions of this Part.

231-10.3 Applications for ERC approval. This section applies to applications for ERCs at sources subject to Part 201.

(a) Application procedures.

(1) For approval of ERCs from a facility subject to Subpart 201-5 or Subpart 201-6 of this Title, other than a facility shutdown, the facility owner or operator must submit an application for a permit modification.Page 97 of 124 (2) For approval of ERCs from a registered fac ility, other than a facility shutdown, the owner or operator must apply for a state facility permit.

(3) For approval of ERC = s as a result of shutdown of a facility subject to Subpart 201-5 or Subpart 201-6 of this Title, the facility owner or operator must submit a written request to the department to discontinue the permit.

(4) For approval of ERC = s as a result of shutdown of a regist ered facility, the facility owner or operator must submit a written request to the department to discontinue the registration.

(b) Application Content. A permit application involvi ng ERCs must include the following information:

(1) The signature of a responsible official or other representative authorized to act on behalf of the facility with respect to the ERCs.

(2) A complete "Emission Reduction Credit Quan tification Form" with supporting documentation establishing that the emission reduction is surplus, quantifiable, permanent and enforceable:

(i) Surplus. The applicant must demonstrate to the satisfaction of the department that the emission reduction for an emission source is in ex cess of any reduction required by RACT or MACT or any other regulations applicable to the emi ssion source during the baselin e period for the emission reduction. The determination of "surplus" is as follows:Page 98 of 124 (‘a’) For an emission reduction which physically occurred prior to the state or federal register publication date proposing RACT or MA CT requirements, the applicant is eligible for the full amount of the reduction. Otherwise, the applicant is eligible only for the baseline actual emissions reflecting RACT or MACT emission limits.

(‘b’) For a future reduction as defined in this Part, if the date of approval of the ERC is prior to the state or federal register publication date proposing RACT or MACT requirements, then the applicant is eligible for the full amount of the reduction. Otherwise, the applicant is eligible only for the baselin e actual emissions reflecting RACT or MACT emission limits.

(ii) Quantifiable. The applicant must us e a reliable basis for quantifying the reduction. Continuous emissions monitoring (CEM) data or stack test data approved by the department must be used if the facility is required to generate such data. Emission statemen ts, EPA's AP-42 emission factors, and fuel and solvent purchase records, with department approval, are acceptable bases for quantifying baseline actual emissions if an applican t demonstrates to the department’s satisfaction that CEM or stack test data are not available a nd that CEM or stack test data was not a permit requirement.

(iii) Permanent. The applicant must demonstrate to the satisfaction of the department that all emission reductions will be permanent.

(iv) Enforceable.Page 99 of 124 (‘a’) For a facility which submits a written re quest to the department to discontinue its permit or registration (facility shutdown) pursuant to this section, no further action is required.

(‘b’) For an emission source shutdown where the facility will continue to operate, the applicant must apply for and obtain a permit modification in accordance with this section which reflects the permanent shutdown of the emission source through a permit condition prohibiting operation of the emission source, or physically removes the emission source from the permit. As to emission sources which will continue to operate at the facility, the applicant must submit for department a pproval a monitoring, recordkeeping, and reporting strategy that will be used to de monstrate that the emission reductions are verifiable. If approvable, the department will include terms and conditi ons in the operating permit which implement the applicant’s strategy. If the department determ ines the strategy is inco mplete or otherwise not approvable, the department may propose terms and conditions for the permit or as part of proposed single source SIP revi sion as appropriate to ensure that the emission reductions are verifiable.

(‘c’) Any permit modification must be processed in accordance with Subpart 231-10 of this Part.

231-10.4 Permit application processing. (a) Any permit modification, discontinuance of the perm it or proposed SIP revision establishing an ERC will be processed in accordance with Parts 621 and 201 of this Title and subject to a 30 day public comment period. The department will publish notice of such application in th e Environmental Notice Bulletin and the applicant mustPage 100 of 124 publish notice in a local newspaper.

(b) Upon approval of a permit application for a proposed new or modified facility which lists ERC sources for use as emission offsets, the department will publish noti ce of the source of ERCs with the draft permit. If the source of ERCs changes or is approved after the draf t permit has been noticed, the department will publish a supplemental notice of the source of the ERCs prior to the final permit issuance.

(c) The department may deny an application for ERCs if sufficient supporting documentation as required by this section is not submitted or provided upon request.

231-10.5 Permit requirements. This section applies to facilities which create ERCs from emission reductions other than a facility shutdown. In addition to the other requirements of this Part a nd Parts 201 and 621 of this Title, a permit establishing ERCs must include such emission limitations, monitoring, recor dkeeping, and reporting conditions as are necessary to demonstrate that the emission reductions are verifiable and enforceable. Such emission limitations may include a reduction in the hours of operation, limitations on fuel usage, reformulations, installation of control equipment, and/or the making of process changes.

231-10.6 ERC registry. (a) All approved ERCs that may be used as emission offsets will be entered into a listing of available ERCs (designated the ERC Registry) maintained by the department after the department has approved the ERC application in accordance with the procedures in th is Part. In the case of a single source SIP revision, the ERCs will be entered into the registry after EPA has appr oved the SIP revision. The registry may be obtained from the department upon request.Page 101 of 124 (b) ERC transfers. The authorized representative or a responsible official of the transferor (seller) must submit a A Use of Emission Reduction Credits @ form to the department specifying the terms of the transfer. If the department determines that the proposed ERC transfer is approvable, the department w ill note the transfer of ERCs on the registry.

231-10.7 Mobile source and demand side management ERCs. Applications for mobile sources and Demand Side Management ERCs will be approved by the department on a case-by-case basis upon submittal of acceptable protocol s. The department will prepare a SIP revision approval letter which sets for the appropriate enforceable terms and conditions pursuant to which the ERCs are being approved and submit the package as a single source SIP revision to EPA for approval following public notice of the ERCs. Upon approval of the SIP revision by EPA, the department will publish the ERCs in the ERC Registry.

231-10.8 Replacement and relocation of emission sources. (a) ERCs for the replacement of an emission source w ith new similar equipment (connected to the existing stack or a new stack) must be quantified as the difference between:

(1) the baseline actual emissions of the emission source representing the old emission source, and

(2) the future potential to emit of the new emission source.

(b) The relocation of an emission source within the same facility would neither qualify for ERCs for the shutdown of the emission source nor be subject to this S ubpart at the new location. However, the relocation must comply with all other applicable Part s of this Title and result in acceptable air quality impacts pursuant to SectionPage 102 of 124 200.6 of Part 200 of this Title. 231-11 Permit and Reasonable Possibility Requirements Section 231-11.1 Permit requirements for new major facilities, NSR major modifications, and netting 231-11.2 Reasonable Possibility requirements for insignificant modifications

231-11.1 Permit requirements for new major facilities, NSR major modifications, and netting. (a) Permit application requirements. In addition to the application requirements under Part 201 of this Title the following information must be included in the pe rmit application for any new major facility, NSR major modification, or facility netting out of applicability, required to obtain a permit pursuant to this Part:

(1) Project description, location, design cap acity, and typical operating schedule, including specifications and drawings showing its design and the plant layout, as applicable.

(2) A detailed schedule for construction, as applicable.

(3) Applicable calculations and supporting documen tation of potential-to-em it for a new facility, and baseline actual emissions, projected actual emissions or potential-to-emit as applicable, project emission potential and net emissions increase determination for a modified facility. The information submitted must be sufficiently detailed to allow the department to ve rify the emissions calculation(s) and to determine the applicability status of the source with respect to this Part. If the calculation of projected actual emissions excludes emissions which an existing emission s ource could have accommodated during the consecutive 24-month period used to establish the baseline actual emi ssions and that are also unrelated to the particular project, detailed documentation of the calculation of th e excluded emissions must be provided at the time ofPage 103 of 124 permit application in order for the exclusion of t hose emissions to be allowed in determining future compliance.

(4) Proposed emission monitoring, recordkeeping and reporting provisions to establish compliance with the applicable requirements of this Part.

(b) General permit conditions and terms of issuance. Any new major facility, NSR major modification or facility netting out of applicability subject to this Part must comply with the requirements of 6 NYCRR Part 201- 6.5(a) of this Title and the following:

(1) Within 30 days of commencem ent of construction, the applicant must notify the department in writing that construction has begun.

(2) The filing of a request by the permittee for a permit modification or renewal, or of a notification by the permittee of planned changes or anticipated noncompliance does not authorize the permittee to undertake any action without department approval. The permittee shall not begin actual construction or operate a new or modified facility without department approval in accordance with this Chapter. Operation in a manner other than authorized by a permit shall be grounds for enforcement.

(c) Permit conditions for monitoring. Any permit issued in accordance with this Part must include the monitoring provisions required in Subdivision 201-6.5(b) of this Title.

(d) Permit conditions for recordkeeping and reporting of compliance monitoring. Any permit issued in accordance with this Part must include the recordk eeping and reporting of compliance monitoring provisionsPage 104 of 124 required in Subdivision 201-6.5(c) of this Title. (e) Compliance certification. Any permit issued in accord ance with this Part must include the compliance certification provisions required in Subdivision 201-6.5(e) of this Title and, if applicable, submission of documentation that the actual measured emissions less thos e attributed to independent factors such as demand growth are below the permitted projected actual emissions limit.

231-11.2 Reasonable Possibility requirements for insignificant modifications. (a) The requirements of this section do not apply if potential-to-emit is used in lieu of projected actual emissions in determining the project emission potential for a proposed modification.

(b) For a modification with a project emission potentia l which is less than 50 percent of the applicable significant project threshold in Table 3, Table 4 or Table 6 of Subpart 231-13 of this Part , or for a modification with a project emission potential which when added to emissions excluded in accordance with Clause 231- 4.1(b)(40)(i)(c) of this Part is less than 50 percent of the applicable significant project threshold in Table 3, Table 4 or Table 6 of Subpart 231-13 of this Part, the facility owner or operator, in addition to complying with any requirements under Part 201 of this Title, must maintain the following information for a minimum of five years:

(1) A description of the modification.

(2) An identification of each new or modified emission source(s) including the associated processes and emission unit.

(3) The calculation of the project emission poten tial for each modified emission source(s) including supporting documentation.Page 105 of 124 (4) The date the modification commenced operation.

These recordkeeping requirements apply to exempt a nd trivial activities but do not affect their exempt or trivial permitting status under Subpart 201-3 of this Title.

(c) For a modification with a project emission potentia l which is less than 50 percent of the applicable significant project threshold in Table 3, Table 4 or Table 6 of Subpart 231-13 of this Part , but equals or exceeds 50 percent of the applicable significant project threshol d when emissions excluded in accordance with Clause 231- 4.1(b)(40)(i)(c) of this Part are added, or for a modifi cation with a project emission potential which equals or exceeds 50 percent of the applicable significant project th reshold in Table 3, Table 4 or Table 6 of Subpart 231-13 of this Part, the facility owner or ope rator must submit an application to modify the facility permit under the minor permit provisions of Subpart 201-6 of th is Title or obtain a preconstruction permit under the provisions of Subpart 201-6 of this Title, and must:

(1) maintain the following information for a minimum of five years:

(i) a description of the modification.

(ii) an identification of each new or modi fied emission source(s) including the associated processes and emission unit.

(iii) the calculation of the project emissi on potential for each modified emission source(s) including supporting documentation.Page 106 of 124 (iv) the date the modification commenced operation.

(2) monitor the emissions of each regulated NSR contaminant from the emission source(s) that will increase as a result of the modification, and calculate a nd maintain a record of the annual emissions, in tons per year on a calendar year basis, for a period of five years following resumption of regular operations after the modification, or for a period of 10 years following resumption of regular operati ons after the change if the modification increases the design capacity of or potential to emit the regulated NSR contaminant at such emission source(s).

(3) submit a report to the department within 30 da ys after the end of each year during which records must be generated in accordance with Paragraph 231-11.2(c)(2) of this Part. The report must contain:

(i) the name, address, and telephone number of the major facility.

(ii) the annual emissions as calculated pursuant to Paragraph (c)(2) of this Section.

(iii) a comparison of actual annual emissions to the projected actual emissions and, if applicable, an explanation as to why the actual annual emissions exceeded the projected actual emissions.

Subpart 231-12 Ambient Air Quality Impact Analysis This Subpart sets forth the procedures and requirement s for the performance of an air quality impact analysis to determine whether a new or modified facility complie s with quantified air quality levels, including air qualityPage 107 of 124 standards, PSD increments and monitoring deminimis leve ls, Air Quality Related Values, and Significant Impact Levels.

Section 231-12.1 Applicability 231-12.2 Modeling analysis methodologies 231-12.3 Pre-application analysis for Subparts 231-7 and 231-8 231-12.4 Exemption and waiver from on-site (i.e. site specific) air quality monitoring 231-12.5 Post construction monitoring 231-12.6 Significant impact levels in nonattainment areas 231-12.7 Significant impact levels for facilities located in attainment areas 231-12.8 Federal Class I area significant impact levels

231-12.1 Applicability. (a) The following provisions apply to all new facilities or modifications required to evaluate impact on the surrounding areas and the public including, but not limited to am bient and sensitive receptors, public health impacts, nonattainment areas, and Federal Class I areas.

(b) The impact analysis procedures are also appropriate for conducting any required air quality related environmental impact assessments in conjunction with the permit application for the proposed new or modified facility.

231-12.2 Modeling analysis methodologies. (a) The ambient impact analysis must follow the proce dures in the applicable guidelines at 40 CFR Part 51,Page 108 of 124 Appendix W: Guideline on Air Quality Models of the EPA and the NYSDEC Guidelines on Dispersion Modeling Procedures For Air Quality Impact Analysis available from the department.

(b) Where an air quality model specified in appendix W of 40 CFR Part 51 is deemed inappropriate, the model may be modified or another model substituted. Such a modification or substitution of a model may be made on a case-by-case basis or, where appropriate, on a generic basis for a specific program. Written approval from the department must be obtained for any modification or s ubstitution. In addition, use of a modified or substituted model shall be subject to public notice and opportunity fo r public comment, with the determination of a complete permit application, in accordance with Parts 201 and 621 of this Title.

(c) For the purposes of Subparts 231-7 and 231-8 of this Part, the owner or operator of the proposed new or modified facility must demonstrate that allowable emissi on increases from the proposed facility or modification, in conjunction with all other applicable emissions increases or reductions (including secondary emissions) would not, at a minimum, cause or contribute to air pollution in violation of:

(1) any national ambient air quality standard in any air quality control region; and

(2) any applicable maximum allowable PSD increment increase over the baseline concentration in any area, as defined in the following Table:Page 109 of 124 Contaminant Maximum allowable increase (micrograms per cubic meter)

Federal Class I

Particulate matter: PM-10, annual arithmetic mean . . . . . . . . . . . . . . . . . . . 4 PM-10, 24-hr maximum . . . . . . . . . . . . . . . . . . . . . . . . 8 Sulfur dioxide: Annual arithmetic mean . . . . . . . . . . . . . . . . . . . . . . . . 2 24-hr maximum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3-hr maximum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Nitrogen dioxide Annual arithmetic mean . . . . . . . . . . . . . . . . . . . . . . . . . 2.5

Class II

Particulate matter: PM-10, annual arithmetic mean . . . . . . . . . . . . . . . . . . . . 17 PM-10, 24-hr maximum . . . . . . . . . . . . . . . . . . . . . . . . . 30 Sulfur dioxide: Annual arithmetic mean . . . . . . . . . . . . . . . . . . . . . . . . . 20 24-hr maximum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91Page 110 of 124 3-hr maximum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512 Nitrogen dioxide Annual arithmetic mean . . . . . . . . . . . . . . . . . . . . . . . . . 25

Class III

Particulate matter: PM-10, annual arithmetic mean . . . . . . . . . . . . . . . . . . . . 34 PM-10, 24-hr maximum . . . . . . . . . . . . . . . . . . . . . . . . . 60 Sulfur dioxide: Annual arithmetic mean . . . . . . . . . . . . . . . . . . . . . . . . . 40 24-hr maximum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 3-hr maximum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 700 Nitrogen dioxide Annual arithmetic mean . . . . . . . . . . . . . . . . . . . . . . . . . 50

For any period other than an annual period, the applicable maximum allowable increase may be exceeded during one such period per year at any one location.

(3) Quantified Air Quality Related Values (AQRVs ) including visibility for the applicable Federal Class I areas.

(d) The emission rates for any existing emission sources to be used for the analysis of increment increases in Paragraph (c)(2) of this Section can be based on represen tative actual emissions instead of the allowable emissionPage 111 of 124 rates, provided the maximum actual rates under representativ e normal operations are used for short term increments. Any increment expansions analysis for the purposes of Paragraph (c)(2) of this Section must use representative actual short term and annual emissions instead of the allowable emissions.

(e) For the purposes of Subparts 231-5 and 231-6 of this Part, the owner or operator of the proposed new or modified facility must demonstrate that allowable emissi on increases from the proposed new or modified facility would not, at a minimum, cause or contribute to air po llution in violation of any national ambient air quality standard in any non-attainment area in accord with Section 231-12.6 of this Part significance levels.

(f) For the purposes of the required net air quality bene fit analysis of Subparts 231-5 and 231-6 of this Part, the owner or operator of the proposed new or modified f acility must use the allowable emission increases from the proposed new or modified facility. For the impact offsetti ng sources, this analysis must use representative actual short term and annual emissions corresponding to the averag ing times of the standards. The modeling methods for conducting the net air quality benefit analyses are provided in department guidelines on air quality impact analysis.

231-12.3 Pre-application analysis for Subparts 231-7 and 231-8. (a) Prior to submitting an application for a permit in accordance with Subpart 231-7 and Subpart 231-8 of this Part, the applicant must provide an analysis of air quality data in the area that the proposed new or modified facility would affect for each of the following regulated NSR contaminants:

(1) For the new facility, each regulated NSR contamin ant that would have the potential to emit in an amount equal to or greater than the applicable signifi cant project threshold in Table 6 of Subpart 231-13 of this Part.Page 112 of 124 (2) For the modified facility, each regulated NSR c ontaminant that would result in a significant net emissions increase.

(b) With respect to any such regulated NSR contam inant from the list of applicable regulated NSR contaminants in Section 231-12.4 of this Part for which no NAAQS exists, the analysis mu st contain such air quality monitoring data as the department determines is necessa ry to assess ambient air quality for that regulated NSR contaminant in any attainment area that the emissions of the source would affect.

(c) With respect to any such regulated NSR contamin ant for which a NAAQS does exist, the analysis must contain continuous air quality monitoring data gathered fo r purposes of determining whether emissions of that regulated NSR contaminant would cause or contribute to a violation of the standard or any maximum allowable increase in Paragraph 231-12.2(c)(2) of this Part.

(d) In general, the continuous air quality monitoring data that is required must have been gathered over a period of at least one year and must represent at least the year preceding receipt of the application, except that, if the department determines that a complete and adequate analysis can be accomplished with monitoring data gathered over a period shorter than one year, but not less than four months.

(e) The owner or operator of a proposed new or m odified facility involving the emissions of VOC who satisfies all other conditions of Subparts 231-7 and 231-8 of this Part may, when authorized by the department, provide post-approval monitoring data for ozone in lieu of providing preconstruction monitoring data.

(f) Operations of monitoring stations. The owner or ope rator of a new or modified facility must meet the requirements of Appendix B to 40 CFR Part 58 and th e NYSDEC Policy, Oversight of Private Air MonitoringPage 113 of 124 Networks, available from the department, during the opera tion of monitoring stations for purposes of satisfying applicable provisions of this Subpart.

231-12.4 Exemption and waiver from onsite (‘i.e.’ site specific) air quality monitoring. (a) The department may exempt a proposed new or m odified facility from the requirements of Section 231- 12.3 of this Part with respect to monitoring for a particular regulated NSR contaminant, if:

(1) the emissions increase of the regulated NSR contaminant from the proposed new or modified facility would cause, in any attainment area, air quality impacts less than the following deminimis monitoring levels:

Carbon monoxide- - - - - - - - - - - - - 575 μ g/m3, 8-hour average; Nitrogen dioxide - - - - - - - - - - - - - - 14 μ g/m3, annual average; Particulate matter (PM-10)- - - - - - - - 10 μ g/m3, 24-hr average; Sulfur dioxide - - - - - - - - - - - - - - - - 13 μ g/m3, 24-hour average; Ozone ( 1 ) - - - - - - - - - - - - - - - - - - - - see footnote Elemental Lead - - - - - - - - - - - - - - - - 0.1 μ g/m3, 3-month average; Fluorides - - - - - - - - - - - - - - - - - - - - 0.25 μ g/m3, 24-hour average; Total and reduced sulfur - - - - - - - - - 10 μ g/m3, 1-hour average; Hydrogen sulfide - - - - - - - - - - - - - - - 0.2 μ g/m3, 1-hour average;

or

1 No deminimis air quality level is provided for ozone. However, any net increase of 100 tons per year or more of NO x or volatile organic compounds subject to Subpart 231-7 or Subpart 231-8 may be required to gather ambient air quality da ta according to the provisions of Section 231-12.3.Page 114 of 124 (2) the concentrations of the regulated NSR contamin ant in the area that the facility would affect are less than the concentrations listed in Paragraph (1) of this Subdivision.

(b) In cases where the source impacts are above the deminimis monitoring levels of Subpart 231-12.4(a)(1) of this Part, the department may waive the requirements of Section 231-12.3 of this Part with respect to monitoring for a particular regulated NSR contamin ant for which an applicant makes an acceptable showing that representative existing ambient monitori ng data exists in the effected area of the quality and nature which demonstrates the current conditions of the air quality of the area.

231-12.5 Post-construction monitoring. The owner or operator of a new or modified facility may be required, after construction of the facility or modification, to conduct such am bient monitoring as the department determines is necessary to determine the effect of the emissions from the new or modified facility on air quality in any area.

231-12.6 Significant impact levels in nonattainment areas. For the purposes of Subparts 231-5 and 231-6 of this Part, a new or modified facility will be considered to cause or contribute to a violation of a national ambient air quality standard when such new or modified facility would, at a minimum, exceed the following significant impact levels (SILs) at any locality that does not or would not meet the applicable national standard:Page 115 of 124 Short Term Averaging Times (hours) Regulated NSR Contaminant Annual Average 24 8 3 1 SO 2 1.0 μ g/m3 5 μ g/m3 25 μ g/m3 PM-10 1.0 μ g/m3 5 μ g/m3 NO x 1.0 μ g/m3 CO 500 μ g/m3 2000 μ g/m3

231-12.7 Significant impact levels for facilities located in attainment areas. For the purposes of an impact analysis in support of provisions of Subparts 231-7 and 231-8 of this Part, the Significant Impact Levels defined in Section 231-12.6 of this Part will serve to determine whether a new or modified source will have a significant air quality impact or a contribution to potential standards violation or PSD increment exceedances in both the attainment area of the pr oposed project and in any adjacent non-attainment areas. A showing that the maximum impacts from the propos ed new or modified facility for any regulated NSR contaminant are below these Significant Impact Levels will be deemed adequate as the required impact analysis to demonstrate that the source will not contribute to a sta ndards violation or PSD increment exceedance for that regulated NSR contaminant. However, such a demonstra tion will not exclude the performance of any other required impact analysis to satisfy other applicable provisions of Subparts 231-5 to 231-8 of this Part, including the modeling for Air Quality Related Values in Federal Class I areas.

231-12.8 Federal Class I significant impact levels. For the purposes of the PSD increm ent impact analysis in support of provisions of Subparts 231-7 and 231-8 of this Part, the following Significant Impact Levels will be used to determine whether a new or modified facility will have a significant air quality impact in Federal Class I areas:Page 116 of 124 Regulated NSR Contaminant Annual Average 24 hour Average 3 Hour Average

Sulfur Dioxide 0.1 μ g/m3 0.2 μ g/m3 1.0 μ g/m3 Nitrogen Dioxide 0.1 μ g/m3 Not applicable Not Applicable PM-10 0.2 μ g/m3 0.3 μ g/m3 Not applicable CO Not applicable Not applicable Not applicable

A showing that the maximum impacts from the proposed new or modified facility for any regulated NSR contaminant are below these Significant Impact Levels will be deemed adequate as the required impact analysis to demonstrate that the source will not c ontribute to a PSD increment exceedance for that regulated NSR contaminant. However, such a demonstration will not exclude the perfor mance of any other required impact analysis to satisfy other applicable provisions of Subpart s 231-7 to 231-10 of this Part, including the modeling for Air Quality Related Values in Federal Class I areas.

Subpart 231-13 Tables and Emission Thresholds. Section 231-13.1 Table 1 - Major facility thresholds and offset ratios – Ozone nonattainment areas and the ozone transport region.
231-13.2 Table 2 - Major facility thresholds and offset ratios for PM nonattainment areas 231-13.3 Table 3 - Significant project thresholds, si gnificant net emissions increase thresholds, and offset ratios for ozone nonattainment areas and the ozone transport region 231-13.4 Table 4 - Significant project thresholds, si gnificant net emission increase thresholds, and offset ratios for PM nonattainment areas 231-13.5 Table 5 - Major facility thresholds for attainment and unclassified areasPage 117 of 124 231-13.6 Table 6 - Significant project thresholds and significant net emission increase thresholds for attainment and unclassified areas 231-13.7 Table 7 - Federal Class I variance maximum allowable increase concentrations 231-13.8 Table 8 - Maximum allowable increase in SO 2 concentrations for Gubernatorial variances 231-13.9 Table 9 - Source category list

231-13.1 - Table 1 - Major facility thresholds and offset ratios for Ozone nonattainment areas and the ozone transport region
Area/Contaminant Classification Major Facility Threshold (tons per year) 1 Offset Ratio

Marginal, Moderate, or Ozone Transport Region
VOC 50 At least 1.15:1
NO x 100 At least 1.15:1
Severe
VOC 25 At least 1.3:1
NO x 25 At least 1.3:1

1 - tons per year (tpy)

231-13.2 - Table 2 - Major facility thresholds and offset ratios for PM nonattainment areas
Area/Contaminant Classification Major Facility Threshold (tpy) 1 Offset Ratio

ModeratePage 118 of 124 PM-10 100 At least 1:1
No classification
PM-2.5 100 At least 1:1

1 - condensible emissions are to be included.
231-13.3 - Table 3 - Significant project thresholds, significan t net emission increase thresholds, and offset ratios for ozone nonattainment areas and the ozone transport region
Area/Contaminant Classification Significant Project Threshold (tpy) 1 Significant Net Emission
Increase Threshold (tpy) Offset Ratio

Marginal, Moderate, or Ozone Transport Region
VOC 40 40 At least 1.15:1
NO x 40 40 At least 1.15:1
Severe
VOC 2.5 > 25 At least 1.3:1
NO x 2.5 > 25 At least 1.3:1

1 – project emission potential threshold.

231-13.4 - Table 4 - Significant project thresholds, significan t net emission increase thresholds, and offset ratios for PM nonattainment areas
Area/Contaminant Classification Significant Project Threshold (tpy) 1,2 Significant Net Emission Increase Offset RatioPage 119 of 124 Threshold (tpy) 1
Moderate
PM-10 15 15 At least 1:1
No classification
PM-2.5 10 10 At least 1:1

1 - condensible emissions are to be included.

2 - project emission potential threshold.

231-13.5 - Table 5 - Major facility thresholds for attainment and unclassified areas
Contaminant Major Facility Threshold (tpy)
Carbon monoxide 100 1 / 250 Nitrogen oxides 100 / 250
Sulfur dioxide 100 / 250
Particulate matter 100 / 250
Particulate matter: PM-10 emissions 2 100 / 250
Particulate matter: PM-2.5 emissions 2 100 / 250 Ozone: as volatile organic compounds 100 / 250 Lead (elemental) 100 / 250
Fluorides 100 / 250
Sulfuric acid mist 100 / 250 Hydrogen sulfide (H2S) 100 / 250 Total reduced sulfur (including H2S) 100 / 250Page 120 of 124 Reduced sulfur compounds (including H2S) 100 / 250 Municipal waste combustor organics (measured as total tetra through octa-chlorinated dibenzo- p-dioxins and dibenzofurans) 100 / 250

Municipal waste combustor metals (measured as particulate matter) 100 / 250

Municipal waste combustor acid gases (measured as sulfur dioxide and hydrogen chloride) 100 / 250

Municipal solid waste landfills emissions (measured as nonmethane organic compounds) 100 / 250

Any other regulated NSR contaminant 100 / 250

1 - 100 tpy threshold applies if the facility is one of the source categories listed in Section 231-13.9, Table 9

2 - condensible emissions are to be included.

Part 231-13.6 - Table 6 - Significant project thresholds and significant net emission increase thresholds for attainment and unclassified areas
Contaminant Significant Project Threshold 1 / Significant Net Emission Increase Threshold
Carbon monoxide 100 tpy Nitrogen oxides 40 tpy
Sulfur dioxide 40 tpy
Particulate matter 25 tpy
Particulate matter: PM-10 emissions 2 15 tpyPage 121 of 124 Particulate matter: PM-2.5 emissions 2 10 tpy
Ozone: as VOCs or NO x 40 tpy Lead (elemental) 0.6 tpy
Fluorides 3 tpy Sulfuric acid mist 7 tpy Hydrogen sulfide (H2S) 10 tpy Total reduced sulfur (including H2S) 10 tpy Reduced sulfur compounds (including H2S) 10 tpy Municipal waste combustor organics (measured as total tetra through octa-chlorinated dibenzo-p-dioxin and dibenzofurans) 3.2 x 10-6 megagrams per year (3.5 x 10-6 tpy)

Municipal waste combustor metals (measured as particulate matter) 14 megagrams per year (15 tpy)

Municipal waste combustor acid gases (measured as sulfur dioxide and hydrogen chloride) 36 megagrams per year (40 tpy)

Municipal solid waste landfills emissions (measured as nonmethane organic compounds) 45 megagrams per year (50 tpy)

CFC = s 11, 12, 113, 114, 115 Any increase Halons 1211, 1301, 2402 Any increase Any other regulated NSR contaminant Any increase

1 – project emission potential threshold.

2 - condensible emissions are to be included. 231-13.7 - Table 7 - Federal Class I variance maximum allowable increase concentrationsPage 122 of 124 Contaminant Maximum allowable increase (micrograms per cubic meter)
Particulate Matter: PM-10, annual arithmetic mean 17 PM-10, 24-hr maximum 30
Sulfur dioxide:
Annual arithmetic mean 20
24-hr maximum 91
3-hr maximum 325 Nitrogen dioxide:
Annual arithmetic mean 25

1 – condensible emissions are to be included.

231-13.8 - Table 8 - Maximum allowable increase in SO 2 concentrations for Gubernatorial variances

Maximum Allowable Increase (Micrograms per cubic meter)
Terrain areas Period of exposure
Below 900 ft At or Above 900 ft
24-hr maximum 36 62
3-hr maximum 130 221

231-13.9 Table 9 – Source category list. (1) coal cleaning plants (with thermal dryers);Page 123 of 124 (2) kraft pulp mills; (3) portland cement plants; (4) primary zinc smelters; (5) iron and steel mills; (6) primary aluminum ore reduction plants; (7) primary copper smelters; (8) municipal incinerators capable of charging more than 50 tons of refuse per day; (9) hydrofluoric, sulfuric, or nitric acid plants; (10) petroleum refineries; (11) lime plants; (12) phosphate rock processing plants; (13) coke oven batteries; (14) sulfur recovery plants; (15) carbon black plants (furnace process); (16) primary lead smelters; (17) fuel conversion plants; (18) sintering plants; (19) secondary metal production plants; (20) chemical process plants (excluding ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140); (21) fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal units per hour heat input; (22) petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels; (23) taconite ore processing plants;Page 124 of 124 (24) glass fiber processing plants; (25) charcoal production plants; (26) fossil-fuel-fired steam electric plants of mo re than 250 million British thermal units per hour heat input; or (27) all other source categories regulated by a sta ndard under section 111, for which EPA has completed a rule making proceeding under section 302(j) of the act or section 112 of the Act, but only with respect to those air contaminants that have been regulated for th at category as of the effective date of this Part.