Section 336.1213. Content of renewable operating permit.

(1) Each renewable operating permit shall include all of the following general provisions:

(a)    A person shall comply with all conditions of the renewable operating permit. Any permit noncompliance constitutes a violation of the act and is grounds for enforcement action, for permit revocation or revision, or for denial of the renewal of a renewable operating permit. All terms and conditions of a renewable operating permit that are designated in the permit as federally enforceable pursuant to subrule (5) of this rule, are enforceable by the administrator of the United States environmental protection agency and by citizens under the provisions of the clean air act.

(b)   It shall not be a defense for a person in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of the permit.

(c)   The renewable operating permit may be modified, revised, or revoked for cause. The filing of a request by a person for a permit modification, revision, or termination, or a notification of planned changes or anticipated noncompliance does not stay any permit condition. This does not supersede or affect the ability of a person to make changes, at the person's own risk, pursuant to R 336.1215 and R 336.1216.

(d)    A person shall allow the department or an authorized representative of the department, upon presentation of credentials and other documents as may be required by law and upon stating the authority for and purpose of the investigation, to perform any of the following activities:

(i)   Enter, at reasonable times, a stationary source or other premises where emissions- related activity is conducted or where records must be kept under the conditions of the permit.

(ii)   Have access to and copy, at reasonable times, any records that must be kept under the conditions of the permit.

(iii)   Inspect, at reasonable times, any of the following:

(A)  Any stationary source.

(B)  Any emission unit.

(C)  Any equipment, including monitoring and air pollution control equipment.

(D)    Any work practices or operations regulated or required under the renewable operating permit.

(iv)   As authorized by section 5526 of the act, sample or monitor at reasonable times substances or parameters for the purpose of assuring compliance with the permit or applicable requirements.

(e)      A person 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, revising, or revoking the permit or to determine compliance with the permit. Upon request, a person shall also furnish to the department copies of any records that are required to be kept as a term or condition of the renewable operating permit. For information which is claimed by the person to be confidential, consistent with the requirements of 1976 PA 442, MCL 15.231, and known as the freedom of information act, the person may also be required to furnish the records directly to the United States environmental protection agency together with a claim of confidentiality.

(f)   A challenge by any person, the administrator of the United States environmental protection agency, or the department to a particular condition or a part of a renewable operating permit shall not set aside, delay, stay, or in any way affect the applicability or enforceability of any other condition or part of the renewable operating permit.

(g)     A person shall pay fees consistent with the fee schedule and requirements pursuant to section 5522 of the act.

(h)    The renewable operating permit does not convey any property rights or any exclusive privilege.

(i)   Federally enforceable permit to install terms and conditions incorporated into the renewable operating permit are identified within the renewable operating permit as being established pursuant to R 336.1201.

(2)    Each renewable operating permit shall contain emission limits and standards, including operational requirements and limits that ensure compliance with all applicable requirements at the time of permit issuance. In addition, each renewable operating permit may contain additional limits agreeable to both the applicant and the department, provided that these limits are not contrary to R 336.1213 or the clean air act. The following provisions apply to emission limits and standards:

(a)     The renewable operating permit shall specify and reference the underlying applicable requirement for each term or condition and identify any difference in form as compared to the applicable requirement upon which the term or condition is based.

(b)   The renewable operating permit shall state that, where an applicable requirement is more stringent than an applicable requirement of regulations promulgated for affected sources under title IV of the clean air act, both provisions shall be incorporated into the permit.

(c)    If the state implementation plan allows for an alternative emission limit that is equivalent to the limit contained in the state

implementation plan, any renewable operating permit containing the equivalent alternative emission limit shall contain terms and conditions to ensure that any such

emission  limit  is   quantifiable,  accountable,   enforceable,  and  based   on  replicable procedures.

(d)    Any term or condition established as a limit on the potential to emit of the stationary source shall be consistent with the requirements of R 336.1205(1)(a). For each such limit on the potential to emit of the stationary source, the permit shall specify and reference any requirements that would otherwise be applicable to the source or emission unit.

(3)   The renewable operating permit shall contain terms and conditions necessary to ensure that sufficient testing, monitoring, recordkeeping, reporting, and compliance evaluation activities will be conducted to determine the status of compliance of the stationary source with the emission limitations and standards contained in the renewable operating permit. The following provisions apply to testing, monitoring, recordkeeping, reporting, and compliance evaluation activities:

(a)    With respect to testing and monitoring, each renewable operating permit shall contain terms and conditions necessary to ensure compliance with all of the following:

(i)     The use of all emissions monitoring and analysis procedures or test methods required by the applicable requirements, including 40 C.F.R. part 64 and any other procedures and methods promulgated pursuant to sections 504(b) or 114(a)(3) of the clean air act. Title 40 C.F.R. part 64 is adopted by reference in R 336.1299. If more than 1 monitoring or testing requirement applies, the permit may specify a streamlined set of monitoring or testing requirements, provided the specified monitoring or testing is adequate to assure compliance at least to the same extent as the monitoring or testing applicable requirements that were not included in the permit as a result of such streamlining.

(ii)       Where the applicable requirement does not require periodic testing or instrumental or no instrumental monitoring, which may consist of recordkeeping designed to serve as monitoring, the use of periodic monitoring sufficient to yield reliable data from the relevant time period that are representative of the stationary source's compliance with the permit, as reported pursuant to subrule (3)(c) of this rule. The monitoring requirements shall ensure use of terms, test methods, units, averaging periods, and other statistical conventions consistent with the applicable requirement. Recordkeeping provisions shall be sufficient to meet the requirements of subrule (3)(b) of this rule.

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

(b)    With respect to recordkeeping, each renewable operating permit shall contain terms and conditions necessary to ensure compliance with the recordkeeping requirements specified in the applicable requirements. Each renewable operating permit shall also contain terms and conditions that require, where appropriate, both of the following:

(i)   Records of any periodic emission or parametric monitoring that include all of the following information:

(A)  The date, location, time, and method of sampling or measurements.

(B)  The dates analyses of the samples were performed.

(C)  The company or entity that performed the analyses of the samples.

(D)  The analytical techniques or methods used.

(E)  The results of the analyses.

(F)     The related operating conditions or parameters that existed at the time of sampling or measurement.

(ii)   Retention of records of all required monitoring data and support information for a period of not less than 5 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, or other original data records, for continuous monitoring instrumentation and copies of all reports required by the renewable operating permit.

(c)     With respect to reporting and the certification of reports, each renewable operating permit shall contain terms and conditions necessary to insure compliance with the reporting requirements specified in the applicable requirements. Except as provided subdivision (iii)(B) of this subdivision, any document, including reports, required to be submitted to the department as a term or condition of a renewable operating permit shall include a certification by a responsible official which states that, based on information and belief formed after reasonable inquiry, the statements and information in the document are true, accurate, and complete. Each renewable operating permit shall also contain terms and conditions for all of the following:

(i)   The submittal of reports of any required monitoring at least once every 6 months. All instances of deviations from permit requirements during the reporting period shall be clearly identified in the reports. Each report submitted pursuant to this subdivision shall include a certification by a responsible official which states that, based on information and belief formed after reasonable inquiry, the statements and information in the report are true, accurate, and complete.

(ii)   The prompt reporting of deviations from permit requirements. Prompt reporting shall be defined as follows, unless otherwise provided in the renewable operating permit:

(A)   For deviations that exceed the emissions allowed under the renewable operating permit, prompt reporting means reporting consistent with the requirements of R 336.1912. All reports submitted pursuant to this paragraph shall be promptly certified as specified in paragraph (iii) of this subdivision.

(B)     For deviations which exceed the emissions allowed under the renewable operation permit and which are not reported pursuant to R 336.1912 due to the duration of the deviation, prompt reporting means the reporting of all deviations in the reports required by paragraph (i) of this subdivision. The report shall describe reasons for each deviation and the actions taken to minimize or correct each deviation.

(C)    For deviations that do not exceed the emissions allowed under the renewable operating permit, prompt reporting means the reporting of all deviations in the reports required by paragraph (i) of this subdivision. The report shall describe the reasons for each deviation and the actions taken to minimize or correct each deviation.

(iii)     For reports required pursuant to paragraph (ii) of this subdivision, prompt certification of the reports means either of the following:

(A)   Submitting a certification by a responsible official with each report which states that, based on information and belief formed after reasonable inquiry, the statements and information in the report are true, accurate, and complete.

(B)  Submitting, within 30 days following the end of a calendar month during which 1 or more prompt reports of deviations from the emissions

allowed under the permit were submitted to the department pursuant to paragraph (ii) of this subdivision, a certification by a responsible official which states that, based on information and belief formed after reasonable inquiry, the statements and information contained in each of the reports submitted during the previous month were true, accurate, and complete. The certification shall include a listing of the reports that are being certified. Any report submitted pursuant to paragraph (ii) of this subdivision that will be certified on a monthly basis pursuant to this paragraph shall include a statement that certification of the report will be provided within 30 days following the end of the calendar month.

(4)   With respect to compliance, each renewable operating permit shall contain terms and conditions necessary to ensure each of the following:

(a)  Incorporation into the renewable operating permit of a schedule of compliance.

(b)   For a stationary source that is not in compliance with all applicable requirements at the time of issuance of a renewable operating permit, the submission of progress reports to the department, consistent with an applicable schedule of compliance, at least semiannually or more frequently if specified in an applicable requirement or by the department in the permit. Progress reports shall contain the information specified in both of the following provisions:

(i)   The date or dates for achieving the activities, milestones, or compliance required in the schedule of compliance, and the date or dates when the activities, milestones, or compliance were achieved.

(ii)   An explanation of why any dates in the schedule of compliance were not or will not be met and a description of any preventive or corrective measures adopted.

(c)     A requirement that, at least annually, or more frequently if specified in an applicable requirement or by the department in the renewable operating permit, the responsible official shall certify, in writing, to the department and to the United States environmental protection agency, that the stationary source is and has been in compliance with all terms and conditions contained in the renewable operating permit, except for any deviations from compliance that have been or are being reported to the department. The certification shall state that, based on information and belief formed after reasonable inquiry, the statements and information in the certification are true, accurate, and complete.  Each certification of compliance shall include all of the following information:

(i)   The identification of each term or condition of the permit that is the basis of the certification.

(ii)    The compliance status of the stationary source with respect to each identified term or condition.

(iii)   Whether compliance was continuous or intermittent.

(iv)   The methods used for determining the compliance status of the stationary source, currently and over the reporting period consistent with subrules (3)(a), (b), and (c) of this rule.

(v)    Other facts as the department may require in the permit that are necessary to determine the compliance status of the stationary source.

(5)   Each renewable operating permit shall provide for the following:

(a)     Each renewable operating permit shall specifically designate as not being enforceable under the clean air act any terms and conditions included in the permit that are not required under the clean air act or under any of its applicable requirements.

Terms and conditions so designated are not subject to the requirements for review by the United States environmental protection agency or affected states under R 336.1214.

(b)     Each renewable operating permit shall specifically designate each federally enforceable applicable requirement previously established in a permit to install pursuant to R 336.1201.

(6)   Both of the following provisions apply to permit shields:

(a)   Except as provided in subdivision (b) of this subrule, each renewable operating permit shall include a permit shield provision stating that compliance with the conditions of the permit shall be considered compliance with any applicable requirements as of the date of permit issuance, if either of the following provisions is satisfied:

(i)    The applicable requirements are included and are specifically identified in the permit.

(ii)    The permit includes a determination or a concise summary of the determination by the department that other specifically identified requirements are not applicable to the stationary source.

(b)   Nothing in this subrule or in any renewable operating permit shall alter or affect any of the following:

(i)   The provisions of section 303 of the clean air act, emergency orders, including the authority of the administrator of the United States environmental protection agency under that section.

(ii)    The liability of an owner or operator of a stationary source for any violation of applicable requirements before or at the time of permit issuance.

(iii)    The applicable requirements of the acid rain program, consistent with section 408(a) of the clean air act.

(iv)     The ability of the United States environmental protection agency to obtain information from a stationary source pursuant to section 114 of the clean air act.

(7)   Each renewable operating permit shall be issued for a fixed term of not more than 5 years. Renewable operating permits that have terms of less than 5 years may be issued with the agreement of the department and the permit applicant. The terms and conditions of a renewable operating permit for affected sources under title IV of the clean air act that address the requirements of title IV shall be issued for a term of 5 years. The date of expiration of the renewable operating permit shall be specified in the permit.

(8)    A renewable operating permit shall include terms and conditions that allow a stationary source to switch its operation between reasonably anticipated operating scenarios if the scenarios have been identified by the stationary source in its application and found to be approvable by the department. The terms and conditions shall provide for all of the following:

(a)    Require the stationary source, contemporaneously with making a change from one operating scenario to another, to record, in a log at the stationary source, a record of the scenario under which the source is operating.

(b)    Extend the permit shield described in subrule (6) of this rule to all terms and conditions under each approved operating scenario.

(c)   Ensure that the terms and conditions of each approved alternative scenario meet all applicable requirements.

(9)   A renewable operating permit shall include terms and conditions for the trading of emissions increases and decreases among process emission units within the stationary

source solely for the purpose of complying with an emissions cap that is established in the permit independent of otherwise applicable requirements, if the terms and conditions have been requested by a person in an application for a renewable operating permit. If a person wishes to include the terms and conditions in a renewable operating permit, the permit application shall include proposed replicable procedures and permit terms that the person believes ensure the emissions trades are quantifiable and enforceable. The terms and conditions shall include those necessary to meet the requirements of subrules (2) to

(4)   of this rule. The department shall not be required to include in the emissions trading provisions any emission units for which emissions are not quantifiable or for which there are no replicable procedures to enforce the emissions trades. The permit shall also require compliance with all applicable requirements. Both of the following provisions apply to the trading of emissions increases and decreases among emission units solely for the purpose of complying with an emissions cap:

(a)    A written notification to the department and the United States environmental protection agency is required 7 days in advance of any emissions trade under this subrule. The notice shall state when the change will occur and shall describe the changes in emissions that will result and how these increases and decreases in emissions will comply with the terms and conditions of the permit.

(b)   The permit shield described in subrule (6) of this rule shall extend to terms and conditions that allow the increases and decreases in emissions.

(10)    In addition to the other requirements of this rule, each renewable operating permit for an affected source under title iv of the clean air act shall include a permit condition prohibiting emissions exceeding any allowances that an affected source lawfully holds as of the allowance transfer deadline pursuant to the federal acid rain program, adopted by reference in R 336.1299. All of the following apply to allowances:

(a)     A permit revision shall not be required for increases in emissions that are authorized by allowances acquired pursuant to title IV of the clean air act if the increases do not require a permit revision under any other applicable requirement.

(b)    A limit shall not be placed on the number of allowances held by the affected source. The affected source may not, however, use allowances as a defense to noncompliance with any other applicable requirement.

(c)   Any allowance shall be accounted for according to the procedures established in regulations promulgated under title IV of the clean air act.

(11)   A renewable operating permit for a temporary source may authorize emissions from a stationary source at multiple temporary locations. An affected source under title IV of the clean air act shall not be permitted as a temporary source. In addition to the other requirements of this rule, permits for temporary sources shall include all of the following provisions:

(a)   Conditions that will assure compliance with all applicable requirements at all authorized locations.

(b)   Requirements that the owner or operator notify the department not less than 10 days in advance of each change in location.

(c)   Conditions that assure compliance with all other provisions of this rule.

(12)    A renewable operating permit shall contain terms and conditions allowing for emission averaging and emission reduction credit trading pursuant to any applicable interstate   or  regional  emissions  trading  program  that   has  been  approved   by  the

administrator  of  the  United   States  environmental   protection  agency  as   a  part  of Michigan's state implementation plan.

History: 1995 AACS; 1996 AACS; 2001 AACS; 2008 AACS.