Code of Maine Rules
06 - DEPARTMENT OF ENVIRONMENTAL PROTECTION
096 - DEPARTMENT OF ENVIRONMENTAL PROTECTION - GENERAL
Chapter 140 - PART 70 AIR EMISSION LICENSE REGULATIONS
Section 096-140-3 - Renewal of a Part 70 License and the Initial Part 70 Licenses

Universal Citation: 06 ME Code Rules ยง 096-140-3

Current through 2024-38, September 18, 2024

A. Applicability. The following procedures shall be used for sources applying for an initial Part 70 license and for the renewal of a Part 70 license or a lapsed Part 70 license.

B. Schedule

(1) If the applicant is applying for a renewal of a Part 70 license, an application must be submitted at least six months, but no earlier than 18 months prior to the date of expiration of the Part 70 license.

(2) If the applicant is applying for an initial Part 70 license, an application must be submitted within one year of commencing operations as provided in 40 C.F.R. Part 70.5.

C. Application Notification

(1) The applicant shall give public Notice of Intent to File as stated in subsection 2(D) of this Chapter.

(2) A copy of the application shall be submitted by the source to EPA Region I.

D. Required Application Information

For an initial Part 70 license and a renewal of a Part 70 license, the applicant shall submit to the Department the information listed below:

(1) For an initial Part 70 license the application form and information as specified in subsection 2(B) of this Chapter containing all required information;

(2) For a renewal of a Part 70 license, the application forms and information as specified in subsection 2(B) of this Chapter containing all required information and, if applicable, the current compliance assurance monitoring (CAM) plan;

(3) A Best Practical Treatment analysis as described below:
(a) Best Practical Treatment (BPT). Emissions from sources undergoing renewal of a Part 70 license or the issuance of the initial Part 70 license are deemed to be receiving best practical treatment if those emissions are being controlled by pollution control apparatus which was installed less than 15 years prior to the date of license application approval, or an acceptable BPT analysis shows that those emissions are being controlled in a manner consistent with emission controls commonly used in sources of similar age and design in similar industries.

For emissions from existing sources controlled by pollution control apparatus which was installed less than 15 years prior to the date of license application approval, the applicant shall submit a summary of the pollution control apparatus for those emission sources.

If the pollution control apparatus has been installed 15 years or more from the date of license application approval, the applicant must demonstrate that each emissions unit is receiving BPT, and such demonstration shall consider the emission limit for which the air pollution control system was designed, the emission limitations adopted by the Department and in effect at the time of submission of an application for renewal, as well as the reliability, age, and life expectancy of the air pollution control system.

BPT shall not require the use of a lower sulfur content unless a lower sulfur fuel is required to comply with the applicable emissions standards or applicable ambient air quality standards.

BPT shall not force replacement of existing air pollution control equipment on the basis that more efficient or reliable air pollution control equipment is available at the time of renewal. However, BPT may require replacement with more efficient or reliable air pollution control equipment under the following conditions:

(i) The applicant is proposing replacement of the existing air pollution control equipment;

(ii) Any emissions unit violates the applicable emission limitation;

(iii) Additional reductions are necessary to achieve or maintain ambient air quality standards;

(iv) The Department determines that previously uncontrolled emissions should be controlled in order to prevent an unreasonable risk to the environment or public health;

(v) The Department determines that previously controlled emissions should be controlled to a greater efficiency considering the toxicity of air contaminants; or

(vi) Additional reductions are necessary to restore ambient increment even if that ambient increment was previously authorized to the owner or operator of an existing source.

BPT may require the use of additional instrumentation, operating practices, automated process controls, upgrading of component parts, emissions testing, requirements for continuous emission monitors, maintenance programs for air pollution control equipment, or recordkeeping to demonstrate performance of air pollution control systems or other mitigating measures.

(4) Reasonably Available Control Technology (RACT). The applicant for an existing source located in, or whose emissions of a federal nonattainment pollutant result in a significant impact to any federal nonattainment area shall include a summary of the conditions the source complies with to meet RACT requirements.

(5) Best Available Retrofit Technology (BART). An existing source with emissions that the Department has determined to cause adverse impact on visibility in any Class I area or any integral vista for that Class I area shall demonstrate that each emissions unit contributing to the adverse impact on visibility will receive BART as expeditiously as practicable, but no later than five years after the Department identifies BART.

(6) Hazardous Air Pollutants (HAPs). If an existing source is subject to a newly applicable HAP emission limitation, the application shall be submitted according to the schedule in subsection 6(B) and shall contain the HAP information as required by Section 6 of this Chapter.

(7) Ambient Air Quality Impact Analysis. If required by the Department pursuant to this Chapter, the applicant shall submit the results of any ambient air quality impact analyses, including an analysis of the impacts to Air Quality Related Values and impact on visibility if the Department determines that the source may affect ambient increments or Air Quality Related Values in any Class I area or integral vista to that Class I area. The analysis shall be performed pursuant to this Chapter. This analysis shall not be used in the completeness determination of the application.

(8) The certification of the responsible official pursuant to subsection 2(C) of this Chapter and proof of publication of the Public Notice of Intent to File pursuant to subsection 2(D) of this Chapter.

(9) A list all section 502(b)(1 0) changes that occurred during the term of the previous license.

E. License Content

The following elements shall be included in the Part 70 license:

(1) Emission Limitations and Standards. Emission limitations and standards, including those operational requirements and limitations that assure compliance with all Applicable requirements and state requirements at the time of the Part 70 license issuance.
(a) The Part 70 license shall:
(i) For Part 70 major sources, include all Applicable requirements for all relevant emissions units at the Part 70 major source.

(ii) For any nonmajor source subject to this Chapter under Section 1, include all Applicable requirements applicable to emissions units that cause the source to be a Part 70 source.

(b) The Part 70 license shall specify and reference the origin of and authority for each term or condition pertaining to all Applicable requirements and identify any difference in form as compared to the Applicable requirement upon which the term or condition is based.

(c) Any terms and conditions included in the Part 70 license that are not required or federally enforceable under the CAA or under any of its Applicable requirements shall be specifically designated as state enforceable.

(d) If an applicable implementation plan allows a determination of an alternative emission limit at a Part 70 source, equivalent to that contained in the plan, which is to be made in the Part 70 license issuance, renewal, or amendment process, and the Department elects to use such process, any Part 70 license containing such equivalency determination will contain provisions to ensure that any resulting emission limit has been demonstrated to be quantifiable, accountable, enforceable, and based on replicable procedures.

(e) Terms and conditions for reasonably anticipated operating scenarios identified by the source in its application as approved by the Department. Such terms and conditions:
(i) Will require the source, contemporaneously with making a change from one operating scenario to another, to record in a log at the licensed facility a record of the scenario under which it is operating;

(ii) May extend the permit shield described in subsection 2(I) of this Chapter to all terms and conditions pertaining to Applicable requirements under each such operating scenario; and

(iii) Must ensure that the terms and conditions of each such alternative scenario meet all Applicable requirements and state requirements and the requirements of this Chapter.

(f) Terms and conditions, if the applicant requests them, for the trading of emissions increases and decreases in the licensed facility, to the extent that the Applicable requirements provide for trading such increases and decreases without a case-by-case approval of each emissions trade. Such terms and conditions:
(i) Will include all terms required to determine compliance;

(ii) May extend the permit shield described in subsection 2(I) of this Chapter to all terms and conditions pertaining to Applicable requirements that allow such increases and decreases in emissions; and

(iii) Must meet all Applicable requirements, state requirements, and requirements of this Chapter.

(2) Compliance Assurance Requirements
(a) Monitoring Requirements
(i) All emissions monitoring and analysis procedures or test methods required under the Applicable requirements and state requirements. This includes any procedures and methods promulgated pursuant to CAA Section 114(a)(3) pertaining to the enhanced monitoring and compliance certification requirements or CAA Section 504(b) pertaining to the monitoring and analysis provisions;

(ii) Where the Applicable requirement or state requirement does not require periodic testing or instrumental or non-instrumental monitoring (which may consist of recordkeeping designed to serve as monitoring), periodic monitoring sufficient to yield reliable data from the relevant time period that are representative of the source's compliance with the Part 70 license.

Such monitoring requirements shall assure use of terms, test methods, units, averaging periods, and other statistical conventions consistent with the Applicable requirement. Recordkeeping provisions may be sufficient to meet the requirements of this paragraph (subsection 3(E)(2)); and

(iii) As necessary, requirements concerning the use, maintenance, and, where appropriate, installation of monitoring equipment or methods.

(b) Recordkeeping Requirements. The Part 70 license shall incorporate applicable recordkeeping requirements and require, where applicable, the following records of required monitoring information:
(i) The date, place as defined in the Part 70 license, and time of sampling or measurements;

(ii) The date(s) analyses were performed;

(iii) The company or entity that performed the analyses;

(iv) The analytical techniques or methods used;

(v) The results of such analyses; and

(vi) The operating conditions as existing at the time of sampling or measurement.

(c) Reporting Requirements. The Part 70 license shall incorporate applicable reporting requirements, including the submittal at least once every six months of summary reports of any required periodic monitoring in the semiannual reports. The semiannual reports must indicate all instances of deviations from license requirements.

(d) Compliance Requirements
(i) Compliance certification, testing, monitoring, reporting, and recordkeeping requirements sufficient to assure compliance with the terms and conditions of the Part 70 license. Any document (including reports) required by a Part 70 license shall contain a certification by a responsible official.

(ii) For Part 70 sources out of compliance at time of issuance of the Part 70 license, a schedule of compliance consistent with subsection 2(B)(11) of this Chapter;

(iii) Progress reports consistent with an applicable schedule of compliance and § 2(B)(11) of this Chapter to be submitted at least every six months, or at a more frequent period if specified in the Applicable requirement or by the Department. Such progress reports shall contain the following:
(a) Dates for achieving the activities, milestones, or compliance required in the schedule of compliance, and dates when such activities, milestones, or compliance were achieved; and

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

(iv) Requirements for compliance certification with terms and conditions contained in the Part 70 license, including emission limitations, standards, or work practices and such additional requirements as may be specified pursuant to CAA Sections 114(a)(3) and 504(b).

(3) Part 70 licenses for temporary sources shall include conditions that will assure compliance with all Applicable requirements and state requirements at all authorized locations, the requirements of this Chapter and the requirement that the owner or operator notify the Department at least 10 days in advance of each change in location.

(4) Permit Shield. The permit shield as specified in subsection 2(I) of this Chapter applies to the terms and conditions of the Part 70 license, except where the Part 70 license expressly identifies those terms and conditions pertaining to Applicable and state requirements which do not have a permit shield. In addition, the Part 70 license will include the Department's determination or a concise summary thereof for other Applicable and state requirements specifically identified by the applicant as being not applicable to the Part 70 source.

(5) HAPs. If an existing source is subject to a HAP emission limitation, the Part 70 license will contain the applicable requirements of the HAP emission limitation as specified in subsection 6(E) of this Chapter in addition to the relevant requirements of subsection 3(E).

(6) Ambient Air Quality Impact Analysis. The Part 70 license will include a section summarizing any required ambient air quality impact analysis.

(7) Standard Statements and Conditions. All Part 70 licenses will include the following standard statements and conditions:
(a) Standard Statements
(i) The Part 70 license does not convey any property rights of any sort, or any exclusive privilege.

(ii) All terms and conditions are enforceable by EPA and citizens under the CAA unless specifically designated as state enforceable.

(iii) The licensee may not use as a defense in an enforcement action that the disruption, cessation, or reduction of licensed operations would have been necessary in order to maintain compliance with the conditions of the air emission license.

(iv) Notwithstanding any other provision in the State Implementation Plan approved by the EPA or Section 114(a) of the CAA, any credible evidence may be used for the purpose of establishing whether a person has violated or is in violation of any statute, rule, regulation, or Part 70 license requirement.

(v) Compliance with the conditions of this Part 70 license will be deemed compliance with any applicable requirement as of the date of license issuance and is deemed a permit shield, provided that:
(a) Such applicable and state requirements are included and are specifically identified in the Part 70 license, except where the Part 70 license term or condition is specifically identified as not having a permit shield; or

(b) The Department, in acting on the Part 70 license application or revision, determines in writing that other requirements specifically identified are not applicable to the source, and the Part 70 license includes the determination or a concise summary thereof.

Nothing in this section or any Part 70 license alters or affects the provisions of Section 303 of the CAA (emergency orders), including the authority of EPA under Section 303; the liability of an owner or operator of a source for any violation of applicable requirements prior to or at the time of permit issuance; or the ability of EPA to obtain information from a source pursuant to Section 114 of the CAA.

(vi) The Part 70 license shall be reopened for cause by the Department or EPA, prior to the expiration of the Part 70 license, if:
(a) Additional applicable requirements under the CAA become applicable to a Part 70 major source with a remaining Part 70 license term of three or more years. However, no reopening is required if the effective date of the requirement is later than the date on which the Part 70 license is due to expire, unless the original Part 70 license or any of its terms and conditions has been extended pursuant to 06-096 C.M.R. ch. 140;

(b) Additional requirements (including excess emissions requirements) become applicable to a Title IV source under the acid rain program. Upon approval by EPA, excess emissions offset plans will be deemed to be incorporated into the Part 70 license;

(c) The Department or EPA determines that the Part 70 license contains a material mistake or that inaccurate statements were made in establishing the emissions standards or other terms or conditions of the Part 70 license; or

(d) The Department or EPA determines that the Part 70 license must be revised or revoked to assure compliance with the applicable requirements.

The licensee shall furnish to the Department within a reasonable time any information that the Department may request in writing to determine whether cause exists for modifying, revoking and reissuing, or terminating the Part 70 license or to determine compliance with the Part 70 license.

(vii) No license revision or amendment is required under any approved economic incentives, marketable licenses, emissions trading, and other similar programs or processes for changes that are provided for in the Part 70 license.

(b) Standard Conditions
(i) Employees and authorized representatives of the Department shall be allowed safe access to the licensee's premises during business hours or any time during which any emissions units are in operation and at such other times as the Department deems necessary for the purpose of performing tests, collecting samples, conducting inspections, or examining and copying records relating to emissions and this license;

(ii) The licensee shall acquire a new or amended air emission license pursuant to 06-096 C.M.R. ch. 115 prior to commencing construction of a modification, unless specifically provided for in this Chapter or 06-096 C.M.R. ch. 115.

(iii) The licensee shall establish and maintain a continuing program of best management practices for suppression of fugitive particulate matter during any period of construction, reconstruction, or operation which may result in fugitive dust, and shall submit a description of the program to the Department upon request.

(iv) The licensee shall pay the annual air emission license fee to the Department, calculated pursuant to 38 M.R.S. § 353.

(v) The licensee shall maintain and operate all emissions units, air pollution controls, and monitoring systems required by the air emission license in a manner consistent with good air pollution control practice for minimizing emissions.

(vi) The licensee shall maintain sufficient records to accurately document compliance with emission standards and license conditions and shall maintain such records for a minimum of six years. In addition, the licensee shall retain records of all required monitoring data and support information for a period of at least six years from the date of the monitoring sample, measurement, report, or application. Support information includes all calibration and maintenance records and all original strip- chart recordings for continuous monitoring instrumentation, and copies of all reports required by the Part 70 license. The records shall be submitted to the Department upon written request or in accordance with other provisions of this license.

(vii) The licensee shall comply with all terms and conditions of the air emission license. The submission of notice of intent to reopen for cause by the Department, the filing of an appeal, the notification of planned changes or anticipated noncompliance by the licensee, or the filing of an application by the licensee for the renewal of a Part 70 license or amendment does not stay any condition of the Part 70 license.

(viii) In accordance with the Department's Performance Testing Guidance and 40 C.F.R. Part 60 or other method approved or required by the Department, the licensee shall:
(a) Submit to the Department for approval a test protocol at least 30 calendar days prior to the scheduled date of the emissions test, unless the Department agrees to a shorter submission timeframe;

(b) Perform emissions testing under circumstances representative of the facility's normal process and operating conditions:
(i) within 60 calendar days of receipt of a notification to test from the Department or EPA, if visible emissions, equipment operating parameters, staff inspection, air monitoring or other cause indicate to the Department that equipment may be operating out of compliance with emission standards or license conditions;

(ii) to demonstrate compliance with the applicable emission standards; or

(iii) pursuant to any other requirement of this license to perform emissions testing.

(c) Install or make provisions to install test ports that meet the criteria of 40 C.F.R. Part 60, Appendix A, and test platforms, if necessary, and other accommodations necessary to allow emissions testing; and

(d) Submit a written report to the Department within 30 days from date of test completion, unless an extension is granted by the Department.

(ix) If the results of an emissions test performed under circumstances representative of the facility's normal process and operating conditions indicates emissions in excess of the applicable standards, then:
(a) Within 30 days following receipt of such test results, the licensee shall re-test the non-complying emission source under circumstances representative of the facility's normal process and operating conditions and in accordance with the Department's air emission compliance test protocol and 40 C.F.R. Part 60 or other method approved or required by the Department;

(b) The days of violation will be presumed to include the date of the emissions test and each and every day of operation thereafter until compliance is demonstrated under normal and representative process and operating conditions, except to the extent that the facility can prove to the satisfaction of the Department that there were intervening days during which no violation occurred or that the violation was not continuing in nature; and

(c) The licensee may, upon the approval of the Department following the successful demonstration of compliance at alternative load conditions, operate under such alternative load conditions on an interim basis until a demonstration of compliance under normal and representative process and operating conditions is completed.

(x) The licensee shall maintain records of all deviations from license requirements. Such deviations shall include, but are not limited to, malfunctions, failures, downtime, and any other similar change in operation of air pollution control systems or the emissions unit itself that is not consistent with the terms and conditions of the air emission license.
(a) The licensee shall notify the Department within 48 hours of a violation of any emission standard or a malfunction or breakdown in any component part that causes a violation of any emission standard, and shall report the probable cause, corrective action, and any excess emissions in the units of the applicable emission limitation;

(b) The licensee shall submit a report to the Department on a quarterly basis describing all violations of any emission standard.

Pursuant to 38 M.R.S. §349(9), the Commissioner may exempt from civil penalty an air emission in excess of license limitations if the emission occurs during start-up or shutdown or results exclusively from an unavoidable malfunction entirely beyond the control of the licensee and the licensee has taken all reasonable steps to minimize or prevent any emission and takes corrective action as soon as possible. There may be no exemption if the malfunction is caused, entirely or in part, by poor maintenance, careless operation, poor design, or any other reasonably preventable condition or preventable equipment breakdown. The burden of proof is on the licensee seeking the exemption under this subsection.

Note: Exemptions from civil penalty granted under this statutory authority do not prevent other parties, including EPA and citizens, from pursuing actions allowed under the Clean Air Act, including pursuing civil actions for the same violations.

(c) All other deviations from permit requirements shall be reported to the Department in the facility's semiannual report.

(xi) Upon the written request of the Department, the licensee shall establish and maintain such records; make such reports; install, use, and maintain such monitoring equipment; sample such emissions (in accordance with such methods, at such locations, at such intervals, and in such manner as the Department shall prescribe); and provide other information as the Department may reasonably require to determine the licensee's compliance status.

(xii) The licensee shall submit semiannual reports of any required periodic monitoring by January 31 and July 31 of each year, or on an equivalent schedule specified in the license. All instances of deviations from Part 70 license requirements must be clearly identified in such reports. All required reports must be certified by a responsible official.

(xiii) The licensee shall submit a compliance certification to the Department and EPA annually by January 31 of each year, or more frequently if specified in the Applicable requirement or by the Department. The compliance certification shall include the following:
(a) The identification of each term or condition of the Part 70 license that is the basis of the certification;

(b) The compliance status;

(c) Whether compliance was continuous or intermittent;

(d) The method(s), specified in the source's license and information not specifically required by the license, used for determining the compliance status of the source, currently and over the reporting period; and

(e) Such other facts as the Department may require to determine the compliance status of the source.

F. Criteria for License Approval

The Department will grant the Part 70 license, if the following criteria are met:

(1) The Department has received a complete application for a Part 70 license pursuant to this Chapter.

(2) The emissions will receive BPT, including, but not limited to, the requirements specified in subsection 3(D)(3) of this Chapter.

(3) The emissions will not violate state standards adopted by the Department pursuant to 38 M.R.S. §585 or can be controlled so as not to violate the same.

(4) The emissions either alone or in conjunction with existing emissions will not violate or can be controlled so as not to violate ambient air quality standards including, but not limited to, ambient increments as adopted by the Department pursuant to 38 M.R.S. § 584; or, for those sources locating within or significantly impacting a federal nonattainment area, the impact to ambient air quality standards is consistent with any plan demonstrating Reasonable Further Progress as defined in Section 171 of the CAA.

(5) If the source is subject to a HAP emission limitation, the source has met the criteria as specified in subsection 6(F) of this Chapter.

(6) If the Department determines that the emissions from an existing source are reasonably attributable to the adverse impact on Air Quality Related Values in any Class I area, BART, as specified in subsection 3(D)(5) of this Chapter, will apply to the pertinent emissions.

(7) The conditions of the Part 70 license provide for compliance with all Applicable requirements, state requirements and the relevant requirements of this Chapter.

(8) The Part 70 license will specifically designate as state-enforceable any terms and conditions included in the Part 70 license that are not required or federally enforceable under the CAA or under any of its Applicable requirements.

(9) Public participation and affected states and EPA notification and review procedures for issuance of a Part 70 license pursuant to subsections 3(C) and 3(G) of this Chapter have been complied with.

(10) All control technology requirements, including, but not limited to, BPT, BACT, RACT, MACT, LAER, and other operating limitations, imposed in the air emission license will be met.

(11) If the applicant proposes to change the emission limit upon which an air quality impact analysis was based, the applicant may be required to provide a new ambient air quality impact analysis for the new emission limit.

(12) If an air emission license renewal can be granted only if the licensee installs additional emissions controls or other mitigating measures, then the licensee may continue to emit pollutants from emission sources that will receive these controls or measures up to the same level allowed in its existing license as long as the additional emission controls or mitigating measures are fully operational as soon as practicable but in no case later than 24 months after the Department issues the license renewal, except as provided in this subsection. After a showing by the licensee that it cannot install and bring to full operation the required emission controls or mitigating measures within the 24 month period, the Department may establish a later date for the installation and operation. No such compliance schedule will excuse any violation of an Applicable requirement. This provision is limited to state-only requirements.

G. Draft Notification

(1) A comment period of 30 days will be provided for the public and affected states on the Part 70 draft license, as described in subsection 2(K) of this Chapter.

(2) EPA will have a review period of 45 days on the Part 70 draft/proposed license as described in subsection 2(L) of this Chapter. This period may run concurrently with the comment period in subsection 3(G)(1) above unless the Department receives comments from the public or affected states that lead the Department to make substantive changes to the draft/proposed license. In such case, the 45-day review period for EPA resets and begins anew upon resubmittal of the proposed license.

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